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HomeMy WebLinkAbout25G - AGMT - SOFTWARE APP FOR PDA • CITY COUNCIL MEETING DATE: JANUARY 7, 2014 TITLE: AGREEMENT WITH GEOSPATIAL TECHNOLOGIES, INC. TO PROVIDE MAINTENANCE FOR THE POLICE DEPARTMENT'S AUTOMATIC VEHICLE LOCATOR SYSTEM CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 15' Reading ❑ Ordinance on 2"' Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a one -year agreement with GeoSpatial Technologies, Inc. for software application maintenance and customer support in an amount not to exceed $20,898, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION On December 16, 2008, Council approved the agreement with GeoSpatial Technologies (GST) to purchase the Automatic Vehicle Locator (AVL) system and provide software maintenance and support. This system enables the Santa Ana Police Department the ability to track police vehicles using mapping software throughout the City of Santa Ana. This system is an important safety and efficiency tool, as it allows dispatchers to know the location of patrol vehicles and dispatch officers in an efficient manner, thus reducing response times and increasing officer safety. GST provides bug -fixes and upgrades to the AVL software when they are available at no additional charge during the term of the maintenance program. In the event that the Police Department experiences a critical system failure, which shall be deemed to have occurred if the system is down or inoperable, GST shall respond and look into correcting the problem immediately upon receipt of a call for service. For all other non - critical failures, GST will respond and attempt to correct the problem within four hours upon receipt of a call for service. The Police Department is satisfied with the AVL system and GeoSpatial Technologies' support services, and is proposing a new one -year software service and maintenance agreement in an amount not to exceed $20,898. The Automatic Vehicle Locator system is proprietary and owned by GeoSpatial Technologies and can only be serviced by this company. This agreement may be terminated by the City upon thirty -days written notice of termination. 25G -1 Agreement with GeoSpatial Technologies January 7, 2014 Page 2 FISCAL IMPACT Funds for this agreement are available in Police Department's Information Services contract services account (no. 01114425 62300). Carlos Rojas Acting Chief of Police Police Department APPROVED AS TO FUNDS AND ACCOUNT: e Francisco Gutierrez Executive Director Finance and Mgmt. Services Agency 25G -2 SOFTWARE MAINTENANCE AND SITE LICENSE AGREEMENT THIS AGREEMENT, made and entered into this 7th day of January, 2014 by and between GeoSpatial Technologies, Inc., a California Corporation, (hereinafter "GST "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "), RECITALS A. The City desires to retain GST to maintain and license automated vehicle locator ( "AVL") tracking software and mobile mapping services. GST represents that it is able and willing to provide these services. B. GST represents that it is the owner of GST automated vehicle locator tracking and mobile mapping software and as such, it is the only company able to mountain the software and provide site licensing for the City's use of the software. C. In undertaking the performance of this Agreement, GST represents that it is knowledgeable in its field and that any services performed by GST under this Agreement wilt be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. D. City has used AVL tracking and mobile mapping software since approximately 2008 and during that time it has been maintained and licensed by GST. The parties intended to enter into a new agreement as of December 16, 2013, and conducted themselves pursuant to their continued agreement to provide for and pay for services associated with the maintenance and use of 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: 1. SCOPE OF SERVICES GST shall perform those services as set forth in terms and conditions set, forth in the attached Exhibit "A" to this Agreement and incorporated herein by reference. 2. COMPENSATION City agrees to pay, and Contractor agrees to accept as total payment for its services, the rates and charges identified in the quote attached hereto as Exhibit "B" and incorporated herein by reference. The total sum to be expended under this Agreement shall be $20,898. 3. TERM This Agreement shall commence on the date first written above and terminate on December 15, 2014, unless terminated earlier in accordance with Section 12, below. As noted above, to provide a continuity of service, this agreement is intended to cover services provided since December 14, 2013 in compliance with the parties' intent to renew the software maintenance and licensing agreement. 25G -3 4. INDEPENDENT CONTRACTOR GST 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, ajoint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which GST performs the services wh ch are the subject matter of this Agreement; however, the services to be provided by GST shall be provided in a manner consistent with all applicable standards and regulations governing such services. GST 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 Prior to undertaking performance of work under tlus Agreement, GST shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. GST 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 GST's 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, $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self - insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non - owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, GST, if GST 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, GST agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If GST is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. 