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HomeMy WebLinkAboutOMEGA GROUP, THE 3City of Santa Ana Clerk of fhe Council AGREEMENT TERMINATION it K1 b M ) 39 Please complete his form when the attached agreement is no longer in aged Relum form tc the Clerk of ine Council Office (M301GIiY 0. S;, viA ANA ClE(iN V COUNCIL No. N•aDUg'03I wasoomplafedoo ?? f5?09 Call 647?620if you have arty quesdooa The agreement with n'. andfoalpaymealhasbeenmade. PO Depadmeor PhaoelEsl., ??`?? Sigoefure, Dale: 11 11 I n aBVB?r$a)a) 1143URAhJCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL DATE: 3 ~~`~- O$ ~ ~ 8 b~Brek~eld SOFTWARE MAINTENANCE AGREEMENT THIS AGREEMENT is entered into on February 5, 2008, by and between The Omega Group, Inc., a California corporation ("Omega") and the City of Santa Ana, a charter city and municipal corporation of the State of Califomia ("City"). RECITALS: N-2008-031 A. The parties entered into Contract A-2003-224, dated July I, 2003, by which Omega agreed to create, install and maintain a GIS based crime analysis system. B. The City desires to hire Omega to provide maintenance and support services of its GIS based crime analysis system. C. Omega retains al] necessary proprietary rights, patents or and copyrights required to perform the services detailed in this Agreement. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Consultant shall perform those maintenance and support services for the Omega GIS based crime analysis system as set forth in Exhibit A to this Agreement. 2. COMPENSATION The City agrees to pay, and Omega agrees to accept as total payment for its services, a fee of $2,495.00 for desktop support and an additional $3,495.00 for web support, for a total annual fee of $5,990.00, which shall be paid within 30 days of execution of this Agreement. 3. TERM This Agreement shall commence on October 15, 2007and terminate on October 15, 2008, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Chief of Police and the City Attorney. 4. INDEPENDENT CONTRACTOR Omega shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Omega performs the services which are the subject matter of this Agreement; however, the services to be provided by Omega shall be provided in a manner consistent with all applicable standards and regulations governing such services. Omega shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Reserved. 6. lNDEMNlFlCA TlON Omega shall hold and keep harmless the City and all officers, employees. volunteers and agents thereof from damages, costs or expenses in law or equity that may at any time arise or be set up because of injuries to or death of persons or damage to, loss, or theft of property, including City's personnel and property, or from any claim that Omega's services or products infringe a proprietary right, patent or copyright arising by reason of, or in the course of, Omega's or Omega's contractors, subcontractors, agents, employees, or other persons acting on their behalfs negligent performance of this contract; arising out of Omega's or Omega's contractors, subcontractors, agents, employees, or other persons acting on their behalfs performance of this contract, and Omega, at its own expense, cost and risk, shall defend, with counsel appointed by City, any and all actions, suits or other legal proceedings that may be brought or instituted against the City or officers, employees, volunteers or agents thereof on any such claim or demand, and payor satisfy any judgment that may be rendered against the City or officers, employees, volunteers or agents thereof in any such action, suit or legal proceedings. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If Omega receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Omega agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of Omega disclosed in a publicly available source; (c) is in rightful possession of Omega without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by Omega without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Omega covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Chief of Police City of Santa Ana 60 Civic Center Plaza (M-18) Santa Ana, California 92702 Attn: Robert Brekenfeld To Omega: The Omega Group 5160 Carroll Canyon Rd., I" Floor San Diego, California 92121 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement regarding maintenance and support of the system between the City and Omega, and supersedes any and all other agreements, oral or written, between the parties regarding the same subject. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Omega nor the City. II. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Omega, Omega may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent ofthe City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by either party upon thirty (30) days written notice of termination. In such event, Omega shall be entitled to receive and the City shall pay Omega compensation for all services performed by Omega prior to receipt of such notice oftermination, subject to the following conditions: a. As a condition of such payment, the Chief of Police may require Omega to deliver to the City all work product completed as of such date, and in such case such work product shall be the property ofthe City unless prohibited by law, and Omega consents to the City's use thereoffor such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION Omega shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Omega affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any ofthe clauses of this Agreement shall be determined and governed by the laws ofthe State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Omega shall, throughout the term ofthis Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Omega shall notii)' the City immediately and in writing of its inability to obtain or maintain such penn its, licenses, approvals, waivers, and exemptions. Said inability shall be cause for tennination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each ofthe tenns of this Agreement, and shall indemnifY City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as iffully set forth in the body ofthis Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first written above. A !TEST: CITY OF SANTA ANA ~~ City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney . / :u'! By: /:,. ,II 11~^.~-,.4!r\..JLQi-.1...<..,-/ Laura Sheedy .. i Assistant City Attorney RECOMMENDED FOR APPROVAL: ~~ PAUL M. WALTERS Chief of Police (NAME)N ') ",1" U' r (Title) t\ ,"'- 1<..._I,\U.e e, f(-es l'd~-t- EXHIBIT A General Terms To be eligible for Omega support services, users should be aware of, and adhere to the following terms: I. You must register each software installation with The Omega Group. The Project Manager will assist with software registration. 2. The Omega Group provides technical support for Omega software and/or the data import interface only. Specific items not included under technical support are provided below (Section: Limitations). 3. The initial Omega software application implementation and installation must be performed by an Omega Project Manager. This requirement assures that telephone support, future software service packs, and major version upgrades can be administered effectively. 4. The Support Program must be renewed annually, to continue support services. 5. Terms are subject to change without notice. 6. Should there be a lapse in the support services, all past due fees must be paid to restart service. Limitations Users should be aware of the following limitations regarding support services: I. Omega's technical support is limited to unmodified Omega software technology. 2. Technical support is not a replacement for training. Customized training is available from Omega at an additional cost. 3. Technical support does not include advanced customization and/or additional development of the Omega application. These services can be provided for additional cost. 4. The Omega Group does not provide technical support for applications that may interface with Omega software. 5. The Omega Group's Maintenance Program is not a replacement for ESRl's software Maintenance Program and does not include costs for ESRI's ArcView andlor ArclMS. 6. The Maintenance Program enables free software upgrades to existing applications, if the upgrade requires no more than 12 hours of Omega staff hours to fully implement. All Upgrades that require more than 12 hours of Omega staff hours are subject to cost considerations. All upgrades where Omega staff hours are performed at the client site are subject to cost considerations. 7. The Maintenance Program enables free software upgrades to applications in development, and is subject to Limitation 6 above. Client acknowledges that software upgrades may require additional service time to implement, and may impact the installation, training. and project completion dates. 8. The Maintenance Program includes toll free technical support, minor software upgrades. and discounted major version upgrades for one (I) year. The Omega Group plans to perform minor version upgrades approximately once a year. These upgrades will both enhance the usability of the software as well as add additional functionality, especially in the area of analysis tasks. 9. Enhancements to Omega software may be patches that can be downloaded from our website, or may require The Omega Group to send updated software versions via the mail. Notifications of updates are communicated to the client either by telephone or E- Mail. 10. In the event of serious data loss at the client site, The Omega Group will assist as resources permit, but will not be responsible for rebuilding the application and data files. The Omega Group may have copies of the client's application files stored at our offices and acquired during the application building and testing, however this data is limited to the extractions or samples received during the application development and quickly becomes out-of-date. If services are needed, The Omega Group may provide services at an additional charge for time. materials, and travel. Support Hours Technical support phone hours are during the days of Monday through Friday. Support is not available during the weekend. All calls should be directed to (800) 228-1059 or email requests to S upport(w,theOmegaQTOllo.com. Pacific Standard Time 7:00 AM 5:30 PM Mountain Standard Time 8:00 AM 6:30 PM Central Standard Time 9:00 AM 7:30 PM It is Omega's intent to respond to all technical support requests within first hour of request during normal business hours. Omega will make every effort to resolve issues at the time of the call from the client. Pending on the scope and the nature of the technical issue. resolution may take time.