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HomeMy WebLinkAboutTPG SOFTWARE; 1997-05-13;AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT, made and entered into as of the /3& day of /%4Y , 19 97 , by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as “City” or Licensee, and TPG SOFTWARE, hereinafter referred to as “Contractor.” RECITALS City requires the services of a Software Contractor to provide the necessary license for investment accounting software services for preparation of investment reports; and Contractor possesses the necessary skills and qualifications to provide the services required by the City; Contractor owns or has licensed (with the right to sublicense) certain computer software product(s) described on the Schedule (the “Product”) attached hereto as Exhibit B. The term Product as used herein shall include one copy of the user documentation for the software product(s) described in the Schedule. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. CONTRACTOR’S OBLIGATIONS A. Implementation Fees. TPG shall provide the Product for implementation including : Print Date: May 9, 1997 rev. 4/l 9196 1. Data Conversion and Reconciliation. TPG shall provide data conversion of City’s data, deliver the converted data to License and assists in the reconciliation of the converted data. TPG shall perform the reconciliation at City’s Site(s), for up to the number of working days specified on the Schedule, by its technical staff personnel. City shall pay TPG the conversion fee set forth in the Schedule and shall reimburse TPG for all reasonable out-of-pocket expenses for such assistance. 2. Installation. TPG shall provide installation assistance, on the computer system(s) at the Site(s), for up to the number of working days specified on the Schedule, by its technical staff personnel. City shall pay TPG the installation fee set forth in the Schedule and shall reimburse TPG for all reasonable out-of-pocket expenses for such installation assistance. 3. Product Training. TPG shall provide Product training, on the computer system(s) at the Site(s), for up to the number of working days specified on the Schedule, by its technical staff personnel. City shall pay TPG the training fee set forth in the Schedule and shall reimburse TPG for all reasonable out-of-pocket expenses for such assistance. B. Acceptance. Unless City notifies TPG of technical difficulties in installing the Product, the Product must be installed and tested within sixty (60) days after TPG delivers the Product. City will have accepted the Product when (i) the Product has been installed and performs TPG’s tests successfully, (ii) City generates production Print Date: May 9, 1997 rev. 4/l 9196 reports using the Product, or (iii) City fails to install the Product within sixty (60) days, whichever occurs first. C. Support Services. TPG shall provide City with the following support services in the use of the Product. 1. Scope of Support. The scope of support provided by TPG to City shall include: a) New Releases. TPG shall provide City, without charge, new Product releases and updates of the Product which do not constitute a new version of the Product and that are generally provided to its licensees of the Product. TPG shall determine, at its sole discretion, whether a release or update is so substantial as to constitute a new version of the Product. TPG shall have no obligation to supply a Product release or update if it will not operate on City’s computer system(s). W Help Desk Support. TPG shall provide City technical support, via telephone, Bulletin Board transmission or fax of an operational nature with respect to the Product and any updates or releases hereafter provided to City. This support shall be provided during TPG’s normal business hours Monday to Friday 8:00 a.m., to 500 p.m. central standard time. TPG does not provide a toll free telephone number. c) Callback Procedures. TPG shall respond to City’s calls, whether initial or return, according to the following guidelines: Severity 1. Within seven (7) business days prior to the last business day of a month, the production system is Print Date: May 9, 1997 rev. 4/I 9196 down; requires immediate attention (i.e. excessive abnormal termination for data integrity problems). Direct connection or callback within twenty-four (24) hours. Severitv 2. The production system is down at any time other than the seven (7) business days prior to the end of the month, or any other problem occurs with the Product which fails to conform to the documentation. Direct connection or callback within forty-eight (48) business hours. d) Traininq. TPG shall provide on site training and or City may attend TPG’s training classes for the Product at TPG’s designated location and all travel, lodging and related costs and expenses incurred by City in connection with its attendance at such classes shall be paid by City. When training is scheduled at City’s location then City shall pay TPG the training fee set forth in the Schedule and shall reimburse TPG for all reasonable out-of-pocket expenses. 2. TPG’s Obligation Under Support. When City reports a problem to TPG, City shall provide TPG with reasonably detailed Documentation and explanation, together with underlying data, to substantiate any such problem or failure and to assist TPG in its efforts to diagnose and correct the problem or failure. If further investigation determines that the problem was attributable to a cause other than an error in the Software, then City will pay for TPG’s efforts in diagnosing and resolving the problem. TPG shall submit to City a proposal for the costs associated in resolving the problem. The costs shall be based on a time and material basis, not to exceed TPG’s then- current rates for such services. Print Date: May 9, 1997 4 rev. 4/l 9/96 3. Support Coordinator. City shall designate one qualified contact person as the Support Coordinator regarding support for the Product. City shall notify TPG if it changes the Support Coordinator. Telephone Support questions from City’s individual end-users of the product will be directed to a Support Coordinator. . 4. Discontinuance of Support. All rights of City under this paragraph 8 shall be contingent upon timely payment of the support fee by City. If the Support Services are discontinued by City, then reinstatement of Support Services to City shall be subject to the terms and conditions of TPG’s then-current reinstatement policy (which policy may include, without limitation, the payment of a fee to TPG). 