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HomeMy WebLinkAboutC. E. DEAN ENTERPRISES, INC.-2017ilvaURANCE ON FILE WORK MAY PROCEED UNTIL INSURANCE EXPIRES N-2017-160 LERK OF COUNCIL INDEPENDENT CONTRACTOR SERVICES AGREEMENT DATE: �XE 11 21111 THIS AGREEMENT is made and entered into this 3rd day of August 2017, by and between C.E. W Dean Enterprises, Inc., a Texas corporation, doing business as LD Systems, duly organized and existing under and by virtue of the laws of the State of Texas, authorized to conduct business in the state of California ("CONTRACTOR") having its principal place of business at 4200 International Parkway, Carrollton, Texas, 75007, 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. LD Systems provides custom outdoor through the wall enclosed payment kiosk with currency bill acceptors, currency and coin dispensers, prepaid card recharge, and ability to access CITY accounts including Municipal Utility Services, parking citations, dog licenses, business licenses and related goods and services collectively determined by the CITY and CONTRACTOR; and the CITY desires to retain a CONTRACTOR having special skill and knowledge in the field of refurbishment, monitoring, and maintenance of such systems. B. CONTRACTOR is specially trained, experienced and competent to perform such payment kiosk services and has agreed to provide the services that are the subject of this Agreement independent of any other contractual obligation to the CITY. C. In undertaking the performance of this Agreement, CONTRACTOR represents that it is knowledgeable in its field and that any services performed by CONTRACTOR under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional independent contracting firm in the field. 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: 1.1 The CONTRACTOR shall furnish to the CITY upon execution of this Agreement or receipt of the CITY'S written authorization to proceed, those services and work set forth in Exhibit "A", attached hereto and, by this reference, made a part hereof. 1.2 Any documents, drawings, photographs and/or written work product pertaining thereto, prepared or produced by the CONTRACTOR under this Agreement and related to the physical, mechanical, or electronic status of the kiosk, shall be made available for inspection by the CITY upon written request but shall otherwise remain the property of the CONTRACTOR. 1.3 Services and work provided by the CONTRACTOR at the CITY'S request under this Agreement will be performed in a timely manner consistent with the requirements and standards established by applicable federal, state and CITY laws, ordinances, regulations and resolutions, specifically including the Payment Card Industry Data Security Standards (PCI - DSS), and in accordance with a schedule of work set forth in Exhibit "A". The hours and times for the performance of said services and work are to be set by the CONTRACTOR; provided, however, that such schedule is subject to the requirements of the CITY as set forth in Exhibit „A„ 2. COMPENSATION 2.1 CITY agrees to pay, and CONTRACTOR agrees to accept as total payment for its services, the rates and charges identified in Exhibit "A". The total sum to be expended under this Agreement shall not exceed $25,000.00 during the term of this Agreement (inclusive of additional approved services/ expenses/costs). 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. 2.2 Except as expressly provided in Exhibit "A" of this Agreement, CONTRACTOR shall not be entitled to nor receive from CITY any additional consideration, compensation, salary, wages, or other type of remuneration for services rendered under this Agreement. Specifically, CONTRACTOR shall not be entitled by virtue of this Agreement to consideration in the form of overtime, health insurance benefits, retirement benefits, disability retirement benefits, sick leave, vacation time, paid holidays or other paid leaves of absence of any type or kind whatsoever. 2.3 CITY will not withhold any Federal or State income taxes or Social Security tax from any payments made by CITY to CONTRACTOR under the terms and conditions of this Agreement. Payment of all taxes and other assessments on such sums is the sole responsibility of CONTRACTOR. CITY has no responsibility or liability for payment of CONTRACTOR'S taxes or assessments. 2.4 Pursuant to Penal Code section 484b and to Business and Professions Code section 7108.5, the CONTRACTOR must apply all funds and progress payments received by the CONTRACTOR from the CITY for payment of services, labor, materials or equipment to pay for such services, labor, materials or equipment. Pursuant to California Civil Code section 1479, the CONTRACTOR shall direct or otherwise manifest the CONTRACTOR'S intention and desire that payments made by the CONTRACTOR to subcontractors, suppliers and materialmen shall be applied to retire and extinguish the debts or obligations resulting from the performance of this Agreement. 