HomeMy WebLinkAboutHigh-Tech Digital Networks Inc (HDN); 2005-06-16;AMENDMENT NO. 3 TO EXTEND THE AGREEMENT FOR ADTRAN TELECOMMUNICATION
HARDWARE MAINTENANCE SERVICES
HIGH-TECH DIGITAL NETWORKS, INC. (HDN)
This Amendment No. 3 is entered into and effective as of the / (j aay of
, 2008, extending the agreement dated June 16, 2005 (the "Agreement")
by(^nd between the City of Carlsbad, a municipal corporation, ("City"), and High-Tech Digital
Networks, Inc. (HDN), ("Contractor") (collectively, the "Parties").
RECITALS
A. On June 13, 2006, the Parties executed Amendment No. 1 to extend the Agreement to
June 16,2007; and
B. On June 27, 2007, the Parties executed Amendment No. 2 to extend the Agreement to
June 16, 2008; and
B. The Parties desire to extend the Agreement for a period of one (1) year; and
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. The Agreement, as may have been amended from time to time, is hereby
extended for a period of one (1) year ending on June 16, 2009.
2. All other provisions of the Agreement, as may have been amended from time to
time, shall remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor pursuant to the
Agreement, as may have been amended from time to time, shall include coverage for this
Amendment.
City Attorney Approved Version #05.22.01
4. The individuals executing this Amendment and the instruments referenced on
behalf of Contractor each represent and warrant that they have the legal power, right and actual
authority to bind Contractor to the terms and conditions hereof of this Amendment.
CONTRACTOR
(sigrVnere)
Rick Leaner/President
(print name/title)
rick@hdncorp.com
(e-mail address)
*By:
(sign here)
(print name/title)
(e-mail address)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
City Manager or Mayor
ATTEST:
LORRAINE M. WOOD
City Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a Corporation. Agreement must be signed by one corporate officer from each of the following
two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
Deputy City Attorney
City Attorney Approved Version #05.22.01
AMENDMENT NO. 2 TO EXTEND THE AGREEMENT FOR ADTRAN TELECOMMUNICATION
HARDWARE MAINTENANCE SERVICES
HIGH-TECH DIGITAL NETWORKS, INC. (HDN)
This Amendment No. 2 is entered into and effective as of the ^?7- day of
'fU/]UL. _ , 2007, extending the agreement dated June 16, 2005 (the "Agreement")
between the City of Carlsbad, a municipal corporation, ("City"), and High-Tech Digital
Networks, Inc. (HDN), ("Contractor") (collectively, the "Parties").
RECITALS
A. On June 13, 2006, the Parties executed Amendment No. 1 to extend the Agreement to
June 16, 2007; and
B. The Parties desire to extend the Agreement for a period of one (1) year; and
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. The Agreement, as may have been amended from time to time, is hereby
extended for a period of one (1) year ending on June 16, 2008.
2. All other provisions of the Agreement, as may have been amended from time to
time, shall remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor pursuant to the
Agreement, as may have been amended from time to time, shall include coverage for this
Amendment.
City Attorney Approved Version #05.22.01
4. The individuals executing this Amendment and the instruments referenced on
behalf of Contractor each represent and warrant that they have the legal power, right and actual
authority to bind Contractor to the terms and conditions hereof of this Amendment.
CONTRACTOR
*By:
CITY OF CARLSBAD, a municipal
corporation of the State of California
" (sigrffiere)
Rick Leaner/President
City Manager or Mayor
(print name/title)
rick@hdncorp.com ATTEST:
*By:
(e-mail address)
(sign here)
^~^\
JRRAIMEAM. WOODA
^City Clerk-^ ^,f^$'fe,^ CA> ^JR^
(print name/title)
(e-mail address)
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a Corporation. Agreement must be signed by one corporate officer from each of the following
two groups.
*Group A.
Chairman,
President, or
Vice-President
"Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS
', City Attorney
Deputy City Attorney
City Attorney Approved Version #05.22.01
R ^UEST FORM - AUTO LIAB. ITY
FACTORS IN SUPPORT OF REQUEST TO MODIFY AUTOMOBILE INSURANCE
REQUIREMENT(S)
Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving
the requirement(s) entirely.
