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HomeMy WebLinkAbout25A - AGMT - FUEL MAINTENANCEREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JANUARY 15, 2019 TITLE: APPROVE AN AGREEMENT WITH GILBARCO INC. FOR GASBOY FUEL MANAGEMENT MAINTENANCE AND REPAIR SERVICES (STRATEGIC PLAN NO. 6,2) i CITY MA AGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1n Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a five-year agreement with Gilbarco Inc. to provide maintenance and repair services for City's Gasboy fuel management system for the period of December 18, 2018 through December 31, 2023 for a total amount not to exceed $38,170, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION Since 2007, the City's Fleet Services Division (Fleet Services) has operated a fuel management system to provide tracking and billing service for all unleaded and diesel fuel dispensing at both the Corporate Yard and Police Administration Building. The system allows Fleet Services to track fuel dispensing by individual vehicle number along with updating vehicle mileage by vehicle. The information received is utilized by Fleet Services to schedule necessary preventive maintenance work on each vehicle. In 2007, the City entered into a contract with Orpak for the initial purchase and annual maintenance and repair costs associated with this system. Recently, Orpak USA Inc. was purchased by Gilbarco, Inc., the parent company of Gasboy, and subsequently, a new maintenance and repair agreement is being requested. The fuel management system is propriety in nature, and the maintenance and repair requires specific expertise to ensure it stays operational throughout the day. Specifically, the agreement (Exhibit 1) offers the following coverage: telephone and remote support services, software corrections and upgrades, fleet office software support, onsite maintenance and repair service, and parts support. STRATEGIC PLAN ALIGNMENT Approval of this item assists the City's effort to meet Goal #6 Community Facilities & Infrastructure, Objective #2, (address deferred maintenance on City buildings and equipment). 25A-1 Agreement for Fuel Management System Services January 15, 2019 Page 2 FISCAL IMPACT Funds for this agreement are available in the Central Stores contractual account (no 07610102 62300) for the following years: FY 2018/19 - $8,374.95 FY 2019/20 - $6,968.00 FY 2020/21 - $7,264.14 FY 2021/22 - $7,591.03 FY 2022/23 - $5,000.00 FY 2023/24 - $2,970.58 Total - $38,168.70 APPROVED AS TO FUNDS AND ACCOUNTS: Kathryn Downs, CPA 90 Executive Director Finance and Management Services Agency CL/sv Exhibit: 1. Agreement 25A-2 EXHIBIT 1 AGREEMENT TO PROVIDE MAINTENANCE AND REPAIR SERVICES THIS AGREEMENT is made and entered into on this 18°i day of December, 2018 by and between GILBARCO INC., a Delaware corporation, doing business under the GasboyTM brand and located at 7300 West Friendly Avenue, Greensboro, NC 27410 ("Consultant" or "Gasboy"), 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 ("City" or "Customer"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of providing maintenance and repair services to the City's fuel management system B. Consultant represents that Consultant is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting 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. SCOPE OF SERVICES Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Exhibit A and C, attached hereto and incorporated by reference, and pursuant to these terms and the Additional Terms and Conditions set forth in Exhibit D, attached hereto and incorporated by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit B. The total amount to be expended under this Agreement shall not exceed $38, IX b. Payment by City shall be made within 30 days (thirty) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Subject to the terms and conditions herewith, 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. 25A-3 3. TERM This,Agreement shall commence on -December 18,--2018-and cover services which commenced on November 1, 2018 and the Agreement will continue until December 31, 2023, unless terminated earlier in accordance with Section 16, below. 4. PREVAILING WAGES Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is 51,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 5. INDEPENDENT CONTRACTOR Consultant 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 norshall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standardsand regulations governing such services. Consultant 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. 6. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 25A-4 7. INSURANCE I Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City; its officers, employees, agents, volunteers and representatives as additional insured(s) and 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 Consultant'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, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, 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, 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. d. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: i Consultant 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 by the City. E 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. iv. Where the amounts or coverage provided by the certificates of insurance provides coverage greater than those listed by this Agreement, theamounts provided by the certificates of insurance shall be incorporated by reference into the Agreement. V. Consultant shall supply City with a fully executed additional insured endorsement. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to famish the City with required proof that insurance has 25A-5 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 Consultant's right to bepaid for its time and materials expended prior to notification of termination. Consultant 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. INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitablerelief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its 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 Consultant 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 terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant 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 Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created 25A-6 pursuant to this Agreement during regular business hours. Consultant shall allow inspection ofall work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date, of final payment to Consultant under this Agreement. 11. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant 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 toany information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant 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 underthis Agreement. 13. NON-DISCRIMINATION Consultant 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. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. EXCLUSIVITY AND AMENDMENT This Agreement and its attachments represent the complete and exclusive statement between the City and Consultant, 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, theterms ofthis Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument (not attached to this Agreement) that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, 25A-7 have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant 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 consultants retained by City. 16. TERMINATION In the event of a breach of the terms or conditions of this Agreement, City shall provide a written notice to Consultant to cure such breach. If Consultant does not cure said breach within fifteen (15) days of the date of the written notice, the City may exercise its option to terminate this Agreement. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant 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 Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant 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. 17. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 18. 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. 25A-8 19. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain alljnecessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant 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. ' 20. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below 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. 21. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to thisAgreement 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, CA2702-1988 Fax: 714- 647-6956 With courtesy copies to: Executive Director, Finance and Management Services Agency City of Santa Ana 20 Civic Center Plaza (M-27) P.O. Box 1988 Santa Ana, California 92702 25A-9 To Consultant: GILBARCO INC 7300 West Friendly Avenue, Greensboro, NC 27410 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. 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 By: . ,'%�✓ Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: Kathryn Downs, CPA Executive Director, Finance and Management Services Agency CITY OF SANTA ANA Raul Godinez II City Manager CONSULTANT: By: _ Name: Title 25A-10 EXHIBIT A SCOPE OF SERVICES 'SCHEDULE A._DESCRIPTIDN OFSERVICES ICUSTOMER OBLIGATIONS During the Term of the Agreement, Gasboy will provide to the applicable services from the following list (the'Services") to Customer for the Gasboy or Orpak-branded products ('Products') that Customer owns, based on the customers selected contract type: 1. Telephone support for Product questions will be provided Monday through Friday 8AM to 6PM ET. All other times not stated are considered emergency after hour's support only including but not limited to weekends and holidays. Gasboy's toll-free service number is (currently 800-444-5529). This toll-free number can be changed atGasboy'sdiscretion. Gasboy will try to resolve any issue remotely and independently or will guide the Customer over the phone with possible ways to bring up the system to a fully functioning mode. 2. Software corrections and upgrades to the Products that Customer requires on an was needed' basis. 3. Fleet head office software service for support of Customer head office location only. If Customer has additional locations requiring such service, Customer will need to enter into individual service support agreements for such locations. 4. Onsite support for site equipment Products (station controllers, mobile fuel truck controllers, wireless gateway terminals, extension boxes, nozzle readers) and/or vehicle equipment Products (vehicle identification rings/tags, DataPass units) as required to restore covered equipment to full operations. Should phone support fail, an authorized technician will be dispatched to the Customer site. 5. Parts support for site equipment Products (station controllers, mobile fuel truck controllers, wireless gateway terminals, extension boxes, nozzle readers) and/or vehicle equipment Products (vehicle identification rings/tags, DataPass units) as required to restore covered equipment to full operations. SERVICE DESCRIPTION CONTRACT TYPE B Telephone & Remote Support X Software Corrections and Upgrades X Fleet Head Office Software Support X Onsite Repair Services — Site Equipment X Parts