3. TERM This Agreement shall commence on the date first written above and shall expire December 31, 2017. This Agreement shall terminate automatically on the occurrence of (a) bankruptcy or insolvency of either party, (b) sale of CONTRACTOR'S business, (c) cancellation of insurance required under the terms of this Agreement, and (d) if, for any reason, CONTRACTOR ceases to be licensed or otherwise authorized to do business in the State of California (as applicable), and the CONTRACTOR fails to remedy such defect or defects within (30) days of the receipt of notice of such defect or defects, unless terminated earlier in accordance with Section 29, below. 4. REQUIRED LICENSES, CERTIFICATES AND PERMITS (a) Any licenses, certificates or permits required by the federal, state, county or municipal governments for CONTRACTOR to provide the services and work described in Exhibit "A" shall be procured by CONTRACTOR, or as applicable, by CONTRACTOR'S agents, subcontractors, materialmen, or other independent contractors and be valid at the time CONTRACTOR enters into this Agreement. Further, VA during the term of this agreement, CONTRACTOR shall maintain such licenses, certificates and permits in full force and effect. Licenses, certificates and permits may include but are not limited to driver's licenses, professional licenses or certificates and business licenses. CONTRACTOR 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. Except as provided in subsection (c) hereunder such licenses, certificates and permits will be procured and maintained in force by CONTRACTOR at no expense to the CITY. (b) CONTRACTOR warrants and represents that it possesses (and will continue to possess throughout the term of this Agreement) all individual and corporate licenses required to provide the products and/or services provided, products sold and/or licensed and forms utilized pursuant to this Agreement are (and will remain throughout the term of this Agreement) in compliance with all federal and state laws and regulations. (c) CITY agrees that in the event one or more municipal licenses or permits is required for the performance of CONTRACTOR'S services, all such licenses or permits will be acquired and paid for by CITY or waived as may be applicable. 5. OFFICE SPACE, SUPPLIES, EQUIPMENT, ETC. Unless otherwise provided in Exhibit "A", CONTRACTOR shall provide such office space, supplies, equipment, vehicles, reference materials and telephone service as is necessary for CONTRACTOR to provide the services identified in Exhibit "A" to this Agreement. CITY is not obligated to reimburse or pay CONTRACTOR for any expense or cost incurred by CONTRACTOR in procuring or maintaining such items. Responsibility for the costs and expenses incurred by CONTRACTOR in providing and maintaining such items is the sole responsibility and obligation of CONTRACTOR. 6. INSURANCE Prior to undertaking performance of work under this Agreement, CONTRACTOR shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: (a) General Liabilitv. Comprehensive general liability insurance covering bodily injury, personal injury, property damage, products and completed operations with limits of no less than One Million Dollars ($1,000,000.00) per incident or occurrence. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to any act or omission by CONTRACTOR under this Agreement or the general aggregate limit shall be twice the required occurrence limit. (b) Automobile Liability Insurance. If the CONTRACTOR or the CONTRACTOR'S officers, employees, agents, representatives or subcontractors utilize a motor vehicle in performing any of the work or services under this Agreement, owned/non-owned automobile liability insurance providing combined single limits covering bodily injury, property damage and transportation related pollution liability with limits of no less than One Million Dollars ($1,000,000.00) per incident or occurrence. .i7 (c) Workers' Compensation Insurance. Workers' Compensation insurance as required by the California Labor Code. In signing this contract, the CONTRACTOR certifies under section 1861 of the Labor Code that the CONTRACTOR is aware of the provisions of section 3700 of the Labor Code which requires every employer to be insured against liability for workmen's compensation or to undertake self-insurance in accordance with the provisions of that code, and that the CONTRACTOR will comply with such provisions before commencing the performance of the work of this Agreement. (d) Any deductibles, self-insured retentions or named insureds must be declared in writing and approved by the CITY. At the option of the CITY, either: (a) the insurer shall reduce or eliminate such deductibles, self-insured retentions or named insureds, or (b) the CONTRACTOR shall provide a bond, cash, letter of credit, guaranty or other security satisfactory to the CITY guaranteeing payment of the self-insured retention or deductible and payment of any and all costs, losses, related investigations, claim administration and defense expenses. (e) The CONTRACTOR shall obtain a specific additional insured endorsement naming the City of Santa Ana as a Certificate Holder to all required insurance policies, except Workers' Compensation insurance and Professional Liability insurance, in substantially the form