5. Termination of License. The use of the Product and Support Services shall automatically terminate upon expiration or termination for any reason of the license granted under paragraph 8. D. Warrantv and Limitation of Liabilitv. TPG warrants that the Product will perform as described in the documentation supplied therewith on a properly functioning model of the type of computer system(s) identified on the Schedule. This warranty is void if the Product is altered or modified in any way by anyone other than TPG. If the Product fails to perform, TPG shall repair or replace the Product. If repair or replacement of the software product is not feasible, then TPG shall refund to City the lease fee paid for the Product less one-twelfth (l/12) of the annual lease fee per month that City retained possession of the Product, in which event the lease shall terminate. Print Date: May 9, 1997 rev. 4/19/96 TPG HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. TPG does not provide a warranty to cover any data input errors by the user (City). 2. CITY OBLIGATIONS The City’s obligations are set forth in Exhibit A attached hereto and incorporated herein by reference. A. City is solely responsible for obtaining, installing, operating and maintaining, at its own expense, computer hardware and communication equipment required to run the Product. B. Limitations on License 1. City agrees to use the Product solely on the computer system(s) and the number of computers or work stations designated in the Schedule, solely at the Site(s) and solely for City’s own applications. City shall not permit any third parties to use the Product and City shall not use the Product in any manner not expressly authorized by this Agreement. 2. City acknowledges that the Product is and remains the sole proprietary property of TPG and/or the party from which TPG has licensed the Product or portions thereof. City shall not disclose the form or substance of the Product or any part thereof to any third party. City shall not reverse engineer or decompile the Product. City shall use the same care to protect the Product from inadvertent Print Date: May 9, 1997 6 rev. 4/l 9196 disclosure as it would for its own highly confidential or proprietary information. City shall immediately advise TPG in the event that the Product or any portion thereof is disclosed to any other person or entity. 3. City shall install the Product into the computer(s) located and maintained at the Site(s) identified in this Agreement. City may for the purposes of archival and back-ups copy the Product and documentation as necessary. City shall not alter or delete the copyright and other proprietary marks or notices contained in the Product or accompanying documentation. 3. PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt of notification to proceed by the City. 4. FEES TO BE PAID TO CONTRACTOR The total fee payable for the services to be performed shall be $6,140, itemized as set forth in Exhibit B attached hereto and incorporated herein by reference. The total lease fee includes the license and support fees. City shall pay to TPG ftfty percent (50%) of the lease fee set forth in the Schedule upon execution of this Agreement. The balance of the license fee within fifteen (15) days after successful installation and testing of the Product as described in paragraph 1. City shall pay the fee for any renewal term annually before commencement of the term. Print Date: May 9, 1997 7 rev. 4/l 9196 Taxes: City is solely responsible for all taxes arising from Customer’s use or possession of the Product, including, but not limited to, sales, use, value added, excise, property and other taxes, excepting only any income tax imposed on TPG. Interest. Any amount payable by City hereunder which is not paid when due shall bear interest from the date until paid at the rate of one percent (1%) per month. 5. DURATION OF CONTRACT This agreement shall extend for a period of one year from date thereof. The contract may be extended by the City Manager for two additional one (1) year periods or parts thereof, based upon a review of satisfactory performance and the City’s needs. The parties shall prepare extensions in writing indicating effective date and length of the extended contract. 6. COVENANTS AGAINST CONTINGENT FEES The Contractor warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the Contractor, to solicit or secure this agreement, and that Contractor has not paid or agreed to pay any company 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, the City shall 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 such fee, commission, percentage, brokerage fees, gift, or contingent fee. Print Date: May 9, 1997 8 rev. 4/l 9196 .I. . . 7. NONDISCRIMINATION CLAUSE The Contractor shall comply with the state and federal laws regarding nondiscrimination. 8. TERMINATION OF CONTRACT Any termination of the Agreement shall be effective only at the end of the then- current term. TPG may terminate the Agreement upon at least one hundred and twenty (120) days prior notice to City if the Product is superseded or replaced by a new software program, or City elects not to install the new software program, or TPG, at its sole discretion, elects not to support the version or release of the Product licensed by City. If City breaches any of the terms of this Agreement, and such breach is not remedied within thirty (30) days of the date of written notice, TPG shall have the option to terminate upon providing written notice of its intention by certified mail. If TPG breaches any of the terms of this Agreement, and such breach is not remedied within thirty (30) days of the date of written notice, City shall have the option to terminate upon providing written notice of its intention by certified mail. Upon termination or expiration for any reason of this Agreement or any license hereunder, City, at it’s own cost, shall immediately return to TPG the Product, any copies thereof, and all materials relating thereto and shall certify to TPG in writing that the Product has been deleted from its computer system(s) and is no longer being used by City. TPG will refund on a pro rata basis any unused fees collected in advance. Print Date: May 9, 1997 9 rev. 4/l 9196 9. CLAIMS AND LAWSUITS The Contractor agrees that any contract claim submitted to the City must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. The Contractor acknowledges that if a false claim is submitted to the City, it may be considered fraud and the Contractor