25G -4 e. The following requirements apply to the insurance to be provided by GST pursuant to this section: (i) GST shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City, f. If GST fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect GST's right to be paid for its time and materials expended prior to notification of termination. GST waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION GST agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, GSTs, special counsel, and representatives from liability: (1) for personal injury; damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury; including death, and claims for property damage, which may arise from the direct or indirect operations of the GST or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The GST further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terns of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 7. CONFIDENTIALITY If GST' receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, GST 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 the GST disclosed in a publicly available source; (e) is in rightful possession of the GST without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the GST without reference to information disclosed by the City. 25G -5 S. CONFLICT OF INTEREST CLAUSE GST 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 commmunication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M -30) P.O. Box 1988 Santa Ana, CA 92702 -1988 Fax 714- 647 -6956 With courtesy copies to: and To GST: Chief of Police Santa Ana Police Department 20 Civic Center Plaza (M -96) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 245 -8007 City Attorney City of Santa Ana 20 Civic Center Plaza (M -29) P.O. Box 1988 Santa Ana, California 92702 Fax 714- 647 -6515 Mr. Hong Chou GeoSpatial Technologies Inc. 10055 Slater Avenue, Suite 214 Fountain Valley, Califon a 92708 Fax(714)861 -7032 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 25G -6 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 puiposes 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 between the City and GST, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of GST. 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 GST nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11, ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of GST, GST may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the 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 GSTs retained by City. 12. TERMINATION This Agreement. may be terminated by the City upon thirty (30) days written notice of termination. In such event, GST shall be entitled to receive and the City shall pay GST compensation for all services performed by GST prior to receipt of such notice of termination, subject to the condition that payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 13. DISCRIMINATION GST 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. GST affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. VENUE The 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 GST shall, throughout the tern of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by 25G -7 the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. GST shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 15. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herembelow has the power, authority and right to bind their respective parties to each of the teens 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 if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Hy: LAURA A. ROSSINI , Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: Carlos Rojas Acting Chief of Police CITY OF SANTA ANA DAVID CAVAZOS City Manager GEOSPATIAL TECHNOLOGIES, INC. Hong Chi President 25G -8 EXHIBIT A —Terms and Conditions 25G -9 ('GST GeoSpatial Technologies, Inc. Software Annual Maintenance Agreement GeoSpatial Technologies, Inc. (hereinafter referred to as GST) shall provide maintenance and support services under this Software Annual Maintenance Agreement (hereinafter referred to as Agreement) for City of Santa Ana Police Department (hereinafter referred to as Customer) during the period from December 16. 2013 to December 15, 2014, with options to extend for addition Gkyears, upon payment of the annual maintenance fee for the products listed in the section of Products Covered"- I. PRODUCTS COVERED GST maintenance and support services are provided only for the software products listed in either Purchase Contract, Purchase Order, GST Quote, or GST Invoice with the entire amount of Software Annual Maintenance Fee paid in full on or before the commencement of each 12 -month period. II. MAINTENANCE AND SUPPORT GST shall provide maintenance and support services to the End User. Maintenance and support services shall include, but not limited to: (a) Telephone and E -mail Support: GST will provide telephone and e -mail assistance. You must provide GST with remote access through the Internet to the computers installed with GST software. By calling the GST techmeal support number, you will reach a trained support analyst of whom you may ask questions or seek advice relating to the use of GST software. The analyst will assist you in utilizing your GST software, and in identifying and providing a work around, if possible, for any software problems found with GST software. GST support services do not include hardware, network, operating systems, or third party software. Support will be provided weekdays from 9:00 a.m. to 6:00 p.m. Pacific Standard