Requested by: Gordon Peterson, Information Technology 6/3/05
The proposed modification(s) to the insurance requirement for High-Tech Digital Networks, Inc. to provide
telecommunication hardware maintenance services. is:
(Name of contract)
a Coverage in the amount of: $
1X1 Any Auto Requirement
FACTOR(S) IN SUPPORT OF MODIFICATION(S)
(check those that apply)
I [Category Assumption(s) NA: Category assumptions are not applicable, [explain]*
|~~] No Auto Use Required: All work is done off-site and/or requires no use of an automobile.* [this is not
necessary if evident in scope of work]
[X] Amount of driving required: Occasional meetings with staff or one/few site visits for a service such as
maintenance.*
I | Significance of Contractor: Contractor has previous experience with the City that is important to the
efficiency of completing the scope of work and the quality of the work-product.*
I | Significance of Contractor: Contractor has unique skills and there are few if any alternatives, [explain:
include number of candidates RFP sent to and number responded if applicable]*
[~~| Contract Amount/Term of Contract: $ . Work will be completed over a period of .*
IX] Other*: High-Tech Digital Networks does not own any of the automobiles that their employees
use. Coverage is provided on the personal auto of the technician assigned to our account
* "Employment" below must be completed.
[X] Employment: There is a negligible chance that the City will be liable for damages related to a vehicle
accident because the risk of a finding that the Contractor is employed by the City is negligible, [explain]
Minimal risk to city in the agreement scope of work. Auto use is not part of the contractor's work
for the city.
Approved by City Attorney for this contract only?
yfl z\. _ (Signature) . (Date)
Reviewed by Risk Manager Uf~— <^-z~ ^^. ---- -F '--
(Date)
REQUEr^ FORM - PROFESSIONAL L~ BILITY
FACTORS IN SUPPORT OF REQUEST TO MODIFY PROFESSIONAL LIABILITY INSURANCE
REQUIREMENT(S)
Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving
the requirement(s).
Requested by: Gordon Peterson June 3, 2005
(Name and Department) (Date)
The proposed modification(s) to the insurance requirement(s) for High-Tech Digital Networks, Inc. to
provide telecommunication hardware maintenance services. is:
(Name of contract)
^Coverage in the amount of: $ .
Waive Professional Liability Requirement
FACTOR(S) IN SUPPORT OF MODIFICATION(S)
(check those that apply)
a Category Assumption^) NA: Category assumptions are not applicable, [explain]
a Significance of Contractor: Contractor has previous experience with the City that is important to the
efficiency of completing the scope of work and the quality of the work-product, [explain]
a Significance of Contractor: Contractor has unique skills and there are few if any alternatives, [explain:
include number of candidates RFP sent to and number responded if applicable]
a Contractor's work-product is recommendations only; no design or other work-product for which there is
no in-house expertise, [explain]:
a Professional Liability coverage is not available to this contractor or would increase the cost of the
contract by $ [explain]'.
aOther (e.g. explain why exposures minimal how exposures covered in another policy, exposure control
mechanisms, and any other information pertinent to your request): Contractor will be handling
maintenance for Adtran Hardware. Under the new Professional Liability requirements developed
this year, this is not a contract for whom the insurance is required.
Approved by City Attorney for this contract
Reviewed by Risk Manager
(Date)
/ -6?_
(Signature/ (Date)
AMENDMENT NO. 1 TO EXTEND THE AGREEMENT FOR ADTRAN TELECOMMUNICATION
HARDWARE MAINTENANCE SERVICES
HIGH-TECH DIGITAL NETWORKS, INC. (HDN)
This Amendment No. 1 is entered into and effective as of the I? day of
, 2006, extending the agreement dated June 16, 2005 (the "Agreement")
by and between the City of Carlsbad, a municipal corporation, ("City"), and High-Tech Digital
Networks, Inc. (HDN), a California corporation, ("Contractor") (collectively, the "Parties").
RECITALS
A. The Parties desire to extend the Agreement for a period of one (1) year; and
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. The Agreement, as may have been amended from time to time, is hereby
extended for a period of one (1) year ending on June 16, 2007.
2. All other provisions of the Agreement, as may have been amended from time to
time, shall remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor pursuant to the
Agreement, as may have been amended from time to time, shall include coverage for this
Amendment.
City Attorney Approved Version #05.22.01
4, The individuals executing this Amendment and the instruments referenced on
behaif of Contractor each represent and warrant that they have the iegai power, right and actual
authority to bind Contractor to the terms and conditions hereof of this Amendment.