may be subject to criminal prosecution. The Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act, 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 the City of Carlsbad seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney’s fees. The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026, 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference attached hereto as Exhibit C. w (Initial) 10. STATUS OF THE CONTRACTOR The Contractor shall perform the services provided for herein in Contractor’s own way as an independent contractor and in pursuit of Contractor’s independent calling, and not as an employee of the City. Contractor shall be under control of the City only as to the result to be accomplished, but shall consult with the City as provided for in the request for proposal. The persons used by the Contractor to provide services under this Print Date: May 9, 1997 10 rev. 4/l 9/96 agreement shall not be considered employees of the City for any purposes whatsoever. The Contractor is an independent contractor of the City. The payment made to the Contractor pursuant to the contract shall be the full and complete compensation to which the Contractor is entitled. The City shall not make any federal or state tax withholdings on behalf of the Contractor or his/her employees or subcontractors. The City shall not be required to pay any workers’ compensation insurance or unemployment contributions on behalf of the Contractor or his/her employees or subcontractors. The Contractor agrees to indemnify the City within 30 days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers’ compensation payment which the City may be required to make on behalf of the Contractor or any employee or subcontractor of the Contractor for work done under this agreement or such indemnification amount may be deducted by the City from any balance owing to the Contractor. 11. INTELLECTUAL PROPERTY INDEMNITY The Product shall at all times remain the property of TPG, except those portions of the Product, if any, that may have been licensed from a third party. TPG shall indemnify City from any claim that the Product infringes a valid patent, copyright or trade secret, provided that City promptly notifies TPG of any such claim and gives TPG sole authority to defend or settle any claim. In the event that such a patent, copyright or trade secret claim is brought against City, TPG reserves the option to procure for City Print Date: May 9, 1997 11 rev. 4/l 9196 the right to continue to use the Product or to replace the product with a non-infringing software product similar in function to the Product. 12. PROTECTION OF CONFIDENTIAL INFORMATION TPG and City acknowledges that they may gain access to proprietary and confidential information, materials and data relating to TPG and City, its affiliated companies, its customers and its suppliers. Said information shall be deemed “confidential information” hereunder. TPG and City agree to keep all such information, materials, and data confidential and to use reasonable efforts to have its officers, employees and agents comply with this confidentiality obligation. 13. RUN-TIME PROGRAM SUB-LICENSE If the “Product Includes An Embedded Run-Time Program”, in that event, City is granted a sub-license to use the run-time program in conjunction with the product on the number of computers specified on the Schedule at the Site(s). If City wishes to acquire a separate copy of the third party software program(s), TPG will make the information available to City to obtain such licenses directly from the vendor. 14. HOLD HARMLESS AGREEMENT Contractor agrees to indemnify and hold harmless the City of Carlsbad and its officers, officials, employees and volunteers from and against all claims, damages, losses any such suit or action brought against the City, its officers, officials, employees and volunteers. Contractor’s indemnification of City shall not be limited by any prior or subsequent declaration by the contractor. Print Date: May 9, 1997 12 rev. 4/I 9196 15. ASSIGNMENT OF CONTRACT The Contractor shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City. City shall not sell, assign, sublicense, or otherwise transfer the Product (or any portion thereof) or any rights under this Agreement to anyone without TPG’s prior written consent, which consent shall not be unreasonably withheld. Without limiting the generality of the foregoing, TPG may condition its consent to any proposed transfer upon the payment by City to TPG of a transfer fee specified by TPG. 16. SUBCONTRACTING If the Contractor shall subcontract any of the work to be performed under this contract by the Contractor, Contractor shall be fully responsible to the 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 contract shall create any contractual relationship between any subcontractor of Contractor and the City. The Contractor shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this contract applicable to Contractor’s work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. 17. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City to Print Date: May 9, 1997 13 rev. 4/l 9196 negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 18. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the City, either before, during or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor entitle the Contractor to any additional payment whatsoever under the terms of this contract. 19. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, “Hold Harmless Agreement,” all terms, conditions, and provisions hereof shall inure to and shall bind hereto, and each of their respective heirs, executors, administrators, assigns. each of the parties successors, and 20. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written above. 21. CONFLICT OF INTEREST The City has determined, using the guidelines of the Political Reform Act and the Print Date: May 9, 1997 14 rev. 4/l 9/96 City’s conflict of interest code, that the Contractor will not be required to file a conflict of interest statement as a requirement of this agreement. However, Contractor hereby acknowledges that Contractor has the legal responsibility for complying with the Political Reform Act and nothing in this agreement releases Contractor from this responsibility. 