attached hereto as Exhibit "B" upon execution of this Agreement, naming the CITY and its officers, officials and employees as additional insureds regarding: (a) liability arising from or in connection with the performance or omission to perform any term or condition of this Agreement by or on behalf of the CONTRACTOR, including the insured's general supervision of its subcontractors; (b) services, products and completed operations of the CONTRACTOR; (c) premises owned, occupied or used by the CONTRACTOR; and (d) automobiles owned, leased, hired or borrowed by the CONTRACTOR. For Workers' Compensation insurance carrier shall agree to waive all rights of subrogations against the CITY and its officers, officials and employees for losses arising from the performance of or the omission to perform any term or condition of the Agreement by the CONTRACTOR. (f) The CONTRACTOR'S insurance coverage shall be primary insurance regarding the CITY and CITY'S officers, officials and employees. Any insurance or self-insurance maintained by the CITY or CITY'S officers, officials and employees shall be excess of the CONTRACTOR'S insurance and shall not contribute with CONTRACTOR'S insurance. (g) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the CITY or its officers, officials, employees or volunteers. (h) The CONTRACTOR'S insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (i) Each insurance policy required by this section shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party except after thirty (30) days' prior written notice has been given to CITY. The contractor shall promptly notify, or cause the insurance carrier to promptly notify, the CITY of any change in the insurance policy or policies required under this Agreement, including, without limitation, any reduction in coverage or in limits of the required policy or policies. (j) CONTRACTOR shall require that all of its subcontractors are subject to the insurance and indemnity requirements stated herein, or shall include all subcontractors as additional insureds under its insurance policies. (k) Prior to the date the CONTRACTOR begins performance of its obligations under this Agreement, CONTRACTOR shall furnish CITY with certificates of insurance, and with original endorsements, showing coverage required by this Agreement, including, without limitation, those that verify coverage for subcontractors of the CONTRACTOR. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements shall be received and, in CITY's sole and absolute discretion, approved by the CITY. CITY reserves the right to require complete copies of all required insurance policies and endorsements, at anytime. (1) The limits of insurance described herein shall not limit the liability of the CONTRACTOR and CONTRACTOR'S officers, employees, agents, representative or subcontractors. 7. DEFENSE AND INDEMNIFICATION To the fullest extent permitted by law, CONTRACTOR shall indemnify, hold harmless and defend the CITY and its agents, officers and employees from and against all claims, damages, losses, judgments, liabilities, expenses and other costs, including litigation costs and attorneys' fees, arising out of, resulting from, or in connection with the performance of this Agreement by the CONTRACTOR or CONTRACTOR'S officers, employees, agents, representatives or subcontractors and resulting in or attributable to personal injury, death, or damage or destruction to tangible or intangible property, including the loss of use; provided, however, such indemnification shall not extend to or cover loss, damage or expense arising from the negligence or willful misconduct of the CITY or its agents, officers and employees. (a) CONTRACTOR'S obligation to defend, indemnify and hold the CITY and its agents, officers and employees harmless under the provisions of this section is not limited to or restricted by any requirement in this Agreement for CONTRACTOR to procure and maintain a policy of insurance. (b) If CONTRACTOR 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 affect CONTRACTOR'S right to be paid for its time and materials expended prior to notification of termination. CONTRACTOR waives the right to receive compensation and agrees to indemnify the CITY for any work performed prior to approval of insurance by the CITY. 8. STATUS OF CONTRACTOR AS INDEPENDENT CONTRACTOR 8.1 All acts of CONTRACTOR and its officers, employees, agents, representatives, subcontractors and all others acting on behalf of CONTRACTOR relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers or employees of CITY. CONTRACTOR, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of CITY. Except as expressly provided in Exhibit "A", CONTRACTOR has no authority or responsibility to exercise any rights or power vested in the 5 CITY. No agent, officer or employee of the CITY is to be considered an employee of CONTRACTOR. It is understood by both CONTRACTOR and CITY that this Agreement shall not be construed or considered under any circumstances to create an employer-employee relationship or a joint venture. 