Support— Site Equipment X Onsite Repair Services — Vehicle Equipment Parts Support— Vehicle Equipment SERVICES AT NON -CONTRACT LOCATIONS If Customer requests Services for a location not covered by this Agreement, Gasboy will provide telephone support 25A-11 for a fee of One Hundred Dollars and No Cents (US $100.00), payable immediately by credit card before Gasboy will provide the Services. This fee is good for one call, one problem only. If Customer calls with more than one issue at a non -covered location, Gasboy will charge an additional fee for each issue. DISCONTINUANCE OF SERVICES If Customer elects to discontinue the Services at any time due, any reinstatement of the Services will require a new agreement and a payment of the then -current annual fee. In addition, Gasboy will charge a reinstatement fee of one hundred ten percent (110%) of the current annual fee prorated by the number of months (to a maximum of twenty- four (24) months) during which the Services were discontinued. SCHEEIM A-1. SERVICE LEVEL AGREEMENTS (S1 -A'S) Repairs for Damaged Equipment Gasboy's monthly charges, as shown in Schedule B, do not cover services with respect to damage to the equipment resulting from vehicle accidents, vandalism, acts of God (hurricanes, tomados, earthquakes, or other major natural disasters), negligence or misuse (otherthan by Gasboy, its employees or agents which will be Gasboy's responsibility), except as otherwise specifically stated in this agreement. Where Customer requests that Gasboy repair such damage, Gasboy will provide Customer with an estimate of the costs and if such cost estimate is acceptable invoice Customer for such repairs using Gasboy's standard time and material rates. Obsolete Equipment Obsolete equipment, as used in this agreement, is defined as any equipment other than equipmentinstalled by Gilbarco as part of the Fuel Management System in which the original manufacturer has terminated support (parts, drawings, engineering support, or training is no longer available). In the event Customer desires to include obsolete equipment under this agreement, Gasboy will use commercially reasonable efforts to meet the desired response and repair times. If obsolete equipment cannot be replaced with equipment of the same make and model, Gasboy will first consult with .Customer about. upgrading the obsolete. equipment with similar equipment If the upgrade is approved, Customer and Gasboy shall mutually agree upon the cost of such upgrade and Customer agrees to cover the agreed upon costs incurred because of equipment upgrades. Authorized Service Contractors Gasboy will have the sole discretion to select all Authorized Service Contractors (ASC's) for service work. It shall be the responsibility of Gasboy to adopt and enforce sound and accepted safety and health practices in performing the maintenance services and repairs ('Services') and to ensure that it and any ASC's comply with Customer's or the site's safety and related policies and procedures. Gasboy and ASC's shall comply with all safety and health policies or practices of Customer while on Customer's or any Customer related property. It Customer has a service provider, they wish to use; Customer will notify Gasboy in writing of their desire to utilize the selected ASC. Gasboy will consider the request and will honor said request if there is no adverse impact on the quality and delivery of the fixed maintenance program to FedEx Ground. Definition of Dispatch Request A dispatch request is defined as a telephone request made by a person or persons as designated to provide site repair and maintenance at an identified Customer location for equipment. Such dispatch request will include a unique identifier assigned (incident number) by Gasboy's Help Desk as well as a date/time stamp indicating the request is opened. The dispatch request will also include identification of the site, and a description of the problem(s) to be resolved. Emergency Dispatch Request GasboyASC's are available to be on site (2417/365). Response time to site is dependent on the response time assigned 25A-12 to the dispatch. Response time definition and assignment descriptions are listed below. Acceptance Inspection Gasboy undertakes the service described herein relying on Customers representation that the equipment was properly installed and maintained In accordance to the manufacturers published documents for installation and operation. Gasboy shall inspect equipment during the first service request after the equipment Is placed on the maintenance agreement. It Gasboy determines that any equipment is not operating within the manufacturer's installation specifications or has a potential pre-existing problem, Gasboy will first consult with Customer about upgrading the obsolete equipment with similar equipment. If the upgrade is approved, Customer and Gasboy shall mutually agree upon the cost of such upgrade and Customer agrees to cover the agreed upon costs incurred because of equipment upgrades. Customer will have the option to: • Replace the pad/unit • Authorize Gasboy to repair the equipment at the quoted or stated price • Utilize a third party to make any corrections • Exclude the equipment from the service agreement Database Reconciliation Gasboy and Customer will work together to ensure accurate equipment and site information is available to load into the Gasboy data base system. Service Levels: Dispatch requests shall be assigned a service level for response and repair time based upon the assignment descriptions listed below. Response Times: 4E 4 hour" emergency response, clock never stops, 24/71365 24S 24-hour response, clock