22. INSURANCE The Contractor shall obtain and maintain for the duration of the contract 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 work hereunder by the contractor, his agents, representatives, employees or subcontractors. Said insurance shall 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-Y and shall meet the City’s policy for insurance as stated in Resolution No. 91-403, attached hereto as Exhibit D. A. Coveraoes and Limits. Contractor shall maintain the types of coverages and minimum limits indicated herein, unless a lower amount is approved by the City Attorney or City Manager: 1. Comprehensive General Liability Insurance. $1 ,OOO,OOO combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits shall apply separately to the work under this contract or the general aggregate shall be twice the Print Date: May 9, 1997 15 rev. 4/l 9/96 required per occurrence limit. 2. Automobile Liability (if the use of an automobile is involved for contractor’s work for the City). $1 ,OOO,OOO combined single-limit per accident for bodily injury and property damage. 3. Workers’ Compensation and Employer’s Liability. Workers’ Compensation limits as required by the Labor Code of the State of California and Employer’s Liability limits of $1 ,OOO,OOO per accident for bodily injury. 4. Professional Liability. Errors and omissions liability appropriate to the contractor’s profession with limits of not less than $1 ,OOO,OOO per claim. B. Additional Provisions. Contractor shall ensure that the policies of insurance required under this agreement contain, or are endorsed to contain, the following provisions. 1. The City shall be named as an additional insured on all policies excluding Workers’ Compensation and Professional Liability. 2. The contractor shall furnish certificates of insurance to the City before commencement of work. 3. The contractor shall obtain occurrence coverage, excluding Professional Liability which shall be written as claims-made coverage. 4. This insurance shall be in force during the life of the agreement and any extension thereof and shall not be canceled without 30 days prior written notice to the City sent by certified mail. Print Date: May 9, 1997 16 rev. 4/I 9196 5. If the contractor fails to maintain any of the insurance coverages required herein, then the City will have the option to declare the contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order that the required coverages may be maintained. The contractor is responsible for any payments made by the City to obtain or maintain such insurance and the City may collect the same from the contractor or deduct the amount paid from any sums due the contractor under this agreement. 23. RESPONSIBLE PARTIES The name of the persons who are authorized to give written notices or to receive written notice on behalf of the City and on behalf of the Contractor in connection with the foregoing are as follows: For City: Title C I fy -rhwwA~~ Name 3kvves M. %ww-mJ Address lZO0 CfwLS~PO VILLf%(& ~&It Cp-12-LS(=Tl c8c s2000 For Contractor: Title Name Address 24. BUSINESS LICENSE l..Rw.h I+ FELrm-- 58% N~~=u-%IH? SbtTE3b~ Contractor shall obtain and maintain a City of Carlsbad Business License for the Print Date: May 9, 1997 17 rev. 4/l 9/96 duration of the contract. 25. ENTIRE AGREEMENT This agreement, together with Exhibits A, B, C, and D, embody the entire agreement and understanding between the parties relating to the subject matter hereof. Neither this agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. Validitv. TPG and City intend this Agreement to be a valid legal instrument, and no provision of this Agreement which shall be deemed unenforceable shall in any way invalidate any other provisions of this Agreement, all of which remain in full force and effect. The headings in this Agreement are intended for convenience or reference and shall not affect its interpretation. Executed by Contractor this 13 $11 day of flay V ,194i: CONTRACTOR: TPG S;c$Ttinr@ t I!?r,. (name of Contractor) By: h%h!?ii& - (sign here) UUSULA- I3 FFLBET CH2 Q/d %@+Q“l (print name/title) By* J/ @ (sign here) %t idO Ml R R ‘FIbTkt E L\1kZ. -?wsdsn?- (print name/title) Print Date: May 9, 1997 18 xI7dJ$ati~ rev. 4/l 9/96 I, . ., , CITY OF CARLSBAD, a municipal corporation of the State of California By: All-EST: aQd& 4. ALETHA L. RAUTENKRANZ City Clerk ok 63 1947 Date (Proper notarial acknowledgment of execution by Contractor must be attached.) (President or vice-president and secretary or assistant secretary must sign for corpora- tions. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney Print Date: May 9, 1997 19 rev. 4/l 9196 EXHIBIT A TPG SOFTWARE, INC. PRODUCT LICENSE AND SUPPORT LEASE TERMS AND CONDITIONS TERMS AND CONDITIONS 1. TPG grants Licensee a non-perpetual, non-exclusive, non-transferable license to License. use the Product for Licensee’s own applications on up to the number of computers (if Product is a single-copy) or number of work stations (if Product is a multi-user application) at the location(s) specified on the Schedule, (the “Site(s)“). 2. . m. Licensee acknowledges that it has no proprietary interest in the Software and further acknowledges that the Software belongs solely to TPG and that the Software constitutes a trade secret of TPG. The Software is copyrighted to TPG and is therefore protected by the United States copyright laws, and must be treated by Licensee as copyrighted material. Licensee shah not reverse engineer, disassemble or decompile any executable code of the Softsvare, including those portions of the Software which are the proprietary property of third parties. 3. General. (a) Arbitration. This Agreement and performance hereunder shall be construed according to the laws of the State of California, United States of America. (b) Notices. All notices provided for herein shall be given by Registered or Certified mail return receipt requested to the parties listed below. TPG Software, J.nc./Lease 2112197 Pl Billim Address: EXHIBITB PRODUCT LICENSE SCHEDULE Delivers Address: City of Carlsbad City of Carlsbad Office of the Treasurer Office of the Treasurer 1200 Carlsbad Village Drive 1200 Carlsbad Village Drive Carlsbad, CA 92008-1989 Carlsbad, CA 92008-1989 Attention: James M. Stanton Attention: Jane DeGiacomo Phone No. (619) 434-2869 Phone No. (619) 434-2869 Fax No. (619) 434-8164 Fax No. (619) 434-8164 Section 1 - PRODUCT, TERM & FEE SCHEDULE GENIUS 1 - Network version - processes up to 500 positions aud includes two workstation licenses. Option to renew on the aniversary date for two one year renewal periods at the same fee of $4,800 per year. Conversion - Number of Positions: 85 ea. Reconciliation - Number of days Installation - Number of days Training - Number of days 2 days 1 year $4,800.00 ::::::::::::::::::::::::::::::::::: .:.:.:.::::::::::::::::~;:g$ i::::::.:.:.:.:.:.:.: . . ../...,.,. Totals: 1 %4,800.00 mi= Conversion Fee Reconciliation Fee Jnstallation Fee Training Fee Total Cost Product includes an embedded run-time program for the report writer. Licensee can purchase the third party report writer, R&R Report Writer directly from Concentric Data. TPG is not a distributor of the uroduct 1 Sales Contact: Gory Sokoloskr TPG Software, Inc./lease 2112197 P2 Section 2 - LICENSEE AND COMPUTER INFORMATION (Complete One Form Per Location) (Check One Box Per Row) (Make and Model) (Check One Box Per Row) Standalone Server .,........................., ..t... . . . IWorkstation~ WIN 95 OS/2 ,. ,.,.C . . . . . .._i........,...,.,.......,.,. :.,... ..,.. ._.....,.....l n.. ._. . . . . . . . . . . . . . . . . . . ,.,.,., ..v,...,./ .A.... . . . 