8.2 At all times during the term of this Agreement, the CONTRACTOR and its officers, employees, agents, representatives or subcontractors are, and shall represent and conduct themselves as, independent contractors and not employees of the CITY. 8.3 CONTRACTOR shall determine the method, details and means of performing the work and services to be provided by CONTRACTOR under this Agreement. CONTRACTOR shall be responsible to CITY only for the requirements and results specified in the Agreement and, except as expressly provided in this Agreement, shall not be subject to CITY'S control with respect to the physical action or activities of CONTRACTOR in fulfillment of this Agreement. CONTRACTOR has control over the manner and means of performing the services tinder this Agreement. CONTRACTOR is permitted to provide services to others during the same period service is provided to CITY under this Agreement. If necessary, CONTRACTOR has the responsibility for employing other persons or firms to assist CONTRACTOR in fulfilling the terms and obligations under this Agreement. 8.4 If in the performance of this Agreement any third persons are employed by CONTRACTOR, such persons shall be entirely and exclusively under the direction, supervision and control of CONTRACTOR. All terms of employment including hours, wages, working conditions, discipline, hiring and discharging or any other term of employment or requirements of law shall be determined by the CONTRACTOR. 8.5 It is understood and agreed that as an independent contractor and not an employee of the CITY, the CONTRACTOR and the CONTRACTOR'S officers, employees, agents, representatives or subcontractors do not have any entitlement as a CITY employee, and do not have the right to act on behalf of the CITY in any capacity whatsoever as an agent, or to bind the CITY to any obligation whatsoever. 8.6 It is further understood and agreed that CONTRACTOR must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of CONTRACTOR'S assigned employees under the terms and conditions of this Agreement. 9. RECORDS CONTRACTOR shall keep records and invoices in connection with the work to be performed under this Agreement. CONTRACTOR shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the CITY for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONTRACTOR under this Agreement. All such records and invoices shall be clearly identifiable. CONTRACTOR shall allow a representative of the CITY to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. CONTRACTOR shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to CONTRACTOR under this Agreement. 10. CONFIDENTIALITY If CONTRACTOR receives from the CI information is reasonably understood to be agrees that it shall not use or disclose such Agreement, and further agrees to exercise the information of like importance, but in no ev Information" shall include all nonpublic inform written information, but also information trans means. Confidential information disclosed to subcontractor or independent contractor of the foregoing obligations of non-use and nondiscl has been disclosed in publicly available source disclosed in a publicly available source: (c) i TY information which due to the nature of such confidential and/or proprietary, CONTRACTOR information except in the performance of this same degree of care it uses to protect its own ent less than reasonable care. "Confidential ation. Confidential information includes not only ferred orally, visually, electronically, or by other either party by any subsidiary and/or agent, other party is covered by this Agreement. The osure shall not apply to any information that (a) s; (b) is, through no fault of the CONTRACTOR s in rinhtful nngHARSinn of +hc rnr iTDorrnD without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the CONTRACTOR without reference to information disclosed by the CITY. 11. NONDISCRIMINATION During the performance of this Agreement, CONTRACTOR and its officers, employees, agents, representatives or subcontractors shall not unlawfully discriminate in violation of any federal , state or local law, rule or regulation against any employee, applicant for employment or person receiving services under this Agreement because of race, religion, color, national origin, ancestry, physical or mental disability, medical condition (including genetic characteristics) , marital status, age, political affiliation, sex, or sexual orientation. CONTRACTOR and its officers, employees, agents, representatives or subcontractors shall comply with all applicable Federal, State and local laws and regulations related to policy, the Fair Employment and Housing Act (Government Code sections 12900 et seq.); California Labor Code sections 1101, 1102 and 1102.1; the Federal Civil Rights Act of 1964 (P.L. 88-352), as amended; and all applicable regulations promulgated in the California Code of Regulations or the Code of Federal Regulations. 