Time, excluding weekends and holidays. (b) Response Times: In the event that the End User experiences a critical system failure, which shall be deemed to have occurred if the system is down or inoperable, meaning that the End User cannot use the System and/or the System is off -line, for longer than yz hour, GST shall respond and look into correcting the problem immediately upon receipt of a call for service and following the receipt of notification and relevant documentation of the problem. For all other non - critical failures, GST shall respond and attempt to correct the problem within four (4) hours upon receipt of a call for service and following the receipt of notification and relevant doctmmentation of the problem. If problems cannot be resolved within four (4) hours, the problem will be automatically escalated to Application Technical Lead or the VP of Product Management for resolution. After consultation between the VP of Product Management and support staff, GST will provide a plan of action for resolution to the End User. (c) Bug -fixes and Upgrades: GST will provide bug -fixes aid upgrades to the GST software when they are available at no additional charge during the term of the maintenance program. 25G -10 ('GST (d) Corrective Maintenance: GST will provide corrections to the supported software using Internet connections, provided you have a high -speed Internet connection on your system allowing GST remote access, during standard support hours. (e) GST Training: The End User under software annual maintenance program receives 50% discounts for all training programs held at GST's facility, (f) Software Customization and Enhancement: The End User under the software annual maintenance program receives a 20% discount for any software customization services. End User requested enhancements or modifications of GST software are not included in the support plan price. GST agrees to review requests from the End User and to provide a quote for the requested enhancement based on time and cost anticipated. (g) Excluded Service: The maintenance and support described herein does not include the correction of software failures due to causes beyond the control of GST and occurring without the fault or negligence of GST such as, but not limited to acts of God, catastrophe, fault, or negligence of the End User, operator error, manipulation of the object or source code (unless approved by GST In writing prior to such manipulation), improper use or misuse of the system or any part thereof. Any such excluded service, whether on -site or off -site, will be provided at the request of the End User at GST per call rates and terms then in effect. (h) Support of Old Software: Users are required to install all updated software and any bug fixes in a timely manner, including operating system software. If you fail to keep your system current, GST may no longer support your system. GST will support old releases of a product for two years after new releases become available. For subsequent years after new releases becomes available, if requested by End User, GST may continue to support such old releases for an annual increase in support fee of 40 %. (i) Lapsed Support: If the End User intends to renew maintenance after the previous maintenance program has expired for over two (2) months, a supplemental fee of 50% of the annual maintenance shall be due GST for the first year of maintenance following your need for maintenance again, in addition to the maintenance fee already due herein. (k) On -site support: On -site support is not covered by the standard software maintenance support. Per End User's request, GST will provide on -site support if GST determines that such support is required to resolve the reported problem. In this case, GST will dispatch one or more members of its support staff to your site who will attempt to recreate and resolve the problem(s) reported. During this time it is expected that members of your staff will be available to answer questions and provide information regarding your system, if required. On -site support will be charged at GST per call rates and terms then in effect, plus travel and per diem for GST staff sent on -site. III. SYSTEM MODIFICATION (a) GST - generated modifications: Changes or replacement of the computer equipment, operating system and its related software, or other third party software may require GST software support and/or 25G -11 ('GST software modification to allow GST products to work with the new equipment, operating system, and/or third party software. These support and /or modification services will be provided by GST at the End User's request at our then quoted prices. (b) End User - generated modifications: GST will not be responsible for any damage to your GST software or data caused by upgrades to the operating system or replacement of hardware without GST's prior written concurrence that said upgrade would function properly. Services required as a result of modifications to EST's systems made by the End User are not considered normal maintenance and are not provided as part of GST's Software Maintenance Program. (c) External System Modifications: In the event any external system is modified beyond that anticipated by the terms of the underlying End User License Agreement, the End User shall notify GST of such changes immediately upon receipt of notification from the respective entity /entities and request that GST prepare a proposal to include a time and cost estimate, for the work to be performed which constitutes a change from the originally agreed upon configuration and work description as presented in the underlying End User License Agreement. GST shall, within