CONTRACTOR
(sign h&i)
Rick Leaner/President
(print name/title)
Rick@HDNCORP.com
*By:
(e-mail address)
(sign here)
(print name/title)
(e-mait address)
CITY OF CARLSBAD, a municipal
corporation of the State of California
City Manager or Mayop
ATTEST:
LORRAIN&M
City Clerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a Corporation. Agreement must be signed by one corporate officer from each of the following
two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officers) signing to bind the corporation.
APPROVED AS TO FORM:
RONACD R./6#£L/City Attorney
Deputy City Attorney
City Attorney Approved Version #05 22.01
5500 Bolsa Avenue Suite 135
Huntington Beach, CA 92649
Tel (714) 379-3350
Fax (714) 379-5353
HIGH-TECH DIGITAL NETWORKS, INC. Tech Line (800) 735-3329
High-Tech Digital Networks, Inc. Resolution No.: 052406-1
Therefore, be it resolved that on May 1st 2006, The Board of Directors of High-Tech Digital Networks,
Inc. hereby approves and ratifies all contracts that High-Tech Digital Networks, Inc. enters into with the
City of Carlsbad, a municipal corporation. Further, that Rick Legner / President is authorized to sign
contracts on behalf of High-Tech Digital Networks, Inc.. Further, that this approval to enter into contracts
on behalf of High-Tech Digital Networks, Inc. shall be binding upon High-Tech Digital Networks, Inc.
from June 1st 2006 to May 31st 2007.
High-Tech Digital Networks, Inc.
Dated:
Rick Legner
President
AGREEMENT FOR ADTRAN TELECOMMUNICATION HARDWARE
MAINTENANCE SERVICES
HIGH-TECH DIGITAL NETWORKS, INC. (HDN)
THIS AGREEMENT is made and entered into as of the 16 dayof ,3w, ,2005, by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and High-Tech Digital Networks, Inc. (HDN), a California
Corporation, ('Contractor'').
RECITALS
A. City requires maintenance services of a telecommunications Contractor
that is experienced in providing maintenance of Adtran, Inc. voice and data wide area
network telecommunication equipment.
services related to Adtran manufactured voice and data equipment.
expedited fashion.
willingness and ability to perform such work.
B.
D.
E.
Contractor has the necessary experience in providing maintenance
Selection of Contractor is expected to achieve the desired results in an
Contractor has submitted a proposal to City and has affirmed its
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this
reference in accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional
care and skill customarily exercised by reputable members of Contractor's profession
practicing in the Metropolitan Southern California Area, and will use reasonable
diligence and best judgment while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of one (1) year from the date
first above written. The City Manager may amend the Agreement to extend it for three
(3) additional one (1) year periods or parts thereof in an amount not to exceed fifteen
thousand dollars ($1 5,000) per Agreement year. Extensions will be based upon a
satisfactory review of Contractor's performance, City needs, and appropriation of funds
by the City Council. The parties will prepare a written amendment indicating the
effective date and length of the extended Agreement.
4.
Time is of the essence for each and every provision of this Agreement.
TIME IS OF THE ESSENCE
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City Attorney Approved Version #05.22.01
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term
will not exceed thirty thousand dollars ($30,000), including maintenance of the
equipment listed and quoted on Exhibit "B". No other compensation for the Services will
be allowed except for items covered by subsequent amendments to this Agreement.
The City reserves the right to withhold a ten percent (10%) retention until City has
accepted the work and/or Services specified in Exhibit "A.
Incremental payments, if applicable, should be made as outlined in attached Exhibit "B".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent
contractor and in pursuit of Contractor's independent calling, and not as an employee of
City. Contractor will be under control of City only as to the result to be accomplished,
but will consult with City as necessary. The persons used by Contractor to provide
services under this Agreement will not be considered employees of City for any
purposes.
The payment made to Contractor pursuant to the Agreement will be the full and
complete compensation to which Contractor is entitled. City will not make any federal or
state tax withholdings on behalf of Contractor or its agents, employees or
subcontractors. City will not be required to pay any workers' compensation insurance or
unemployment contributions on behalf of Contractor or its employees or subcontractors.
