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HomeMy WebLinkAboutCARD METERING SYSTEMS, INC.City of Santa Ana C 2010 MCI% Clerk of the Council - AGREEMENT TERMINATION Please complete this form when the attached agreement is no longer in effect. Return form to the Clerk of the Council Office (M -30). N— T s Call 647 -2520 if you have any questions. The agreement with / LI No. N- 2009 -083 was completed on C, and final payment has been made. Department: T Phone /Ext.: Signature: Date- Revised 05 -04 -08 INSURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES ~~-i -iC~ CLERK OF COUNCIL DATE: ~UL 2 1 2009 SOFTWARE LICENSE AND SERVICE AGREEMENT ~` ~ ~ ~~'~~ ~~) THIS AGREEMENT is entered into on April 28, 2009, by and between Card Metering ~~ ~~~ 1~ ~^ Systems, Inc., an Arizona corporation ("CMS") and the City of Santa Ana, a charter city and w~c ~~~lY1C ~- municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS: A. The parties entered into that certain Agreement N-2005-001, dated January 7, 2005, (hereinafter "said Agreement") by which Consultant has provided copier and micrographic printer service with debit card technology at various Santa Ana Library locations. B. The City desires to upgrade the CMS printing software, in order to implement all the services available through the software. 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 Software to be provided CMS will provide City with its Diginet Printing System software for five (5) kiosks, two (2) Diginet servers and sixty-one (61 }Printing Clients currently located in Santa Ana Library locations. Additionally, CMS will provide licensing and unlimited technical support for the software. New software modules developed by CMS will be made available at 25% below retail. Warranties CMS will warrant all equipment and software provided by CMS for the term of this agreement for all equipment, products and software provided as part of this agreement as either the manufacturer, Dealer, servicing agent or distributor or all products provided. [n the event there is a defect, malfunction or failure, CMS will repair, replace or remedy any malfunctioning equipment and software products provided by CMS as part of this agreement. CMS warranty does not cover damage caused by abuse, misuse, mishandling, misapplication and computer viruses. Hours of Service CMS will provide regular maintenance as requested, Monday through Friday 8AM to SPM (MST). N-2009-083 These hours may be adjusted as deemed appropriate by CMS and approved by the City and/or as mutually requested by the City and agreed upon in writing by both parties, dependent upon volume, workload and other requirements. CMS provides its employees the following holidays, during which service will not be provided: • Christmas Day • Thanksgiving Day • Independence Day • New Years Day • Memorial Day • Labor Day • Martin Luther King Jr. Day • President's Day • Easter • Veterans Day • Columbus Day Weekend and after-hour services CMS phone and email support are provided at no charge Monday-Friday 8AM-SPM MST with all other time and support functions billed at $150.00 per hour. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services an annual software license fee of $2,739.40, plus applicable taxes. The total sum to be expended under this Agreement shall not exceed $3,000.00 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. TERM This Agreement shall commence on installation of the software and continue for aone- year period, unless terminated earlier in accordance with Section 12, below. Within thirty (30) days after installation of the software, CMS shall notify the City, in writing, of the commencement date of this Agreement. The term of this Agreement may be extended upon a writing executed by the Executive Director of Parks, Recreation and Community Services and the City Attorney. INSURANCE Prior to undertaking performance of work under this Agreement, CMS shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. CMS shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of CMS' operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. ASSIGNMENT CMS agrees not to assign or transfer any of its obligations under this agreement without the prior written consent of the City, whose consent shall not be unreasonably withheld. 6. ADDTITIONAL SERVICES CMS will deliver an install/provide the equipment and software. City will provide adequate space, electrical, computer and network requirements. City will be billed monthly for any overage or service charges. CMS will submit invoice(s) to City for the license fee and applicable taxes, annually in advance of services being provided. City will pay invoices in compliance with Paragraph 2 of said Agreement. It is CMS intent that all fees and charges are included except for items as they relate to taxes, filing fees and other State, Federal and local charges. In the event the City places service demands on CMS outside of the proposed solution, such as causing service issues by changing operating systems, print drivers, network configurations, computer hardware, failures due to viruses and any other such items, CMS will invoice, and the City agrees to pay CMS at the rate of $150.00 per hour for calls created in this manner. VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the 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. // // // // // IN WITNESS WHEREOF, the parties hereto have executed this Software License and Service Agreement on the date and year first written above. ATTEST: ~-~ ' PATRICIA E. HEALY Clerk of the Council CITY OF SANTA ANA DAVID N. REA City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney ~, By: ~~~ ~~ ~ ~ ~ -~~~: , Laura Sheedy Assistant City Attorney ,l RECOMMENDED FOR APPROVAL: v~ GERARDO MOUET Executive Director CA1tD (Title) SYST>tM, [NC. h~~ ,acoRV~ CERTIFICATE OF LIABILITY INSURANCE DA 09 1 O7 O PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATIO DeBenedetti S Co, .PC ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Insurance Division HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXi'ENp OR 1609 N Wilmot Rd #105C ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW Tucson AZ 85712 Phone: 520-320-1332 Fax:520-547-2475 INSURERS AFFORDING COVERAGE NAIC # INSURED INSURER,4 CNA InSUlranCe 02186 C d M INSURER B: a r eter $yStems, InC. RBA: IN C C MS SUR£R : 4729 E. Sunrise Dr. #458 INSURER D: Tucson AZ 85718 INSURER E GpVtKAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR NSR TYPE OF INSURANCE POLICY NUMBER DAFE M1DD PRATE MM~D ~ LM1T3 GENERAL LUIBIUTY EACH OCCURRENCE $ 1, OOO, OOO A X X COMMERCIAL GENERALLIABILffY 4017419604 05/01/09 05/01/10 PREMISES Eaoaurence $300,000 CLAIMS MADE X^ OCCUR MED EXP (Any one person) $ 1 O OQO PERSONALS ADV INJURY $ 1 OOO OOO GENERAL AGGREGATE r r $ 2 OOO OOO GEN'LAGGREGATE LIMIT APPDES PER: PRODUCTS - COMPJOP AGG , , $ 2 , O00 OOO POLICY jE~T LOC AU TOMOBILE LIABILITY A X X ANY AUTO 4017419618 05/Oi/09 05~01~10 C.OMBINEDSINGLELIMIT (Ea aaident} S1 OO r O r 004 ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) HIRED Al1TOS BODILY INJURY $ NON-0WNED AUTOS (Per acdden$ PROP TY D ER AMAGE $ (Per accidenq OARAGELIABIUTY AUTO ONLY-EAAOCIDENi $ ANIY AUTO OTHER THAN ~ ACC $ AUTO ONLY: AGG $ EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR ~ CLAIMS MADE AGGREGATE $ S DEDUCTIBLE $ RETENTION S $ WORKERS COMPENSATION AND EMPLOYERS' LU18{UTY X TORY LIMBS ER p' ANY PROPRIETORJPARTNERIEXECUTNE 4017419950 05/01/09 05~O1~10 E.L. EACH ACCIDENT $1,000,000 OFFICERJMEMBER EXCLUDED? if yes describe ender E.L. DISEASE-EA EMPLOYE S1 OOO OOO r r , SPECIAL PRONSIONS below E.L DISEASE -POLICY LIMIT $ 1 OOO OOO OTHER , , DESCRIPTION OF OPERATIONS 1 LOCATIONS f VEHICLES J EXCLUSIONS ADDED BY ENDORSEMENT! SPECIAL PROVISIONS The certificate holder, City of Santa Ana, it's officers, employees, agents, & representatives are named as additional insureds in regards to the general liability and auto liability as respects to the ongoing operations of the insured provided for the certificate holder. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATIO DATE THEREOF, THE ISSUNG INSURER WILL IL 3O DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT LL City of Santa Ana Purchasing Division ~~~i,,,~(((-~ 6R~ ~/ ~ ~ j ,~~ 11 I ,11MP~L"~I(~q'~GATION OR U F ANY KIND UPON THE INBURER, ITS AGENTS OR 20 Civic Center Plal REPRESENTATIVES. ~., Santa Ana, CA 92701 /~';/ ~ AUTHORIZED REPRESENTA ,~.~:. ~ , , =~ ; r orney r"~,. IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the poiicy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). D[SCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. c~va SB-146932-B (Ed. 03106) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY, NON-CONTRACTORS BLANKET ADDITIONAL ENSURED This endorsement modifies insurance provided under the following: BUSINESSOWNERS LIABILITY COVERAGE FORM Coverage afforded under this extension of coverage endorsement does not apply to any person or organization covered as an additional insured on any other endorsement now or hereafter attached to this Coverage Part. 1. ADDI710NAL INSURED -BLANKET VENDORS WHO lS AN INSURED is amended to include as an additional insured any person or organization {referred fa below as vendor) with whom you agreed, because of a written contract or agreement to provide insurance, but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business, subject to the following additional exclusions: 1. The insurance afforded the vendor does not apply to: a. "Bodily injury" or "property damage" for which the vendor Is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; b. Any express warranty unauthorized by you; c. Any physical or chemical change in the product made intentionally by the vendor, d. Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instrudaons from the manufacturer, and then repackaged in the original container; e. Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; f. demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; g. Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor, or h. "Bodily injury" or "property damage" arising out of the sole negligence of the .vendor for its own acts or omission or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (1) The exceptions contained in Subparagraphs d. or f.; ar (2) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. 2. This insurance does not apply to any insured person or organize#ion, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. 3. This provision 2. does not apply to any vendor included as an insured by an endorsement issued by us and made a part of this Coverage Part. 4. This provision 2. does not apply if "bodily injury" or "property damage" included within the "products-completed operations hazard" is excluded either by the provisions of the Coverage Part or by endorsement. 