thirty (30) days after receiving said notice, furnish a written proposal to the End User provided the required modifications are cons nercially, technically and practically feasible. Upon receipt of GST's proposal, the End User shall determine whether it desires the work to be performed, and if so shall issue a Notice to Proceed within ten (10) days, at which time GST will perform the necessary modifications for the additional mutually agreed upon compensation. IV. END USER RESPONSIBILITIES (a) Software Problems and Reporting: The End User agrees to limit use of GST maintenance service to occasions when GST system software fails to operate in accordance with the product specifications as defined in the original purchase contract. To facilitate the problem solving process, the End User agrees to assist GST in their efforts to duplicate the software problem by providing a written problem report. Additionally, GST may ask that you furnish a listing of software problems rather than calling on each individual item over a short period of time so that our support team can better assist you. (b) Pavtnent: The End User is responsible for ensuring that all amounts payable under the software annual maintenance program are received by GST on or before the commencement of the maintenance program. The End User's failure to remit payment to GST for such maintenance services provided or to be provided shall entitle GST to deny further maintenance services to the End User. (c) 'Updates: The End User and all users of GST software are responsible for installing all updates to software, hardware, and fixes in a timely manner. Failure to keep your system updated can, at GST's sole discretion, result in the immediate discontinuation of maintenance support. (d) System Administration: The End User is responsible for identifying a System Administrator, as well as a back -up System Administrator, who will function as GST's primary and secondary contact for any maintenance services to be provided under the software maintenance program. Such System Administrator, or, in the absence of the Systems Administrator, the back up, shall be GST's sole contact for technical assistance. The System Administrator and backup System Administrator must 25G -12 ('GST be trained in the administration of computer hardware, operating system, networking, and database. GST support staff will assist you in identifying system problems as a function of maintenance support. However, if a problem is identified as a system administration responsibility, further assistance from GST support staff is billed at our then current hourly rates and terms. V. WARRANTIES (a) Limited Warranty for Services Any services being provided to the End User in accordance with the software maintenance program are offered on a best - efforts basis only, GST may not be able to resolve every service request made. Although GST will attempt to provide some guidance and direction, GST is not responsible for resolving issues related to networks, operating systems, back - end databases or hardware. It is the End User's responsibility to keep adequate data backups. GST will not be responsible for any lost data. . ALL OTHER WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, ARE HEREBY EXCLUDED. VI. LIMITATION OF LIABILITY The End User's sole and exclusive remedies for any damage or loss in any way connected with any software or services furnished by GST, after acceptance of the GST software system, whether by DST's breach of warranty, negligence, or any other breach of any other duty, shall be, at GST option, replacement of the software or re- performance of service or return or credit of an appropriate portion of any payments made, or to be made, to GST with respect to such software or services. Under no circumstances shall GST be liable to you or any other person for any special, incidental, indirect or consequential damages of any character, including, without limitation, damages for loss of good will, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if GST has been advised of the possibility of such potential loss or damage. VILCHOICE OF LAW Interpretation of this Agreement shall be governed by the laws of the State of California. VIII. STATUTE OF LIMITATIONS No action or claim relating to or arising out of the software annual maintenance program may be instituted more than one (1) year after the event giving rise to such action or claim. 25G -13 EXHIBIT B -Quote 25G -14 Exhibit R 10055 Slater Ave., Suite 214 Fountain Valley, CA 92708 S IPhone: (714) 861.7033 Fax: (714) 861-7032 GeoSliatietl'fechnologies, Inc. Quote for Santa Ana Police Department 11/22/2013 GST Public Safety System GST Part Number Description QTY Unit Price Amount AMF covering 1211612013-12/1512014 Agreement A- 2008.332 dated 12116/2008 Service SV -SW -AMF Software Annual Maintenance Fee for City of Santa Ana Police Department on the following Software Licenses 1 $ 20,898.00 $ 20,898.00 1. GST Tracker Server Software License 2. GST Viewer Software Site License 3. GST Mapper MDC Software Site License 4. GST InterOp Bridge Software License 5. GST Wireless Host Server Software License (up to 200 vehicles) Annual Maintenance Fee Total $ 20,898.00 Grand Total ( AMF and Service) I I $ 20,898.00 Notes: 1 AMF paid client Is entitled to technical support through email and telephone (M -F, 9:OOAM- 5:30PM, PST), bug fixes and free software upgrades through the year, and discounts for GST's training programs and customization. 2 Price stated above is good for ninety (90) days from the date of this quotation. 3 Payment Terms: AMF payment is due prior to the commencement date of each 12 -month period, 25G -15 25G -16