Contractor agrees to indemnify City within thirty (30) days for any tax, retirement
contribution, social security, overtime payment, unemployment payment or workers'
compensation payment which City may be required to make on behalf of Contractor or
any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any
balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval
of City. If Contractor subcontracts any of the Services, Contractor will be fully
responsible to City for the acts and omissions of Contractor's subcontractor and of the
persons either directly or indirectly employed by the subcontractor, as Contractor is for
the acts and omissions of persons directly employed by Contractor. Nothing contained
in this Agreement will create any contractual relationship between any subcontractor of
Contractor and City. Contractor will be responsible for payment of subcontractor.
Contractor will bind every subcontractor and every subcontractor of a subcontractor by
the terms of this Agreement applicable to Contractor's work unless specifically noted to
the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
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9. INDEMNIFICATION
Except as to the sole negligence or willful misconduct of City, Contractor will defend,
indemnify and hold City, its officers, agents and employees, harmless from any and all loss, damage, claims, demands, liability, expense or cost, including attorney's fees,
which arises out of, or is in any way connected with the performance of, the Services by
Contractor or any of Contractor's employees, agents or subcontractors, notwithstanding
that City may have benefited from their services.
The parties expressly agree that any payment, attorney's fee, costs or expense City
incurs or makes to or on behalf of an injured employee under the City's self-
administered workers' compensation is included as a loss, expense or cost for the
purposes of this section, and that this section will survive the expiration or early
termination of the Agreement.
IO. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property
which may arise out of or in connection with performance of the services by Contractor
or Contractor's agents, representatives, employees or subcontractors. The insurance
will be obtained from an insurance carrier admitted and authorized to do business in the
State of California. The insurance carrier is required to have a current Best's Key Rating
of not less than "A-:V".
10.1 Coveraqe's and Limits
Contractor will maintain the types of coverage's and minimum limits indicated below,
unless City Attorney or City Manager approves a lower amount. These minimum
amounts of coverage will not constitute any limitations or cap on Contractor's
indemnification obligations under this Agreement. City, its officers, agents and
employees make no representation that the limits of the insurance specified to be
carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If
Contractor believes that any required insurance coverage is inadequate, Contractor will
obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1 .I Commercial General Liability Insurance $1,000,000 combined
single-limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits will apply
separately to the work under this Agreement or the general aggregate will be twice the
required per occurrence limit.
10.1.2 Automobile Liability (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily
injury and property damage.
City Attorney Approved Version #05.22.01
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10.1 -3 Workers' Comeensation and Emelover's Liabilitv. Workers'
Compensation limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation and
Employer's Liability insurance will not be required if Contractor has no employees and
provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must
be maintained for a period of five years following the date of completion of the work.
10.2. Additional Provisions
Contractor will ensure that the policies of insurance required under this Agreement
contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on General
Liability .
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior written notice
to City sent by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements
Prior to City's execution of this Agreement, Contractor will furnish certificates of
insurance and endorsements to City.
10.4 Failure to Maintain Coverage
If Contractor fails to maintain any of these insurance coverages, then City will have the
option to declare Contractor in breach, or may purchase replacement insurance or pay
the premiums that are due on existing policies in order to maintain the required
coverages. Contractor is responsible for any payments made by City to obtain or
maintain insurance and City may collect these payments from Contractor or deduct the
amount paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime,
complete and certified copies of any or all required insurance policies and
endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of
the Agreement, as may be amended from time-to-time.
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12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred
under this Agreement. All records will be clearly identifiable. Contractor will allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of records and any other documents created pursuant to this
Agreement. Contractor will allow inspection of all work, data, documents, proceedings,
and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors
pursuant to this Agreement is the property of City. In the event this Agreement is
terminated, all work product produced by Contractor or its agents, employees and
subcontractors pursuant to this Agreement will be delivered at once to City. Contractor
will have the right to make one (1) copy of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City
and Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written
notice on behalf of City and on behalf of Contractor under this Agreement.
