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HomeMy WebLinkAboutresolution.council.056-96 - e e RESOLUTION NO. 5"6 Series of 1996 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COWRAOO, APPROVING A PROFESSIONAL SERVICE AGREEMENT BETWEEN CARDINAL TRACKING INC. AND THE CITY OF ASPEN, COWRADO FOR THE LEASE AND INSTALLATION OF AN AUTOMATED TICKET MANAGEMENT SYSTEM AND RELATED SUPPLIES, AND AUTHORIZING THE CITY MANAGER TO EXECl.1TE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COWRAOO. WHEREAS, there has.been submitted to the City Council a professional service agreement between Cardinal Tracking Inc. and the City of Aspen, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves that professional services agreement between Cardinal Tracking Inc. and the City of Aspen, 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 agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the J <:;-day of 0 ~, 1996. ~/~~ John S. Bennett, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing! is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. ~ )/~~ Kathryn S. Koch, City Clerk i'~" - - e ~ 'OJ Rental Agreement Terms and Conditions 1. This RENTAL AGREEMENT made this Ir day of <7 # 19';'1., by and between Cardinal Tracking, Inc., a Texas corporation doing business at 3205 Justin Roacl, Flower Mound, Texas 75028, (OWNER) and The City of Aspen, doing business at 103 South Galena Street, Aspen, Colorado 81611 (RENTER), defines rental conditions from OWNER the EQUIPMENT set forth in Appendix "A". 2. TERM: This RENTAL AGREEMENT is for the term set forth in appendix "B" and the rights and obligations of the parties shall commence upon delivery of the EQUIPMENT. This RENTAL AGREEMENT is non-cancelable for the full term hereof, except as provided herein and shall not be cancelable for convenience. Notwithstanding any dispute between RENTER and OWNER, RENTER shall make all payments when due and shall not withhold any payments pending final solution of such dispute. RENTER hereby covenants to take such action as is necessary under the laws applicable to RENTER to budget for and include and maintain funds sufficient and available to discharge its obligations to meet all payments due during the Rental Term pursuant to provisions of this RENTAL AGREEMENT. 3. RENEWAL: This agreement is for the term stated in appendix "B", but shall not exceed five years. At the end of said term RENTER may either purchase the equipment outlined in appendix "A" or elect to lease/rent said equipment under the terms of a separate agreement. In either case this agreement becomes null and void upon expiration of the term stated in appendix "B". 4. PAYMENT: RENTER agrees to pay OWNER RENTAL AGREEMENT payments as ~et forth in Appendix "C". OWNER shall bill RENTER by invoice for RENTAL AGREEMENT payments at RENTER'S address set forth herein. RENTER shall remit payment to OWNER at the address set forth on the invoice within 1 0 days of receipt of said invoice. 5. MERGER CLAUSE: RENTER acknowledged that the EQUIPMENT is of size, design, capacity, and manufacture selected by RENTER. ANY ST ATEJ\1ENTS MADE BY THE SUPPLlER AND NOT OUTLINED IN ATTACHED MAINTENANCE CONTRACT OF THE EQUIPMENT DO NOT CONSTITUTE WARRANTIES, SHALL NOT BE RELlED ON BY THE RENTER, AND ARE NOT INCORPORATED INTO TillS RENTAL AGREEMENT. TillS RENTAL AGREEMENT CONSTITUTES THE FINAL EXPRESSION OF THE PARTIES' AGREEMENT AND UNDERSTANDING AND IS A COMPLETE AND EXHAUSTIVE STATEMENT. 6. WARRANTIES: OWNER HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION, WARRANTY, PROMISE, OR COVENANT, EXPRESS OR IJ\1PLIED, AS TO THE CONDITION, QUALITY, DURABILITY, CAPABILITY, FUNCTION, PERFORMANCE, OR SUITABILITY OF THE EQUIPMENT, ITS MERCHANTABILITY, OR ITS FITNESS FOR ANY PARTICULAR PURPOSE OTHER TUAN THAT STATED IN ATTACHED MAlNTENANCE AGREEMENT. 17. The parties agree that as the Renter selected the equipment and the supplier of the equipment, no defect, either patent or latent, shall relieve Renter of its obligation hereunder. Renter agrees that owner shall not be liable for specific performance or any liability, loss, damage, including consequential and incidental damages, arising out of Renter's use of the equipment, or supplier's failure to timely deliver the equipment. Owners sole responsibility is to the T/!!7t1s and Conditions afRental 10/4/96 e - '. e replacement or refund of defective products and does not encompass any other damages, including but not limited to loss of profit, special incidental, consequential, or similar clai1TIs. Owner will take any steps reasonably within its power to make available to the Renter any manufacturers or suppliers warranty applicable to the equipment. 