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HomeMy WebLinkAboutresolution.council.037-02 RESOLUTION # ~ (Series of 2002) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND SCHLUMBERGER/SEMA SETTING FORTH THE TERMS AND CONDITIONS REGARDING COMMUNICATION CONTRACT AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, and Schtumberger/Sema, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and Schlumberger/Sema regarding communication package, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: ~/~_.., //O~'-~ o~tfl~9 '~Z--- "l~Ie~'en"'Ka~n Kl~-"dm~d, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a tree and accurate copy of that resolution adopted by the Council of the City of Aspen, Colorado, at a ~~~ K lryn S: Koch, City kl rk SCHLUMBERGER Danyl, INC. Service Agreement THIS AGREEMENT, made this day of, between SCHLUMBERGER DANYL, INC. a Delaware Corporation ("Schlumberger~), and. Town of Aspen (Customer). WHEREAS, Schlumberger is engaged in the business of providing services and licensing certain Products as defined below; WHEREAS, Customer is engaged in the business of utilizing the services provided by Schlumberger; In consideration of the foregoing and the mutual promises of the parties as hereinafter made, Schlumberger and Customer agree as follows: 1.0 DEFINITIONS The following terms shall have the meanings specified below for purposes of this Agreement. 1.1 Services shall mean the services listed or described in Schedule A. 1.2 Licensed ProRrams shall mean the computer software and related materials made available by Schlumberger in conjunction with the use of the communication services provided, whether or not separately priced, and whether proprietary to Schlumberger or to a th 'rd party. 2.0 TERMS 2.1 Contract Time Commitment for the initial term shall be for a period of 36 months. A fee schedule for months 1-12 is described in Schedule A. Pricing for months 13-36 will be determined and agreed upon in writing by both parties on or before the commencement of the 13TM month of service as outlined in this agreement. 2.2 Cancellation. Orders accepted by Schlumberger may be canceled by Customer only with the written consent of Schlumberger (which consent Schlumberger may withhold at its sole discretion) and upon payment of reasonable cancellation charges (not to exceed fifteen percent (15%) of the annual contract value. Schlumberger DANYL Service Agreement - I 3.0 WARRANTY (a) Schlumberger warrants that each Service provided shall conform to Schlumberger's then-current specification and shall be free from defects in material and workmanship for the period of the contract service period. (b) Schlumberger makes no other warranties of any kind whatsoever, express or implied, to customer and/or customers end users, or any user of the Products or Licensed Programs; and ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY SCHLUMBERGER~ (c) The sole and exclusive remedy against Schlumberger for defects in material or workmanship in the Products and/or Licensed Programs, whether based upon warranty, contract or tort, including strict liability in tort and negligence, shall be to proceed under such warranty. (d) This warranty does not extend to Products or Licensed Programs that have been altered or repaired by personnel other than those employed by Schlumberger, nor does it extend to Products or Licensed Programs that have been subjected to misuse, abuse, neglect, vandalism, accident, misapplication, or improper installation. SCHLUMBERGER'S LIABILITY ARISING BY REASON OF SUPPLYING ANY PRODUCT OR LICENSED PROGRAM, OR ITS USE, SHALL IN NO EVENT EXCEED THE COST OF REPAIR OR REPLACEMENT OF SUCH PRODUCT OR LICENSED PROGRAM AND IN NO EVENT SHALL SCHLUMBERGER BE LIABLE TO CUSTOMER, TO ANY OF CUSTOMERS END USERS; OR TO ANY OTHER PERSON FOR ANY DAMAGES OR DELAY CAUSED BY DEFECTIVE MATERIAL OR WORKMANSHIP, INCLUDING, WITHOUT LIMITATION DAMAGES DUE TO PERSONAL INJURY OR PROPERTY DAMAGE, OR ANY SPECIAL INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUES OR PROFIT. (f) All descriptions of the Products, Services and/or Licensed Programs, and all specifications, samples, models, bulletins or similar materials used in connection with a particular sale are for the sole purpose of identifying the Products and/or Licensed Programs, and are in no event to be construed as express or implied warranties. 4.0 PAYMENT '~. Payments will be made month¥ during the term of this agreement, beginning with the first payment due in full thirty (30) days from the date of invoice for the first month. In the event of any amount payable being overdue and Customer fails to cure in 30-days, Schlumberger may without prejudice to any other rights, either suspend delivery, or service to Customer, ship any futura order COD, terminate this agreement and/or charge interest at the maximum rate allowed by law or turnover past due debt to collection agency or sue for payment; in such event Custom.er is liable for all costs associated with collection of this debt. No payment due to Schlumberger shall in any circumstances be offset against any sum owed to Customer. 5.0 SHIPMENTS 5.1 Shippin,q Dates/ Service Ori,qination Dates. After receipt and acceptance of an Order, Schlumberger shall inform Customer of likely shipping and/or origination of service dates. Schlumberger DANYL Service Agreement - 2 Schlumberger shall have the right to make partial shipments of Products and/or services or components ordered by Customer. Schlumberger intends generally to fulfill accepted orders from customers in the order of receipt, but Schlumberger reserves the right to allocate and adjust deliveries of available Products and/or services in any manner it deems appropriate. 