12. ASSIGNMENT (a) This is an agreement for the services of CONTRACTOR. CITY has relied upon the skills, knowledge, experience and training of CONTRACTOR and the CONTRACTOR'S firm, associates and employees' knowledge, experience and training of CONTRACTOR and the CONTRACTOR'S firm, associates and employees as an inducement to enter into this Agreement. CONTRACTOR shall not assign or subcontract any portion of this Agreement except as set forth hereunder in accordance with subsection (b) or as set forth in accordance with Exhibit "A" of this Agreement without the prior written consent of CITY. Further, CONTRACTOR shall not assign any monies due or to become due under this Agreement without amendment hereto or prior written consent of CITY. (b) CITY acknowledges CONTRACTOR may use subcontractors to provide installation, repair, refurbishment, fire engineering, maintenance, inspections, software support, on-site or remote application hosting, monitoring, or certification services. (c) In the event of CONTRACTOR'S failure to render timely performance under this Agreement, 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 CONTRACTORs retained by CITY. 13. WAIVER OF DEFAULT Waiver of any default by either party to this Agreement shall not be deemed to be waiver of any subsequent default. Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach, and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided below. 14. 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 fax or other telegraphic communication 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: Executive Director - Finance & Management Services Agency (FMSA) City of Santa Ana 20 Civic Center Plaza (M-17) P.O. Box 1988 Santa Ana, California 92701 Fax: 714-647-5414 Treasury & Customer Services Manager (FMSA) City of Santa Ana 20 Civic Center Plaza (M-15) P.O. Box 1964 Santa Ana, California 92701 Fax: 714-647-5456 City Attorney - City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax: 714-647-6515 H To CONTRACTOR: Cliff Dean, CEO LD Systems 4200 International Parkway Carrollton, TX 75007 Fax: (800) 900-4564 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 fax, 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. 15. COORDINATION OF WORK Contract Officer The Contract Officer shall be the person designated hereunder by CITY. It shall be the CONSULTANT'S responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the CONSULTANT shall refer any decisions which must be made by CITY to the Contract Officer. Unless otherwise specified herein, any approval of CITY required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the CITY required hereunder to carry out the terms of this Agreement. City of Santa Ana Willard V. Holt Contract Officer Treasury and Customer Services Manager 16. ADDITIONAL SERVICES Extra Work CITY shall have the invalidating this Agreement, or make changes by altering, Change Order right at any time during the performance of the services, without to order extra work beyond that specified in the Scope of Services adding to or deducting from said work. No extra work may be undertaken unless a written "Change Order" is first given by the Contract Officer to the CONSULTANT, incorporating therein any material adjustment in the contract and/or the time to perform this Agreement, which said adjustments are subject to the written approval of the CONSULTANT. 17. PERFORMANCE OF SERVICES - COOPERATION & ASSISTANCE CITY agrees that its employees will cooperate with and assist representatives of CONSULTANT in every reasonable way to enable CONSULTANT to secure all information and data required to perform the services herein provided for. CONSULTANT shall have no liability for defects in the services attributable to CONSULTANT's reliance upon or use of data, design criteria, drawings, specifications, or other information furnished by CITY or third parties retained by CITY. 18. CONFLICT OF INTEREST CLAUSE CONTRACTOR 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. 19. PUBLIC RELEASE AND STATEMENTS Neither party or its representatives or agents shall disseminate any oral or written advertisement, endorsement or other marketing material relating to each other's activities under this Agreement without the prior written approval of the other party. Neither party shall make any public release or statement concerning the subject matter of this Agreement without the express written consent and approval of the other party. No party or its agent will use the name, mark or logo of the other party in any advertisement or printed solicitation without first having prior written approval of the other party. The parties shall take reasonable efforts to ensure that its subcontractors shall not disseminate any oral or written advertisement, endorsement or other marketing materials referencing or relating to the other party without that party's prior written approval. In addition, the parties agree that their contracts with all subcontractors will include appropriate provisions to ensure compliance with the restrictions of this Section. 20, ADVICE OF ATTORNEY Each party warrants and represents that in executing this Agreement, it has received independent legal advice from its attorneys or the opportunity to seek such advice. 21. EQUAL OPPORTUNITY TO DRAFT The parties have participated and had an equal opportunity to participate in the drafting of this Agreement. No ambiguity shall be construed against any party upon a claim that that party drafted the ambiguous language. 