8. AUTHORlTY: RENTER is a public body corporate and politic duly organized and existing under the Constitution and Laws of the State set forth herein. RENTER will do, or cause to be done, all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. RENTER is authorized under the Constitution and Laws of the State set forth herein and its Charter to enter into this AGREEMENT and the transaction contemplated hereby and to perform all of its obligations hereunder. RENTER has been !duly authorized to execute and deliver this AGREEMENT and the person executing this RENTAL AGREEMENT on behalf of the RENTER warrants that he or she possess the requisite and necessary authority and authorization to execute said RENTAL AGREEMENT on behalf of the RENTER. 9. ESSENTIALITY: During the term of this AGREEMENT, the EQUIPMENT will be us~d only for the purpose of performing one or more governmental or proprietary functions of RENTER consistent with the permissible scope of RENTER'S authority. 10. EXPENSE: OWNER and RENTER understand and intend that the obligation of the RENTER to make payments hereunder shall constitute a current expense of RENTER and shall not in any way be construed to be a debt of RENTER in contravention of any appli~able constitutional or statutory limitation requirements conceming the creation of indebtedness by RENTER, nor shall anything contained herein constitute a pledge of the general tax revenue, funds or monies of RENTER and any provision herein dire,ctly or indirectly construed to, so provide such be deemed null or void. 11. ASSIGNMENT: RENTER shall not assign, sublet, lend, transfer, pledge or hypothecate this RENTAL AGREEMENT or the EQUIPMENT. OWNER may not assign, transfer, pledge or sell OWNER'S interest in this RENTAL AGREEMENT or the EQUIPMENT. 12. INDEMNITY: RENTER shall, to the full extent permitted by law, indemnify OWNER against, and hold OWNER harmless from, any and all claims, actions, suits, proceedings; costs, expenses, damages and liabilities, including reasonable attorney's fees, arising out of, connected with, or resulting from this RENTAL AGREEMENT or the EQUIPMENT. 13. ENJOYMENT OF RENTAL AGREEMENT EQUIPMENT: OWNER hereby covenan~s to provide RENTER during the RENTAL AGREEMENT Term with quiet use and enjoynlent of the rented EQUIPMENT, and RENTER shall during RENTAL AGREEMENT Term peaceably and quietly have and hold and enjoy rented EQUIPMENT, without trouble or hindrance from OWNER, except as expressly set forth in this RENTAL AGREEMENT. 14. DEFAULT: RENTER shall be in default of this RENTAL AGREEMENT if RENTER (a) fails to make any RENTAL AGREEMENT payment within ten (10) days after the date the payment is due (b) fails to allow OWNER to inspect the EQUIPMENT during regular business hours (c) fails to maintain the EQUIPMENT or maintain service contract. 15. REMEDIES: The parties agree that RENTER'S default under paragraph 14 is primary default and as such OWNER may upon written notice to RENTER, demand RENTER to cure the default. If RENTER fails to cure the default within thirty (30) days of the notice, then OWNER may (1) declare the entire amount of remaining RENTAL AGREEMENT payments, including arrears, due and immediately payable, and (2) take peaceful possession of the EQUIPMENT with or without court order. No right or remedy herein conferred upon or Terms and Conditions a/Rental 10/4/96 e e e reserved to OWNER is exclusive of any other right or remedy hereunder or allowed by la~. Each right and remedy shall be cumulative and may be exercised singly or in combination. 16. INSURANCE: RENTER hereby certifies that it is self-insured or at its own expense RENTER shall cause casualty insurance to be carried and maintained with respect to the EQUIPMENT and shall carry public liability and property damage insurance sufficient to protect the full value of the EQUIPMENT. All insurance proceeds from casualty losses shall be payable solely to OWNER, subject to the terms of this RENTAL AGREEMENT. Renter shall carry Workman's Compensation insurance or self-insurance covering all employees working on, in, or near or about the EQUIPMENT and shall require any other person or entity working on, in, near or about the EQUIPMENT to carry such coverage. 17. TITLE: Title to the EQUIPMENT and any and all additions, repairs, replacements or modifications thereto shall be in the name of the OWNER. RENTER shall have no right, I title or interest in the EQUIPMENT or any additions, repairs, replacements or modifications thereto except upon the completion of the RENTAL Term Payments and payment ofthe Purchase Option. 