For Ci tv: For Contractor
Title Information Technolonv Director Name Rick Lenner
Department Information Technoloav Title President
City of Carlsbad Address 5500 Bolsa Avenue, Ste 135
Address 1635 Faradav Avenue Huntington Beach, CA 92649
Phone No. 760-602-2450 Phone No. 71 4-379-3350
Each party will notify the other immediately of any changes of address that would
require any notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
City will evaluate Contractor's duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City's Conflict of Interest Code is required
of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor's affected employees,
agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor's agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
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Contractor further warrants that neither Contractor, nor Contractor's agents, employees,
subcontractors and consultants have any ancillary real property, business interests or
income that will be affected by this Agreement or, alternatively, that Contractor will file
with the City an affidavit disclosing this interest.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way
affect the performance of the Services by Contractor. Contractor will at all times observe
and comply with these laws, ordinances, and regulations and will be responsible for the
compliance of Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act
of 1986 and will comply with those requirements, including, but not limited to, verifying
the eligibility for employment of all agents, employees, subcontractors and consultants
that the services required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following
procedure will be used to resolve any questions of fact or interpretation not otherwise
settled by agreement between the parties. Representatives of Contractor or City will
reduce such questions, and their respective views, to writing. A copy of such
documented dispute will be forwarded to both parties involved along with recommended
methods of resolution, which would be of benefit to both parties. The representative
receiving the letter will reply to the letter along with a recommended method of
resolution within ten (IO) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City
Manager. The City Manager will consider the facts and solutions recommended by each
party and may then opt to direct a solution to the problem. In such cases, the action of
the City Manager will be binding upon the parties involved, although nothing in this
procedure will prohibit the parties from seeking remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services,
City may terminate this Agreement for nonperformance by notifying Contractor by
certified mail of the termination. If City decides to abandon or indefinitely postpone the
work or services contemplated by this Agreement, City may terminate this Agreement
upon written notice to Contractor. Upon notification of termination, Contractor has five
(5) business days to deliver any documents owned by City and all work in progress to
City address contained in this Agreement. City will make a determination of fact based
upon the work product delivered to City and of the percentage of work that Contractor
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has performed which is usable and of worth to City in having the Agreement completed.
Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may
terminate this Agreement. In this event and upon request of City, Contractor will
assemble the work product and put it in order for proper filing and closing and deliver it
to City. Contractor wit1 be paid for work performed to the termination date; however, the
total will not exceed the lump sum fee payable under this Agreement. City will make the
final determination as to the portions of tasks completed and the compensation to be
made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any City of Carlsbad
or person, other than a bona fide employee working for Contractor, to solicit or secure
this Agreement, and that Contractor has not paid or agreed to pay any City of Carlsbad
or person, other than a bona fide employee, any fee, commission, percentage,
brokerage fee, gift, or any other consideration contingent upon, or resulting from, the
award or making of this Agreement. For breach or violation of this warranty, City will
have the right to annul this Agreement without liability, or, in its discretion, to deduct
from the Agreement price or consideration, or otherwise recover, the full amount of the
fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to
City must be asserted as part of the Agreement process as set forth in this Agreement
and not in anticipation of litigation or in conjunction with litigation. Contractor
acknowledges that if a false claim is submitted to City, it may be considered fraud and
Contractor may be subject to criminal prosecution. Contractor acknowledges that
California Government Code sections 12650 et sea, the False Claims Act applies to
this Agreement and, provides for civil penalties where a person knowingly submits a
false claim to a public entity. These provisions include false claims made with deliberate
ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claim Act, it is
entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges
that the filing of a false claim may subject Contractor to an administrative debarment
proceeding as the result of which Contractor may be prevented to act as a Contractor
on any public work or improvement for a period of up to five (5) years. Contractor
acknowledges debarment by another jurisdiction is grounds for City to terminate this
Agreement.
23.
Any action at law or in equity brought by either of the parties for the purpose of
enforcing a right or rights provided for by this Agreement will be tried in a court of
competent jurisdiction in the County of San Diego, State of California, and the parties
waive all provisions of law providing for a change of venue in these proceedings to any
City Attorney Approved Version #05.22.01 7
other county. Except as otherwise provided herein, if a dispute should arise between the
parties including, but not limited to arbitration, each party is responsible for its own
Attorney's Fees.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor
any monies due or to become due under it may be assigned by Contractor without the
prior consent of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated
by it, along with the purchase order for this Agreement and its provisions, embody the
entire Agreement and understanding between the patties relating to the subject matter
of it. In case of conflict, the terms of the Agreement supersede the purchase order.
Neither this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in a writing signed by both parties.
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf
of Contractor and City Carlsbad each represent and warrant that they have the legal
power, right and actual authority to bind their organizations to the terms and conditions
of this Agreement.