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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That, except as expressly provided by law or bid specifications to the contrary, insurance or surety companies securing or insuring any obligation or risk under an insurance policy or surety bond of which the City is a beneficiary or an additional insured shall meet the following minimum standards: a. The company shall be authorized to conduct the business of insurance of a type required by the transaction in the State of California as evidenced by listing in the offtcial publication of the Department of Insurance of the State of California. For liability insurance, the City may accept a surplus line carrier provided the City is provided with a copy, of a surplus line broker affidavit as shown in Exhibit A attached hereto. Any surplus line carrier must meet the rating limitations included in Paragraph b below. b. The company shall have a rating in the latest available s e “Best’s Rating Guide” of “A-” or better and a financial size of $10 million (currently class V) or better. 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 ia 19 20 21 22 23 24 25 26 27 28 C. If a company is not listed by the State Insurance Commissioner in the official publication of the Department of Insurance, is not rated by Best’s or does not possess sufficient years of experience to be rated, or if the small size of the insurance or surety obligation or other risk factors justify a lessor standard, the City Attorney and the City Manager may approve such company only if it produces satisfactory evidence that its financial responsibility and performance capability within the State of California is sufficient to insure or secure adequately the subject risk or obligation. The City may elect to contract for the services of an insurance consultant, at the expense of the person asking to use an insurance company not meeting the standards listed in Paragraphs 2a and/or 2b above, to provide a financial responsibility and performance capability analysis and to provide recommendations to the City thereon. 3. Contractors, builders, subdividers and other persons doing business with the City who are required to provide automobile insurance shall provide a policy from a company that meets the above standards and that covers any vehicle used in the performance of the contract whether on-site or off-site, whether owned, leased, non-owned or hired, and, whether scheduled or non- scheduled. The automobile insurance certificate must state the coverage is for “any auto” and cannot be limited in any manner. /// /I/ /// /// /// /// /// - /// 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Contractors, builders, subdividers and other persons are required to provide proof of workers’ compensation insurance. A workers’ compensation insurance company is exempt from the City’s requirement for a Best’s Rating of A-:V, however, it must meet the standards listed in Paragraph 2a above. The City will accept workers’ compensation insurance policies written by the State Compensation Insurance Fund as meeting this requirement. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California on the 17th day of December a 1991, by the following vote, to wit: AYES: Council Members Lewis, kulchin, Larson, Stanton and Nygaard NOES: None ABSENT: None ATTEST: ALETHA L. RAUTENKRANZ, City Clerk . ;.’ : *- . l - CITY OF CARLSBAD SURPLUS LINE BROKER AFFIDAVIT Broker Name: Address: City/State/Zip: Date: - Project Name: Type of Insurance: is the Broker of Record for (“Contractor”) who is required to provide insurance under the specifications of the above contract. I further certify that as Broker of Record for Contractor, I have contacted the insurance companies listed below, all of whom mdet the City’s requirements included in Resolution No. and all of whom have refused to w-rite the required policy due to the type of risk involved. I certify that Insurance Carrier: Name of Contact: Address: Date: Reason for Refusal: Best’s Rating Listed by State Insurance Commissioner (Yes/No) Insurance Carrier: Name of Contact: Address: Date: Reason for Refusal: . . Best’s Rating * Listed by State Insurance Commissioner (Yes/No) -I’ _ : I,) I . . . - *I ’ . . ‘\ 1 Insurance Carrier: Name of Contact: Address: Date: Reason for Refusal: Best’s Rating Listed by State Insurance Commissioner (Yes/No) Contractor is requesting that the City accept company who is a su.x@us line carrier having an A-:V or better rating in the most recent issue of Best’s Rating Guide and who has an office within the State of California at the following address in order to effect service of process. Name of Surplus Line Carrier: Address: f City/State/zip: Address to effect Service of Process within the State of California. Name: Address: City/State/Zip: I certify under penalty of perjury that the foregoing facts are true and correct. Dated: Signed: Broker of Record . , - . . . *. ‘. ‘I Sections: 3.32.010 3.32.020 3.32.025 3.32.026 3.32.027 3.32.028 3.32.030 332.040 Chapter 3.32 CLAIMS AND DEMANDS* Payment of demands. Ratification of payment of demands. Submitting false claims- Monetary penalties. ‘Disqualification of irresponsible contractors-Effect of disquallflcation. Conduct required of responsible contractors. Procedures for disqualification of irresponsible contractors. Refunds. Claims for damage. * For statutory pm&ions rcqhting the presentment of demands against a city, see Gov. Code gg 37201 - 37205. Prior ordimna history: Ords. 1005.1005A and 1184. 