never stops, 24/7/365 48S 48-hour routine response during normal business hours, clock stops on weekends and holidays Repair Times: 4E 8 -hour repair, clock never stops, 24/71365 24S 24-hour repair, Monday — Friday 48S 48-hour routine response during normal business hours, clock stops on weekends and holidays Issue Service Request Res onseTime Repair Time One (1) or more fueling positions down but still able to fuel 24S 24 Hour 48 Hour Complete System Down 4E 4 Hour 8 Hour Two Day Response: An ASC is to be on site within 48 hours during normal business hours: • Anything not covered by 4E or 24S. 25A-13 Response time: • 48 hours' response. • Monday - Friday, excludes Saturdays, Sundays, and holidays. Repair Times • With respect to all 4E dispatch requests, the goal is to correct the problem within 12 hours of the dispatch request 80% of the time • With Respect to all 24S Dispatch Requests, the objective is to correct the problem within 48 hours of the Dispatch Request 80% of the time. • With Respect to all Two -Day Dispatch Requests, the objective is to correct the problem within 72 hours of the Dispatch Request 80% of the time. 25A-14 EXHIBIT B COMPENSATION Fee Proposal including hourly rates if applicable Gasboy is pleased to offer the following pricing structure for the Services:' This Service and Maintenance Agreement will cover FuelOmat Fuel Management system at the two locations listed above. Starting Date: November 1, 2018 End Date: December 31, 2019 Price: The Costs for the initial term above for Service and Maintenance Agreement is $8,374.95 or $558.33 per month. Fees are paid annually. Due to price increases for cost of operation, labor, services, and parts; additional years 2-5 will be priced at the following. Year 2 will increase by 4% to $6968 Year 3 will increase by 4.25% to $7264.14 Year 4 will increase by 4.5% to $7591.03 Year 5 will increase by 5% to 7970.58 Payment: Annual payment due on starting date. Organization Type (Corporation, LLC, Political Division): Pay by Check or Credit Card: PO (Purchase Order) Number. Please attach a copy of P0. Primary Account Contact Name' System Maintenance/Support Contact Name* Accounts Payable Contact Name John Aguilar Primary Account Contact EmaII6 System Maintenance/Support Contact Email* Accounts Payable Contact Email' JAGUILAR@SANTA-ANA.ORG Primary Account Contact Phone System Maintenance/Support Contact Phone• Accounts Payable Contact Phone 714-847-5008 Company Taxpayer Identification Number' Company State Taxpayer Identification Number' 95.6000785 'If tax exempt, please attach a copy of an exemption certificate, or a state issued tax exemption letter. 25A-15 EXHIBIT C LOCATIONS • City of Santa Ana Corporate Yard 215 S Center Street, Santa Ana, CA 92703 • City of Santa Ana Police Department #60 Civic Center Plaza, Santa Ana, CA 92701 25A-16 EXHIBIT D ADDITIONAL TERMS AND CONDITIONS i 1. Fees for the Services are paid annually in advance. All lees are required before Gasboy will provide any Services. Total fees for the Services are set forth in Exhibit B attached hereto and incorporated herein by reference. Gasboy shall have the right to update the fees each year, and will provide notice to Customer of any fee changes at least sixty (60) days before the end of the then -current term. All fees hereunder are due thirty (30) days from the date of invoice. Customer is responsible for all taxes on the Services. If any invoice is more than thirty (30) days past due, Gasboy may, at its option, discontinue the Services until the account is made current, or terminate the Agreement and seek all fees and costs due under the Agreement. Gasboy reserves the right to pro -rate annual fees for Customer locations such that all Customer locations have a common renewal date. 2. Provided that all fees are paid in a timely manner, the Services shall be provided at the locations listed on Exhibit C. Any modifications to locations on Exhibit C due to changes to Customers business (such as site closing, relocation of Products), must be provided to Gasboy in writing. 3. If Customer fails to pay any Fees or associated Taxes by the due date, without limiting any other rights or remedies Gasboy may have, then such late Fees and Taxes will accrue a late lee interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is lower, and/or Gasboy may require future Fees and Taxes to be paid on shorter terms. If Customer is more than 30 days past due, Gasboy may, at is option, discontinue the Services until the account is made current or, terminale the Agreement for cause and seek full recovery for any outstanding fees and costs due under the Agreement. Customer shall be responsible for any collection costs, including but not limited to reasonable attorneys' lees, that Gasboy incurs in the collection of any amounts due hereunder. 4. If Customer (i) breaches this Agreement and such breach is not cured within ten (10) days, or (it) is the subject o1 any bankruptcy, insolvency, or similar proceeding, Gasboy may immediately terminate the Agreement and all fees shall become immediately due and payable. 