22. CONSTRUCTION Headings or captions to the provisions of this Agreement are solely for the convenience of the parties, and are not part of this Agreement, and shall not be used to interpret or determine the validity of this Agreement. Any ambiguity in this Agreement shall not be construed against the drafter, but rather the terms and provisions hereof shall be given a reasonable interpretation as if both parties had in fact drafted this Agreement. 23. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. In the event of any conflict between the provisions of this Agreement and those set forth in any Exhibit referenced and incorporated herein, the provisions of this Agreement shall prevail. 10 24. INTEGRATION; AMENDMENT It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 25. SEVERABILITY If any portion of this Agreement or application thereof to any person or circumstance shall be declared invalid by a court of competent jurisdiction or if it is found in contravention of any federal, state or county or city statute, ordinance or regulation the remaining provisions of this Agreement or the application thereof shall not be invalidated thereby and shall remain in full force and effect to the extent that the provisions of this Agreement are severable. 26. ENTIRE AGREEMENT This Agreement supersedes any and all other agreements, either oral or in writing, between any of the parties herein with respect to the subject matter hereof and contains all the agreements between the parties with respect to such matter. Each party acknowledges that no representations, inducements, promises or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. 27. GOVERNING LAW AND VENUE This Agreement shall be deemed to be made under, and shall be governed by and construed in accordance with, the laws of the State of California. Any action brought to enforce the terms or provisions of this Agreement shall be brought in the County of Orange, State of California. 28. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the CITY and CONTRACTOR, 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 CONTRACTOR. The parties agree that any terms or conditions of any requisition, purchase order, or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, except as may be referenced in accordance with Exhibit "A", shall not bind or obligate CONTRACTOR or 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 29. TERMINATION This Agreement may be terminated by the CITY upon thirty (30) days written notice of termination. In such event, CONTRACTOR shall be entitled to receive and the CITY shall pay CONTRACTOR compensation for all services performed by CONTRACTOR prior to receipt of such notice of termination, subject to the following conditions: (a) As a condition of such payment, the Executive Director may require CONTRACTOR to deliver to the CITY all work products completed as of such date, and in such case such work product shall be the property of the CITY unless prohibited by law, and CONTRACTOR consents to the CITY'S use thereof for 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. 30. JURISDICTION - 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. 31. 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 of the terms 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. (c) In the event of any conflict between the provisions set forth in any Exhibit referenced and incorporated herein, the provisions of the CONTRACTOR Agreement shall prevail. 32. EXECUTION This Agreement must be signed below and may be signed in counterpart and delivered by fax, emailed as a PDF (Portable Document Format) file attachment, or by other means that displays the original or a copy of the signatures. Any subsequent amendments may be signed and delivered in the same manner. {Signatures on following page} 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: • .� ., _ .. UIZAR I Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By:-__.u� Lisa Starck Assistant City Attorney RECOMMENDED FOR APPROVAL: 44� d' l7 )Lk- A - �' Francisco Gu ierrez Executive Director Finance R Management Services Agency 13 CITY OF SANTA ANA CYNTHIA J._ I Interim City anager CONTRACTOR C.E. Dean Enterprises, Inc., dba LD Systems Clio6an, CEO Tax ID# 75-2556260 EXHIBIT A SCOPE OF SERVICES (a) CONTRACTOR shall provide all necessary parts, (except for those parts previously obtained by CITY to be provided to CONTRACTOR as noted hereunder in subsection (b)), along with all installation, all testing, and all certification services required to fully refurbish CITY'S installed Payment Kiosk (originally provided to CITY by Consultant pursuant to Agreement (A-2012-141)) to full warrantable operational condition for a maximum warranty term not to exceed forty-six (46) months. CONTRACTOR shall then certify the warrantable condition of said Payment Kiosk to KIOSK Information Systems and shall provide a copy of said certification to CITY. (b) Pursuant to CITY of Santa Ana Purchasing Requisition No. 31745, CITY purchased from CONTRACTOR - 1 Fujitsu F56 Cash Dispenser including added shutter