1 332.010 Payment of demands. Demands, before payment, shall be processed in accordance with the following procedure: (1) Demands other than payroll demands shall, before payment, be duly certified: (a) By the department head for whom the work was performed; (b) By the fmance director that such demands conform to the budgetary allowances set forth by the city council. (2) Payroll demands shall, before payment, be duly certified as follows: (a) The department heads shall certify or ap- prove departmental attendance or payroll records for employees in their departments. The finance director shall certify attendance or payroll records for other officers and employees. (3) After demands have been certified in accor- dance with the foregoing, the finance director shall prepare warrants upon funds of the city as autho- rized by the city council in appropriate budgetary and salary resolutions. For other than payroll war- - A EXHIBIT C 3.32.010 rants, the finance director shall indicate on each warrant the fund from which such warrant demands are to be paid and the purpose for which such war- rant is issued. The finance director shall then trans- mit the prepared warrants to the city treasurer and the mayor for signature. The signature of the mayor and the treasurer may be affixed by a stamped fac- -simile of their signature by an author&d representa- tive. (Ord. 1294 0 1, 1987; Ord. 1215 6 2 (part), 1979) 332.020 Ratification of payment of demands. Warrants and payroll checks on checks drawn in payment of demands or payroll obligations certified or approved by the finance director as conforming to the city’s budget as adopted or amended by coun- cil shall be presented to the city council in the form of an audited comprehensive annual fmancial report. (Ord: 1294 0 2, 1986: Ord. 1215 0 2 (part), 1979) 332.025 Submitting false claims- Monetary penalties. (a) Any contractor, subcontractor or consultant who commits any of the following acts shall be liable to the city for three times the amount of dam- ages which the city sustains because of the act of that contractor, subcontractor or consultant. A con- tractor, subcontractor or consultant who commits any of the following acts shall also be liable to the city for the costs, including attorney’s fees, of a civil action brought to recover any of those penalties or damages, and may be liable to the city for a civil penalty of up to ten thousand dollars for each false claim: * (1) Knowingly presents or causes to be presented to an officer or employee of the city a false claim or request for payment or approval; (2) Knowingly makes, uses or causes to be made or used a false record or statement to get a false claim paid or approved by the city; (3) Conspires to defraud the city by getting a false claim allowed or paid by the city; (4) Knowingly makes, uses or causes to be made or used a false record or statement to conceal, avoid 105 (~blld 4-W) or decrease an obligation to pay or transmit money or property to the city; (5) Is a beneficiary of an inadvertent submission of a false claim to the city, subsequently discovers the falsity of the claim, and fails to disclose the false claim to the city within a reasonable time after discovery of the false claim. (b) This section does not apply to any controver- sy involving an amount of less than five hundred dollars in value. For purposes of this subsection, “controversy” means any one or more false claims submitted by the same contractor, subcontractor or consultant in violation of this section. (c) Every contract performed at the expense of the city, or the costs of which are paid for out of monies deposited in the treasury of said city, wheth- er directly awarded or indirectly by or under sub- contract, subpartnership, day labor, station work, piece work, or any other arrangement whatsoever, shall contain a clause reciting the provisions of subsection (a) of this section. (d) Liability under this section shall be joint and severable for any act committed by two or more persons. (e) For purposes of this section, the terms “con- tractor” and “subcontractor” shall have the same definitions as found in Section 4113 of the Public Contract Code. The term “consultant” shall be broadly defined to include any person or entity that provides services to the city. (f) For purposes of this section, “claim” includes any request or demand for money, property or ser- vices made to any employee, officer or agent of the city, or to any contractor, subcontractor, grantee or other recipient, whether under contract or not, if any portion of the money, property or services requested or demanded issue’d from, or was provided by, the city. (g) For purposes of this section, “knowingly” means that a contractor, subcontractor or consultant, with respect to information, does any of the follow- ing: (I) Has actual knowledge of the information; (2) Acts in deliberate ignorance of the truth or falsity of the information; (3). Acts in reckless disregard of the truth or falsi- ty of the information. Proof of specific intent is not required and reliance on the claim by the city is also not required. (Ord. NS-3 13 6 1, 1995) 332.026 Disqualifkation of irrwponsl%le contractors-Effect of d&pIlfiCatiOll. (a) Any contractor or consultant who fails to comply with the terms of its contract with the city, or contractor, subcontractor or consultant who vio- lates any provision in Section 3.32.025, or who fails to abide by any rules and/or regulations adopted pursuant to this chapter, may be declared an irre- sponsible bidder by the city manager for the public work or improvement at issue. Upon such determi- nation, the contractor, subcontractor or consultant (or any other entity with substantially the same officers, directors, owners or principals) shall not be permitted to act as a contractor, subcontractor or consultant on any public work or improvement for the city for a period of up to five years as deter- mined by the city manager. The contract of any such person or entity may, at the option of the city I manager, be canceled and in the event of such can- cellation, no recovery shall be had thereon by the contractor, subcontractor or consultant. (b) In addition to all other remedies permitted by law, the city council may, upon the recommendation of the city manager and upon advice of the city attorney, by resolution, declare a bidder or contrac- tor ineligible to bid on city procurement and public works contracts based upon any debarment of the contractor, subcontractor or consultant by another governmental agency, for the debarment period designated by the other agency. (Ord. NS-342 $0 1, * 2, 