27. LIMITED LIABILITY
Contractor does not warrant that the services or related equipment will satisfy
Contractor's requirements or that the resulting network will be without defect or error or
that the operation of the network will be uninterrupted. In no event will Contractor be
liable for any special, consequential, indirect or contingent damages whatsoever in
connection with this Agreement, including lost or damaged data, loss of business, or
anticipatory profits, of any other consequential or incidental damages resulting from the
use or operation of the network or the maintenance thereof or in any way arising out of
or related to this Agreement and whether arising in contract, tort or otherwise.
28. CONFIDENTIAL INFORMATION DEFINED
Contractor and City of Carlsbad may, during the performance of the services hereunder,
have access to and acquire knowledge including without limitation of methods;
processes; formulae; compositions; inventions; machines; computer software; source
codes; computer hardware; research projects; Contractor lists; pricing data; sources of
supply; marketing, production, merchandising systems or plans associated with the
other's business; electronic images data, systems and other information concerning the
operation, business, financial affairs, products, Contractors, intellectual propriety rights
or other aspect of the other party that may not be know to the general public
("Confidential Information"). Notwithstanding the foregoing, "Confidential Information"
also includes (i) Contractor's project and components thereof and, (ii) any information or
material that the other party obtains from any third party that the disclosing party treats
City Attorney Approved Version #05.22.01
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as proprietary or designates as Confidential Information, whether or not owned by the
disclosing party. "Confidential Information" does not include information that the non-
disclosing party can document in reasonable detail to the disclosing party's satisfaction:
(w) is released pursuant to applicable public records laws (x) is known by the other
party at the time of receipt from the disclosing party and is not subject to any other non-
disclosure agreement between the parties; (y) is now, or hereafter becomes, generally
known to the industry or public through no fault of the non-disclosing party; or, (z) is
otherwise lawfully and independently developed by the non-disclosing party, or lawfully
acquired from a third party without any obligation of confidentiality.
29. NON-DISCLOSURE
Neither party shall use, publish or divulge any Confidential Information to any third party
without the other's prior, express, written approval, which the other party may withhold
in its sole discretion. Both parties agree that Confidential Information will only be
disclose to those of its employees and consultants as is necessary to perform under this
Agreement. Both parties shall cause its employees, agents and every other party it
employs in connection with this Agreement, to protect the Confidential Information from
unauthorized use or disclosure with the same degree of care, but no less reasonable
care, as the party uses to protect its own confidential information of like nature. Either
party shall notify the other in writing in the event of any misuse or misappropriation of
the Confidential Information that comes to its attention. In the event that either party is
directed or required to disclose any portion of the Confidential Information, the party
requested or required to disclose shall immediately notify the other thereof in writing.
Upon the termination of this Agreement, each party shall immediately return all
Confidential Information to the other party.
30. PUBLIC RECORDS ACT REQUESTS
In the event the City receives a request under the California Public Records Act for
Contractor's Confidential Information, the City will promptly notify Contractor. Within
five (5) days after receiving the notice, Contractor will inform the City whether
Contractor objects to disclosure of the requested information. If Contractor does not
object to disclosure or if Contractor fails to respond to the City within five (5) calendar
days the City will be relieved of its confidentiality obligation with respect to the
requested information and may release the requested information.
If Contractor does object to disclosure, then the City will decline to produce the
requested information provided Contractor agrees to indemnify, defend, and hold the
City harmless from and against all claims, damages, judgments, awards, costs of
litigation and attorney fees arising out of the declination.
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31. NON-CIRCUMVENTION
Both parties agree to refrain from contact with the other party's current employee to
solicit, entice, or persuade any employee of the other party to leave the services of the
other party.
CONTRACTOR CITY OF CARLSBAD, a municipal
corporation of the State of
California
1 hergy Manage) dukqw
**By:
(sign here)
City Clerk
(print name/title)
If required by City, proper notarial acknowledgment of execution by contractor must be
attached. If a CorDoration, Agreement must be signed by one corporate officer from
each of the following two groups.
*Group A.