5.2 Delay in Delivery. Schlumberger shall not be liable for any delay in delivery or for non- delivery, in whole or in part, when the reasons for the delay are beyond Schlumberger's reasonable control. No penalty clause of any kind in any specification or Order will be effective against Schlumberger. 6.0 PROTECTION OF PROPRIETARY RIGHTS 6.'1 Confidentiality. Customer acknowledges that during the course of this Agreement, Customer may become privy to confidential and proprietary information of Schlumberger, whether disclosed in writing or obtained in any other manner, relating to research and development for new products and product enhancements, specifications and characteristics and other information specifically designated by Schlumberger to be confidential. Ail such information shall be deemed to be "Confidential Information" for the purposes of this Agreement. Customer acknowledges that all Confidential Information is and shall be the sole, exclusive and valuable property of Schlumberger and that any use of any of the Confidential Information by Customer shall be solely in connection with the performances of its obligations under this Agreement. 7.0 ARBITRATION 7.1 Arbitration. Any controversy or claim arising out of or relating to this Agreement (including the licenses granted hereunder), or the breach hereof, shall be settled by arbitration to be held in New York, New York, or such other place as the parties may mutually agree, in accordance with the commercial arbitration rules then in effect of the American Arbitration Association. The arbitration tribunal shall be formed of three arbitrators one to be appointed by each party and a third to be appointed by the first two. Judgment upon any award rendered by the arbitrators shall be final and binding on the parties and enforceable in any court of record of competent jurisdiction. The expenses of arbitration shall be borne among the parties to the arbitration as determined by the arbitrators, provided that each party shall pay for and bear the cost of its own experts, evidence and legal counsel. 8.0 MISCELLANEOUS 8.1 Entire ARreement. This Agreement sets forth the entire agreement between Schlumberger and Customer concerning the subject matter hereof and supersedes all other agreements, arrangements and understandings, written or oral, concerning such subject matter. No amendment or modification of this Agreement or any provision hereof shall be binding upon any party unless such amendment or modification shall be in writing and signed by an officer of each of the parties. 8.2 Interpretation and construction. This Agreement and all questions of its interpretation, performance, enforcement and the rights and remedies of the parties hereunder Schlumberger DANYL Service Agreement - 3 shall be determined in accordance with the laws of the state of New Jemey. 8.3 Notices. All notices to be given hereunder shall be in writing, and shall be effective when sent by first class air mail, postage prepaid, facsimile or electronic data system, or by telex, duly addressed to the address listed on the signature page hereof or to such other address as the addressee may have earlier identified in a proper notice to the other party. 8.4 Enforcement: Severability. The failure of either party to enforce at any time or for any period of time the provisions of this Agreement shall not be construed as a waiver of such provisions or the right of such party thereafter to enforce each and every provision contained herein. If any term, clause or provision contained in this Agreement is declared or held invalid by a court of competent jurisdiction, such declaration or holding shall not affect the validity of any other term, clause or provision contained herein. 8.5 Captions. Captions used herein are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement. 8.6 "Purchase" or "Sale", The terms "purchase" and "sale" are used herein in a generic sense. Notwithstanding other provisions to the contrary, any reference to the "purchase" or to the "sale" of software or other intellectual property shall be deemed by the parties to affect only a non-exclusive license to the software or other intellectual property. IN WITNESS WHEREOF, the parties to this Agreement have duly executed it as of the day and year first above written. Company: Customer: Schlumberger DANYL, Inc. Town of Aspen 1601 Schlumberger Drive 130 South Galena Moorestown, NJ 08057 Aspen, CO 81611 Phone: (609) 234-8000 Phone: (970) 920-7474 Fax: (609) 234-7178 Fax: (970) 920-7473 Date Signed: /~//~¢,.~z..~ 0 ! U Schlumberger DANYL Service Agreement - 4 ATTACHMENT Schedule A PRICE / SERVICE DESCRIPTION Schlumberger shall provide the following services for a monthly fee equal to 9.4% of all actual credit card transactions that occur during each month of during the first year of this Agreement, up to an annual limit of $50,000. After this limit is reached Schlumberger would retain 5.0% of all credit card sales. All coin revenues would be retained by the City of Aspen. Parkfolio Services: '1) Standard Communication and System Maintenance Cellular connection for each meter. 2) Parkfolio-LIVE Remote alarm monitoring of the current status of individual meters. Customer will be able to obtain status via Internet web-site address. 3) Parkfolio-Reports '1) Alarm Report 2) Collection Report 3) Transaction by Day Report 4) Parkfolio- Credit Card Collection Remote credit card collection on a selected period or schedule. Schlumberger's service collects and transfers credit data and transfers to customer for processing~ Blacklist updates are available on a weekly basis. '- Schlumberger DANYL Service Agreement - 5