assembly for the amount of $6,360, which purchase CITY and CONTRACTOR agree is subject to a separate purchase order, and which has been separately invoiced by CONTRACTOR to CITY and has/shall be separately paid by CITY to CONTRACTOR. (c) Scheduled compensation amounts for CONTRACTOR'S Services under this agreement exclusive of additional services or extra work subsequently pursuant to an approved Change Order shall be as follows: Billable Onsite Labor for installation of Fujitsu F56 Cash Dispenser including added shutter assembly 2 hours @ $198 per hour Billable Onsite Labor for examination and testing of Payment Kiosk 2 hours @ $198 per hour iii. Billable Onsite Labor for warranty certification of Payment Kiosk 3 hours @ $198 per hour (d) Unscheduled compensation amounts for CONTRACTOR'S Services shall be as follows: Additional parts replacement by CONTRACTOR required to refurbish CITY Payment Kiosk to 46 month warrantable condition shall be reimbursed at part(s) manufacturer's suggested retail price based on most recent pricing list/guide. In addition thereto, appearance items including but not limited to City Seal Decal/Applique and keyboard/keyboard key assembly shall be reimbursed on a similar or like basis. ii. Additional onsite labor for removal, replacement, installation and testing shall be at the rate of $198 per hour. 14 (e) The parties agree that CONTRACTOR may, at CONTRACTOR'S discretion, elect to install "improved parts" with specifications, performance capabilities, or rated component life, greater than original equipment manufacturer's requirements. (f) The parties agree that "time is of the essence" in the completion of CONTRACTOR'S services to CITY. Except for additional work (approved services/expenses/costs) as may be agreed to by the parties pursuant to a valid Change Order, the date for the completion of all said CONTRACTOR services shall be on or before September 1, 2017. Failure to complete said services by this date shall be deemed a material breach of this agreement. (g) Except as may be agreed to by the parties through written amendment of this agreement total CONTRACTOR compensation shall not exceed $25,000 and the term of this agreement shall conclude December 31, 2017. 15 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY & AUTOMOTIVE LIABILITY POLICIES Insurance Company This endorsement modifies such insurance as is afforded by the provisions of: Policy # Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Policy # _ Issued to this endorsement form as a part of Named Insured Countersigned by Authorized Representative 16 ACIICERTIFICATE OF LIABILITY INSURANCE r DATE(MMIDD/YVYV) 7/19/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. 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). PRODUCER Frederiksen & Frederiksen, A Corp. Insurance & Risk Mgmt Services 12900 Preston Road, suite 500 Dallas TX 75230 CONTACT NAME: Melinda Carel! PNONE (972)387-8646 FAX AIC. No). (972)991-930'! _ App IL melinda@fredandfred. com INSURERS AFFORDING COVERAGE NAICk INSURER A:Phoenix Insurance Company 25623 INSURED CE Dean Enterprises,Inc. LD Systems 2221 Justin RdSte 119 Flower Mound TX 75028 INSURERB:Trayelers Indemnity Company_ 25658 INSURER C:Charter Oak Fire Insurance Co. 25615 INSURER D: INSURER E: INSURER F: nry=Q C;ERTiFiCAIt INUIVI[9tk:"il/ A/UZ/B4 REVISION NUMBER• THIS IS TO CERTIFY THAT 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 CONTRACT OR 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. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. (NSR LTR TYPE OF INSURANCE ADDLSUBR POLICY NUMBER POLICY EFF I00/YYYY POLICY EXP M/DD/YVVV LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE FXIOCCUR 680-0661W261-17-42 2/25/2017 2/25/2018 DAMAGE TO RENTED PREMISES Ea occurrence $ 300,000 MED EXP (Anyone person) $ 5,000 PERSONAL &ADV INJURY $ 11000,000 GENERAL AGGREGATE $ 2,000,000 GENT AGGREGATE X POLICY LIMIT APPLIES PER 7 PRO- RO LOC PDT PRODUCTS - COMP/OP AGG $ 2,000,000 $ LIABILITY !MBI EDtSINGLE LIMIT1 O00 000 BODILY INJURY(Per person) $ AANY POMOSILE AUTO ALL OWNED SCHEDULED AUTOS AUTOS 680-0661W261-17-42 2/25/2017 2/25/2018 gODILV INJURY Per accident $ ( )HIRED AUTOSX NON -OWNED AUTOS PROPERTY DAMAGE Per accident $ X UMBRELLA LIAR X OCCUR EACH OCCURRENCE $ 2,000,000 $ EXCESS UPS CLAIMS -MADE UP -7564Y575-17-42 2/25/2017 2/25/2018 AGGREGATE $ 2,000,000 DED X RETENTION$ 10,000 $ C WORKERS COMPENSATION ANDEMPLOVERS'LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in Ni If yes, describe under N/A IOU85937L148 /25/2017 2/25/2018 WC STATU- OTH- X E.L. EACH ACCIDE NT $ 500 000 E.L. DISEASE -EA EMPLOYE $ 500,000 EL,DISEASE - POLICY LIMIT I $ 500,000 DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD lot, Additional Remarks Schedule, If more space is required) /4 ('� LS '1/ / rev ee�dA�y SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Santa Ana ACCORDANCE WITH THE POLICY PROVISIONS. 20 Civic Center Plaza, M15 Santa Ana, CA 92701 AUTHORIZED REPRESENTATIVE (Mark Frederiksen/MRC ACORD 25 (2010/05) ©1988.2010 ACORD CORPORATION_ All rine+a rucnrvuH Ini (201005),01 The ACORD name and logo are registered marks of ACORD