2. MISCELLANEOUS ADDITIONAL INSUREDS WHO ES AN INSURED is amended to include as an insured any person or organization {called additional insured) described in paragraphs 3.a. through 3.h. below whom you are required to add as an additional insured on this policy under a written contract or agreement bu# the written contract or agreement must be: 1. Currently in effect ar becoming effecfive during the term of this policy; and 2. Executed prior to the "bodily injury," "property damage" or "personal and advertising injury," but Only the following persons or organizations are additional insureds under this endorsement and 5B-146932-B Page 1 of 3 (Ed. 03106) (Version 1.0) SB-146932-8 (Ed. 03106) coverage provided to such additional insureds is entrances, coal holes, driveways, limited as provided herein: manholes, marquees, hoistaway a. Additional insured -Your Work openings, sidewalk vaults, street banners, or decorations and That person or organization for whom you similar exposures; or do work is an additional insured solely for (b) The construction, erection, or liability due to your negligence specifically removal of elevators; or resulting from your work for the additional insured which is the subject of the written {2) This insurance applies only with contract or written agreement. No respect to operations performed by coverage applies to liability resulting from you or on your behalf for which the the sole negligence of the additional state or political subdivision has insured. issued a permit. The insurance provided to the additional This insurance does not apply to "bodily insured is limited as follows: injury," "property damage" or "personal {1) The Limits of Insurance applicable to and advertising injury" arising out of operations performed for the state or the additional insured are those municipality. specified in the written contract or written agreement or in the c. Controlling Interest Declarations of this policy, whichever is less. These Limits of Insurance are Any persons or organiza#ions with a inclusive of, and not in addition to, controlling interest in you but only with the Limits of insurance shown in the respect to their liability arising out of: Dedara#ions. {1) Their financial control of you; or (2) The coverage provided to the {2) Premises they own; maintain or additional insured by this control while you lease or occupy endorsement and paragraph F.9. of these premises. the definition of "insured contract" under Liability and Medical This insurance does not apply to Expenses Definitions do not apply structural alterations, new construction to "bodily injury" or "property and demolition operations performed by damage" arising out of the "products- or for such additiona! insured. cnmpleted operations hazard" unless d. Managers or Lessors of Premises required by the written contract or N written agreement. A manager or lessor of premises but only with respect to liability arising out of the w (3) The insurance rovided to the P ownership, maintenance ar use of that additional insured does not apply to " speafic part of the premises leased to § bodily injury," "property damage," or you and subject #o the following additional "personal and advertising injury" exclusions: ~ arising out of the reridering or failure to render any professional services. This insurance does not apply to: b. State or Political Subdivisions (1) Any "occurrence" which takes place after you cease to be a tenant in that A state or political subdivision subject to premises; or ~ the following provisions: _ ~ ~ (1} This insurance a lies on with pp IY (2) Structural alterations, -new construction ar demolition operatinns = "- respect to the following hazards for performed by or on behalf of such which the state or political additional insured. ~ subdivision has issued a permit in connection with premises you own, e. Mortgagee, Assignee or Receiver rent, or control and to which this A mortgagee, assignee nr receiver but insurance applies: only with respect to their liability as -_ {a) The existence, maintenance, mortgagee, assignee, or receiver and - repair, construction, erection, or arising out of the ownership, removal of advertising signs, maintenance, or use of a premises by awnings, canopies, cellar you. SS-14fi932-B Page 2 of 3 (Ed. 03106) SB-14&932-B (Ed. 03106) This insurance does not apply to structural alterations, new construction or demolition operations performed by or for such additional insured. f. Owners/Other Interests - Land is Leased An owner or other interest from whom land has been leased by you but only with respect to liability arising out of the ownership, maintenance or use of that specific part of the land leased to you and subject to the following additional exclusions: This insurance does not apply to (1) Any "occurrence" which takes place after you cease to lease that land; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such additional insured. g. Co-owner of Insured Premises A co-owner of a premises co-owned by you and covered under this insurance but only with respect to the co-owners liability as co-owner of such premises. h. Lessor of Equipment Any person or organization from whom you lease equipment. Such person or organization are insureds only with respect to their liability arising out of the maintenance, operation or use by you of equipment leased to you by such person or organization. A person's or organization's status as an insured under this endorsement ends when their written contract or agreement with you for such leased equipment ends. With respect to the insurance afforded these additional insureds, the following additional exclusions apply: This insurance does not apply: (1) To any "occurrence" which takes place after the equipment lease expires; or {2) To "bodily injury," "property damage" or "personal and advertising injury" arising out of the sole negligence of such additional insured. Any insurance provided to an additional insured designated under paragraphs a. through h. above does not apply to "bodily injury" or "property damage" included within the "products-completed operations hazard." 3. The following is added to Paragraph H. of the BUSINESSOWNERS COMMON POLICY CONDITIONS: H. Other Insurance 4. This insurance is excess over any other insurance naming the additional insured as an insured whether primary, excess, contingent or on any other basis unless a written contract or written agreement specifically requires that this insurance be either primary or primary and noncontributing. SB-146932-B (Ed. 03106) Page 3 of 3