1996; Ord. NS-313 0 2, 1995) 332.027 Conduct required of responsible contractors. The covenant of good faith and fair dealing is contained in every city contract, and contractors, subcontractors and consultants shall at all times deal in good faith with the city and shall submit claims, requests for equitable adjustments, requests for t (cadsbad 4-96) 106 change orders, requests for contract modifications or requests of any kind seeking increased compensa- tion on a city contract only upon a good faith, hon- est evaluation of the underlying circumstances and a good faith, honest calculation of the amount sought. Violation of this section subjects the con- tractor, subcontractor or consultant to the penalties set forth in this chapter, including disqualification. The act of knowingly submitting a false, untrue or misleading claim, request for equitable adjustment, 3.32.027 106.1 (cdbulc%) . * - ,. e . - \ request for contract modification, request for change order or request of any kind seeking increased com- pensation is sufficient of itself to subject the con- tractor, subcontractor or consultant to the penalties stated in this chapter, regardless of the city’s reli- ance on, or response to, the submission. (Ord. NS- 313 0 3, 1995) 332.028 Procedures for disqualification of irresponsible contractors. (a) When charges are brought pursuant to Section 3.32.025, 3.32.026 or 3.32.027 of this chapter, the contractor, subcontractor or consultant shall be given notice of the charges and of all evidence supporting such charges. The contractor, subcontractor or con- sultant or its attorney shall be entitled to offer rebut- tal evidence and any other evidence in support of its position. The city manager shall conduct a hearing within thirty days after receipt of the notice by the contractor, subcontractor or consultant, where the charges and all evidence shall be presented. In the alternative, the city manager may appoint a hearing officer to conduct such a hearing and make written findings of fact to be submitted to the city manager who shall render the final decision. The city attor- ney may, in its discretion, appoint outside counsel to prosecute the charges. (b) A decision of the city manager making a finding of irresponsibility is final and effective’ten calendar days after the hearing, unless within such ten-day period the contractor, subcontractor or con- sultant files a written appeal with the city council. The written appeal shall specifically state the rea- son(s) for the appeal and the manner in which the decision of the city manager is in error. Fees for filing an appeal under this section shall be estab- lished by resolution of the city council. (c) The decision of the city manager shall be affirmed by ,the city council unless the appellant shows by a preponderance of the evidence that the decision of the city manager is in error or inconsis- tent with state iaw. The appeal hearing shall be held within thirty days after the date of filing the appeal. Within ten days following the conclusion of the hearing, the city council shall render its decision on 3.32.027 the appeal. The decision of the city council is final. (Ord. NS-313 8 4, 1995) 332.030 Refunds. (a) When not otherwise prohibited by law, the city manager may author& a refund in an amount not to exceed one thousand dollars and the city council may author& a refund for an amount in excess of one thousand dollars of all or part of any fee collected pursuant to the municipal code in accordance with the procedures of this section. (b) A written request for refund, signed by the person paying the fee or by the department head of the requesting department shall be filed with the finance director setting forth the facts and reasons which justify the request. (c) The finance director shall investigate the re- quest and forward the request and his mcommen- dation to the city manager. (d) The city manager, in an amount not to ex- ceed one thousand dollars, or the city council, for an amount in excess of one thousand dollars, may grant the request in whole or in part if they find that: (1) The fee was paid under a mistake of law or fact; or (2) The consideration for which the fee was paid has not been received and the city has no moral claim to the money; or (3) It is inappropriate and inequitable to retain the fee, which in good conscience, equity and justice should be returned; or (4) A refund is necessary to prevent an extreme hardship upon the person paying the fee for which such person is not responsible. - (e) When the request for refund is based on the withdrawal of an application for a development project requiring a fee for city services, including, but not limited to, checking of improvement plans, review of tentative tract maps, site development plans, conditional use permits, or other similar zon- ing permits and building permits. The city shall retain a portion of the application fee as compensa- tion for staff time invested in the acceptance and processing functions through the time the refund 10th chbad 7-93 r 3 . . j3..3+0 was requested. The appropriate department head shall provide the finance director with an estimate of the number of hours spent in processing any such application or permit as the basis for the city’s retention. The city manager may then authorize the refund of any remaining balance. (f) Upon receipt of proper authorization, the fi- nance director shall make the refund. (Ord. 1284 0 1, 1985: Ord. 1215 0 2 (part), 1979) 3.32.040 CIaims- for damage. (a) No claim for damages against the city shall ever be allowed or paid unless there has been first filed with the city clerk a claim therefor within the time periods required by subsection (b) of this sec- tion. All such claims for damages shall be first verified by the claimant before an officer author&d to administer oaths. (b) A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be filed not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be filed not later than one year after the accrual of the cause of action. (Ord. NS-150 6 1,199l: Ord. 1296 8 5, 1987: Ord. 1215 0 2 (part), 1979) (cedhad 7-9s) 106b f $ THIS BINDEA IS A TEMPORARY INSURANCE CONTRACT, SUBJECT TO THE CONDITIONS SHOWN ON THE REVERSE SIDEOFTHIS FORM. PBODUCER IL'-j,oN,E, CH,. 713-780-8033 COMPANY BINDER + ExPmATlON TINE TIME 12:Ol I I 1 I I Langham, Langstdn & byer 2400 Augusta #422 Houston, TX 77057 The Travelers Indemnity IEEUB176Y6175971 DATE ffFEFE 04/01/97 THIS BINDER IS ISSUED TO EXTEND COVERAQE IN THE ABOVE NAMED COMPANY CODE: 5000 SUB CODE: PER EXPIRING POLICY y. AQEN dRID-. 