5. Customer shall indemnify, defend, and hold harmless Gasboy, including its affiliates, agents, and employees from and against any and all losses, claims, demands, liabilities, fines, penalties, assessments, suits, or actions for injuries to or death of any person, or for loss o1, or damage to. the property of any person or persons caused by or resulting from the negligent acts or omissions (including liability imposed by statutes, rules, or regulations) of Customer, or its subcontractors,vendors, agents, officers, or employees. Customer's obligations under this section shall not apply to the extent that such claims are caused solely by the willful misconduct of Gasboy. If Customer is a government agency or political division, then this Section shall apply only to the extent permitted by applicable law. 6. Except as otherwise specifically provided herein, neither party shall be liable for any failure to perform or for any delay in performing any of its obligations hereunder caused by circumstances beyond its reasonable control or which makes performance commercially impracticable, including, but not limited to, fire, storm, good, earthquake, hurricane, tornado, explosion, accident, acts of public enemies, war, rebellion, insurrections, sabotage, epidemic, quarantine restrictions, labor disputes, labor shortages, transportation embargoes or delays, inability to secure raw materials or machinery for the manufacture of products, acts of God, ads of any government, any agency thereof, judicial actions or any other such external circumstances. 7. Al times, Customer and Gasboy may receive from the other party certain information marked confidential and proprietary. Both parties agree to treat such information as confidential, using the same degree of care as it uses to protect its own confidential information, but no less than reasonable care. The parties agree not to use or disclose or otherwise use such confidential information of the other parry, except as provided herein or with the express written consent of the other party. Either party may use or disclose the confidential information of the other party (i) as required for the Services, but only to employees who are bound by written confidentiality agreements no less stringent than this Section 7, and (ii) as required by a court order or other legal process. The obligations under this Section 7 shall survive the termination of this Agreement by five (5) years. If Customer and Gasboy have executed a separate confidentiality agreement that might also cover the Confidential Information ('NDA'), this Agreement will not change or abrogate any of the terms of that NDA and such separate NDA shall not change or abrogate any of the terms of this Agreement, even though both agreements may apply to the same information. In the event that, notwithstanding the foregoing, one party ('Recipient') shall be compelled by the Information Laws to disclose any Confidential Information of the other party ('Discloser'), Recipient shall, and shall cause its Representatives to, furnish only that portion of the Confidential Information that is so legally required. 'Information Laws' means the Freedom of Information Ad of 1966 and the regulations promulgated thereunder, the Electronic Freedom of Information Ad of 1996, including without limitation such state's open records/public of information ad as set forth In such state statutes, laws, codes, and the regulations promulgated thereunder, and any similar applicable federal or state law, order, decree, rule, or regulation (each as in effect from time to time). Nothing herein shall restrict any disclosure of a partys information that: (A) is or becomes publicly available through no fault of the other party; (8) is independently developed by the other party; or (C) is received by the other party from a Third party without obligations of confidentiality. 'Representatives' shall mean the officers, employees, directors, attorneys, consultants and other agents and advisors of the Recipient Recipient shall take all reasonably necessary measures to restrain its Representatives from making any unauthorized disclosure or use of Confidants] Information. Recipient further agrees that It will be liable for the breach of this Agreement by any of its Representatives. 8. The Services provided under this An reement are covered by Gasboys current warranty, a copy of which is available upon request Gasboy reserves the right to modify such warranty, warranty policies, or warranty program on"(30) days prior written notice to Customer. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES - EXPRESS, IMPLIED, OR STATUTORY - INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 9. GASBOY WILL NOT BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE (UNLESS CAUSED BY GASBOY'S NEGLIGENCE, AND THEN ONLY IN THE PROPORTION WHICH GASBOYS NEGLIGENCE BEARS TO THE NEGLIGENCE OF OTHERS IN CAUSING THE INJURY OR DAMAGE), OR FOR ANY DAMAGES (REGARDLESS OF THEIR NATURE) CAUSED BY CUSTOMER'S FAILURE TO FULFILL ITS RESPONSIBILITIES AS SET FORTH HEREIN. IN NO EVENT SHALL GASBOY BE LIABLE UNDER THIS AGREEMENT FOR ANY LOSS OF PROFIT OR 25A-17 REVENUES, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGE, INCLUDING, BUT NOT LIMITED TO THOSE BASED UPON A BREACH OF WARRANTY, OR CONTRACT, NEGILIGENCE, STRICT TORT, OR ANY OTHER LEGAL, EQUITABLE, OR STATUTORY LEGAL THEORY. GASBOY'S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000). 10. 11 Customer requests Gasboy to perform activities outside of the provision of Services, such additional activities shall be subject to a separately agreement between the parties. 11. Upon expiration or termination of this Agreement Gesboyshall have nofurther obligationtoprovide orperform any Services for Customer. Gasboy will invoice Customer for all accrued fees and reimbursable expenses, and Customer shall pay the invoice immediately upon receipt Gasboy shag be entitled to recover from Customer all reasonable fees and other costs (including attorneys, consultants and otherfees) incurred by Gasboy in enforcing its right under this Agreement. Sections 5.11 of this Exhibit will survive any expiration or termination of the Agreement 25A-18