Chairman,
President, or
Vice-president
"Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
ROW R.nAttomey
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
/ On dude 2, zsoc beforeme, fHC&/G
Name and Title of Officer (e.g.:"Jane Doe, Notary Public")
Name@) of Signer@)
personally appeared /? Icltn-LD IRW\ L Et5NleR
0 personally known to me -0R- proved to me on the basis of satisfactory evidence to be the person(* whose
name(* is/% subscribed to the within instrument and
acknowledged to me that he/- executed the same in
hislkerClkeif authorized capacity(w, and that by hislhedhif
signature(+ on the instrument the person(+, or the entity upon
behalf of which the person@ acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
Description of Attached Document
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: R 1 Cg LEG de
0 Individual E3 Corporate Officer 0 Titles(s): 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact 0 Trustee 0 Guardian or Conservator 0 Other:
Signer Is Representing:
r t+/i?H- I CU Dlh!-T;4L
d&Ti,d 0 (2 IC 5 Id c
Signer's Name:
n Individual
Corporate Officer 0 Title(s): Partner-• Limited 0 General 0 Attorney-in-Fact
Trustee 0 Guardian or Conservator 0 Other:
Signer Is Representing:
I
SCOPE OF SERVICES
High-Tech Digital Networks, lnc. agrees to provide maintenance service of the
equipment as described in Exhibit "B, and to keep the equipment in good working
order. This service will consist of on-site service call(s), remedial maintenance, and
component swap out (including free replacement of unserviceable parts and the return
of said parts to the manufacturer for repair). Scheduled restorative maintenance will be
performed during that portion of the period selected by the client who falls between the
hours of 8:OOAM and 5:OO PM, Monday through Friday, know as "High-Tech Digital
Networks, Inc., nom1 working hours". If the client requests preventative maintenance
at times outside of High-Tech Digital Networks, Inc., normal working hours, High-Tech
Digital Networks, Inc. may charge at per call rates and terms then in effect. Restorative
maintenance will be based on the specific need of the individual piece of equipment as
determined by High-Tech Digital Networks, Inc. including necessary adjustments and
replacement of unserviceable parts. There will be NO CHARGE FOR EMERGENCY
VISITS due to equipment failure. This service is available on a 7 day 24 hour basis with
up to a 4 hour on premises response after notification by customer, if High-Tech Digital
Networks, Inc., deems the on site visit to be necessary. On premises necessity is
determined after High-Tech Digital Networks, Inc. has exhausted all remote
maintenance capabilities.
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EQUIPMENT AND FEES
Equipment Covered
Location Part Number
Faraday Data
Center 4200321 L2
1635 Faraday Ave 1200771L1
1200223Ll
1 200 1 85L3
12001 84L1
Dialer System
Dove Library Data
Center 1200226Ll
1775 Dove Lane 1200771 L1
12001 85L3
12001 84L1
12000220L1
Dialer System
Safety Data
Center 12001 80L1
2560 Orion Way 1200185L3
12001 84L1
12000220L1
Dialer System
Equipment Summary
GUY 1
1
1
1
8
7
2
3
Qtv
1
1
1
3
4
1
1
1
1
1
1
1
1
4
2
1
1
Description
Adtran Atlas 890 AC Redundant System
Adtran Atlas NxTl HSSIN.35 Module
Adtran Atlas T3 Module
Adtran Atlas Quad TI/PRI Module
Adtran Atlas Quad V.35 Module
7/24 Automated Dialer
- cost
$6,000
Adtran Atlas 800+ AC Non-Redundant System
Adtran Atlas NxTl HSSIN.35 Module
Adtran Atlas Quad TI/PRI Module
Adtran Atlas Quad V.35 Module
Redundant Power
7/24 Automated Dialer
$3,600
Adtran Atlas 800 AC Non-Redundant System
Adtran Atlas Quad TlIPRI Module
Adtran Atlas Quad V.35 Module
Redundant Power
7/24 Automated Dialer
$3,600
Annual Total
Invoiced Quarterly
DescriDtion
ADTRAN ATLAS 890 REDUNDANT CHASSIS W/ DUAL PIS
ADTRAN ATLAS 800+ CHASSIS W/ SINGLE PIS
ADTRAN ATLAS 800 CHASSIS W/ SINGLE P/S
ADTRAN DS3 CARD
ADTRAN ATLAS QUAD TI/PRI CARD
ADTRAN QUAD V.35 SERIAL CARD
ADTRAN ATLAS HSSl /QUAD TI CARD
ADTRAN ATLAS AUTOMATIC DIALING SYSTEM
$1 3,200
$3,300
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Additional Sewices
Services provided to the City by High-Tech Digital Networks, Inc. that fall outside the
maintenance described above shall be billed at one hundred and fifty dollars ($150) per
hour, with one hundred and ffly dollar ($150) round-trip travel charge.
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