9577 DESCRlFllON OF OPERAllONS/VEHlCLES/PFiOPERlY@dudfng Lomtkm) INSURED TPG Software Inc Loc#l: 5858 Westheimer Suite 300 , 5858 Westheimer Suite 300 Houston, TX 77057 Houston, TX 77057 CUIMS MADE AUTOYOBlLE LlABlLilY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON-OWNED AUTOS COVEJtAGE/FORYS AYOUNT DEDUCllBLE COINS% QARABE LlABILllV k ANY AUTO EXCESB LIABILDY b UMBRELLA FORM EACH OCCURRENCE Is AGGREGATE 0 1 OTHERTHANUMBRELLAFORM RETRO DATE FOR CLAIMS MADE: SELF-INSURED RETENTION (s x STATUTORY LIMITS :~::~~~ .:.:.~:~.:.:.:~.:.~~)~.~..:. ‘>.>. <.:<<.$:ww&‘.:~ ,:q. ..q$q..&..g ., I.< ,, .,_ : -I;ER’s~~PENSATION EXECUTIVE OFFICERS EXCLUDED EACH ACCIDENT *100,000 ENPLOVIWS UABILllY DISEASE-POLICY LIMIT $500,000 DISEASE - EACH EMPLOYEC $10 0 , 0 0 0 ADDITIONAL INSURED CONDITIONS This Company binds the kind(s) of insurance stipulated on the reverse side. The Insurance is subject to the terms, conditions snd limitations of the policy(ies) in current use by the Company. This binder may be cancelled by the Insured by surrender of this binder or by written notice to the Company stating when cancellation will be effective. Thii binder may be cancelled by the Company by notice to the Insured in accordance with the policy conditions. This binder is cancelled when replaced by a policy. lf this binder is not replaced by a policy, the Company is entitled to charge a premium for the binder according to the Rules and Pates in use by the Company. Applicable In Callfornla When this form is used to provide insurance in the amount of one million dollars ($i,QOQ,WO) or more, the title of the form $ changed from “Insuranc e BIIBP to “Cover Note”. Applicable In De&ware The mortgagee or Obtigee of any mortgage or other instrument given for the purpose of creating a’ lien on real property shall accept as evidence of insurance a written binder issued by an authorized insurer or its agent if the binder includes or is accompanied by: the name and address of the borrower; the name and address of the lender as loss payee; a description of the insured real property: a provision that the binder may not be canceled within the term of the binder unless the lender and the insured borrower receive written notice of the cancel- lation at least ten (10) days prior to the cancellation; except in the case of a renewal of a policy subsequent to the closing of the loan, a paid receipt of the full amount of the applicable premium, and the amount of insurance coverage. chapter 21 Tiie 25 Paragraph 211 Q Applksble in Nevada Any person who refuses to accept a binder which provides coverage of less than $1,WQ,QOQ.W when proof is required: (A) Shall be fvled not more than $5OQ.Q0, and (B) is liable to the party presenting the binder as proof of insurance for actual damages sustained therefrom. I-HIS BINDER IS A TEMWFlARY INSURANCE CONTRACT, SUBJECT TO THE CONDITIONS SHOWN ON THE REYEFISE SIDE OF THIS FORM. *I00lJCER PHONE ,,713-780-8033 Langham, LangstoiN& Dyer COMPANY BINDER + Lloyds MPLOO845700 2400 Augusta #422 EFFECTWE DlPlRATlON DATE TIYE -DYE Houston, TX 77057 04/16/97 12:Ol ^,' 05/16/97 I 3ooE:114 SUB CODE ~GENCW D 9577 NSLIRED TPG Software Inc ~~k”C~,“R:,,“,,,,,T~~~B~~~~~~THEABOVE NAMED COMPANY OESCfUlWON OF OPEFlAnONS/VEHICLE S/PROPEFllY(lnddbg Lmalkm) Professional Liability 5858 Westheimer Suite 300 HOUBtOn, TX 77057 TYPE OF INSURANCE ‘R-TY CAUSES OF LOSS 1 BASIC 0 BROAD( SPEC ~tzJY-;i-;~ MJToYoBILE LlABILlTY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS tilRED AUTOS NON-OWNED AUTOS COVERAGEJFORUS AYOUNT DEDUCllBLE COINS% woRKEws ~~PENBATlON EMPLDYEWS LlABlLrrY -CALDAYA=EDEDUCTIBLE J ALLVEHICLES U SCHEDULEDVEHICLES EACH OCCURRENCE s AGGREGATE s RETRO DATE FOR CLAIMS MADE: SELF-INSURED RETENTION S ST*TUTORY L,MITS .~;?p;” .~..,“:A:.:.:.~ :,:,,:\~$%;$p. - A..:&y~:,+.+ .‘.. * .<.0.6 * x g?<~&:$$<.& 4. .,....,, 7 . . . . 2 . EACH ACCIDENT s DISEASE - POLICY LIMIT S IDISEASE - EACH EMPLOYEEIS , LIABILITY SPEClAL PROFESSIONAI zz?l%PONS' COVERAGES MORTQAGEE ADDITIONAL INSURED LOAN # Limit of Liability (each claim including claim expense and in the aggregate): $l,ooo;ooo. Deductible (each claim including claiq expenses): $5,000. Any person who refuses to accept a binder whii provides coverage of less than $1,000,000.00 when prwf is required: (A) Shall be fined not more than $WO.OO, and (B) is liable to the party presenting the binder as proof of insurance for actual damages sustained therefrom. CONDITIONS This Company binds the kind(s) of insurance stipulated on the reverse side. The Insurance is subject to the terms, conditions and IimitaGons of the policy(ies) in current use by the Company. This binder may be cancelled by the Insured by surrender of this binder or by written notice to the Company stating when cancellation will be effective. This binder may bs cancelled by the Company by notice to the Insured in accordance with the policy conditii. This binder is cancelled when replaced by a policy. lf this bier is not replaced by a policy, the Company is entitled to charge a premium for the binder according to the Rules and Rates in use by the Company. Applkzable In Callfornla When thii form is ueed to provide insurance in the amount of one million dollars ($1,000,000) or more, the title of the form is changed from “Insurance Binder” to “Cover Note”. Applicable In Delaware The mortgagee or Obligee of any mortgage or other instrument given for the pu+ose of creating a lien on real property shall accept as evidence of insurance a written binder issued by an authorized insurer or its agent if the binder indudes or is accompanied by: the name and address of the borrower; the name and address of the lender as loss payee; a description of the insured real property; a provision that the binder may not be canceled within the term of me binder unless the lender and the insured borrower receive written notice of the cancel- lation at least ten (10) days prior to the cancellation; except in the case of a renewal of a policy subsequent to the dosing of the loan, a paid receipt of the full amount of the applicable premium, and the amount of Insurance coverage. Chapter 21 Tie 25 Paragraph 2119 Applktable In Nevada - - - VRITE IT - DON’T SA” \T! Date May 23 19 97 To File 0 Reply Wanted From Isabelle Paulsen ONo Reply Necessary On this date, Jane DeGiacomo, Treasurer's Office, received a copy of the agreement with TPG Software. Jane stated that she would forward a copy of the signed agreement to the consultant.