Loading...
HomeMy WebLinkAbout25C - MAINTENANCE OF THE C OMPUTER AND DISPATCH SYSTEMREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 19, 2012 TITLE: AGREEMENT WITH TIBURON INC. TO PROVIDE MAINTENANCE OF THE COMPUTER AND DISPATCH SYSTEM LOQITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1St 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 the attached amendment to the agreement with Tiburon Inc., for the annual maintenance and support of the Computer Aided Dispatch (CAD) System in an amount not to exceed $71,000 subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On September 21, 2005, Council approved the agreement with Positron Public Safety Systems Corp., to provide annual maintenance and support of the Computer Aided Dispatch system for the Santa Ana Police Department. Tiburon purchased the Computer Aided Dispatch division of Positron, which is now a fully integrated business unit of Tiburon. The Police Department currently uses the CAD system to manage and dispatch all calls for service throughout the City. The Santa Ana Police Department wishes to continue services with Tiburon by amending said agreement which includes all services previously provided by Tiburon in relation to said system. The recommended action will allow for continuous service to the Santa Ana Police Department. FISCAL IMPACT Funds are available in the Police Department's Computer Services fund (account no. 01114425- 62300). Paul M. Walters Chief of Police Department APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez 4- Executive Director Finance & Mgmt. Services Agency 25C-1 25C-2 CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this day of , 2012 by and between "the Parties," Tiburon, Inc., a Virginia corporation with its principle place of business at 6200 Stoneridge Mall Road, Suite 400, Pleasanton, California, 94588 (hereinafter "Tiburon" and/or "Consultant"), 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 and/or the Client")." RECITALS A. The City and Positron Public Safety Systems, Corp. (hereinafter "Positron"), entered into Agreement A-2004-229, dated September 21, 2005, by which Positron was to provide the Santa Ana Police Department with a Computer Aided Dispatch (CAD) system, Power CAD and related components. B. The City and Positron agreed upon Change Order #2 dated January 17, 2008 to the original agreement, A-2004-229, wherein Positron was to replace the originally agreed upon Computer Aided Dispatch (CAD) system, Power CAD, with another like system, IQ/CAD and its related components. C. Thereafter, Tiburon purchased the Computer Aided Dispatch division of Positron, which is now a fully integrated business unit of Tiburon. D. Thereafter, the Parties agreed that Tiburon would provide ongoing maintenance and support services relating to the above-referenced CAD system, as was required by City in order to ensure ongoing maintenance of said system. However, due to an oversight, this agreement was not executed in writing. Per agreement of the Parties, this Agreement is now made to include all services previously provided by Tiburon to City in relation to said system. E. The City has determined that it requires continued maintenance support services relating to the Police Department CAD system, and desires to retain a consultant having special skill and knowledge in this field. F. Consultant represents that Consultant is able and willing to provide such services to the City. G. 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. 25C-3 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 those services as set forth in Exhibit A to this Agreement ("Maintenance and Support Guidelines"), attached hereto and incorporated by reference. Included within the scope of this agreement are all services previously provided by Consultant to City in relation to the Police Department CAD system. 2. COMPENSATION City agrees to pay, and Consultant agrees to accept as total payment for all services provided by Consultant to City, a total sum not to exceed $71,000.00 during the term of this Agreement. 3. TERM This Agreement shall commence on the date first written above and terminate on December 30, 2012, unless terminated earlier in accordance with Section 12, below. The term of this Agreement may be extended upon a writing executed by the Executive Director of the Police Department and approved by the City Attorney. In order to provide for continuous uninterrupted service to City, this agreement shall include all services previously rendered by Consultant to City. 4. 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 nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which 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 standards and 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. 5. INSURANCE 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: 25C-4 a. Commercial General Liability Insurance. Consultant 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 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 and 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 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant 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. 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 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 Consultant 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 Consultant's right to be paid 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. 25C-5 6. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, 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 Consultant 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 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. 7. 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 to any 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. 8. 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 under this Agreement. 25C-6 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: 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 City of Santa Ana Police Department City of Santa Ana 20 Civic Center Plaza (M-97) P.O. Box 1988 Santa Ana, California 92702 Fax: 714-245-8094 Attn: Mike Watson, Corporal City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax: 714-647-6515 To Consultant: Tiburon, Inc. 6200 Stoneridge Mall Road, Suite 400 Pleasanton, California, 94588 Fax: 925-621-2799 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 25C-7 10. EXCLUSIVITY AND AMENDMENT This Agreement represents 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, 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 Consultant. 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 Consultant 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 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. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. 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 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. 13. 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. 25C-8 14. 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. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. 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. 16. 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: Teresa L. Judd Assistant City Attorney PAUL M. WALTERS Interim City Manager TIBURON, INC. Name: Title: 25C-9 25C-10 EXHIBIT A See agreement A-2004-229, page 112 25C-11 25C-12