18. NONAPPROPRlATlON: RENTER is obligated only to pay periodic payments or monthly installments under the agreement as may lawfully be made from (a) funds budgeted and appropriated for that purpose during such municipality's current budget year or (b) funds made available from any lawfully operated revenue producing source. Upon the occurrence of this event OWNER may request from RENTER, an opinion of its counsel to this effect together with appropriate documentation, providing sufficient proof of same, if, within Ol~e (1) year after termination under this caption, funds are appropriated to purchase, lease or rent equipment performing functions similar to those performed by the EQUIPMENT, then Wshall be conclusively deemed that monies have been appropriated for the continuance of this RENTAL AGREEMENT. 19. USE OF EQUIPMENT: RENTER shall use the EQUIPMENT at the location set forth herein. RENTER shall use the EQUIPMENT in a careful and proper manner and shall comply with all statutes, rules, ordinances, licensing requirements, laws, and regulations relating to the possession, use, maintenance, and repair of such EQUIPMENT. RENTER shall use the EQUIPMENT in compliance with the Manufacturer's or Supplier's suggested guidelines. . 20. REPAIRS: RENTER, at its own expense, shall keep the EQUIPMENT in good repair, condition, and working order and to that end, maintain EQUIPMENT in accordance wit\! terms outlined in maintenance agreement. 21. NET AGREEMENT: RENTER intends the Payments in this RENTAL AGREEMENT to be net to the OWNER. RENTER shall comply with all laws and shall pay all taxes, if any, including but not limited to sales and use taxes, excise taxes, personal property taxes and assessments, licenses, registration fees, freight and transportation charges and any simila~ charges imposed on the ownership, possession, or use of the EQUIPMENT during the term of this RENTAL AGREEMENT. 22. SECURITY AGREEMENT: To secure the payment of the foregoing RENTAL Payments, and any and all liabilities, direct, indirect, absolute, contingent, due or to become due, now existing or hereafter arising of the undersigned to the OWNER, the undersigned RENTER grants to the OWNER as the Secured Party a security interest covering all of the propert'y included in EQUIPMENT described above and all additions, attachments, accessions and substitutions thereto or therefore including future or other obligations to pay and covers 'after T e/771S and Conditions of Rental 10/4/96 e - e acquired EQUIPMENT to be maintained at the address ofthe RENTER RENTER her~by grants to the OWNER the right to file one or more financing statements (UCel) onlywi,th the knowledge and written consent of RENTER. 23. NON-WAlVER: OWNER'S failure to require strict performance by RENTER of any of the provisions of this RENTAL AGREEMENT shall not be a waiver thereof 24. SEVERABILITY: Ifany provision of this RENTAL AGREEMENT be declared invalid, such provision shall be inapplicable and deemed omitted, but the remaining provisions, including the default and remedy provisions, shall remain in force and effect. 25. MODIFICATION: This RENTAL AGREEMENT shall not be modified or amencled ex~ept by written agreement executed by the parties herein. 26. Governing Law: All terms and conditions shall be governed by the laws of the state of Colorado, county of Pitkin, irrespective of the fact that one or more of the parties now ;$ or may hereafter become a resident of a different state. Acceptance: Renter has read and is subject to the conditions set forth within this rental agreement. RENTER: In witness whereof renter hereby executed this rental agreement Organization: City of Aspen Address: City, St., Zip: Authorized Agent: Title: Signature: Date OWNER: F or the purpose of filing as a financing statement, this rental agreement is accepted. Organization: Address: City, St., Zip: Authorized Agent: Title: Signature: Date Cardinal Tracking. Inc. 3205 Justin Road Flower Mound. Texas 75028 Kevin A. Ta I President ~04- II>-'r'-f~ Temls and Condition~ afRental 10/4/96 e e e Appendix A Equipment Listing TickeTrak Parking Management System, Hardware: . Eight (8) TickeTrak TTField Units (EHT-30) - Serial # 1: - Serial # 2: - Serial #3: - Serial #4: - Serial #5: - Serial #6: - Serial #7: - Serial #8: . Eight (8) TickeTrak Communications/Charging Cradle (EHT-30) - Serial # 1: - Serial # 2: - Serial #3: - Serial #4: - Serial #5: - Serial #6: - Serial #7: - Serial #8: . Temls and Conditions afRental 10/4/96 . One (1) TTNet-8 Data Communications - - Serial # 1: . One (1) Thin Card Drive - Serial # 1: . Eight (8) 1MB RAM Card (EHT-30) - Serial # 1: - Serial # 2: - Serial # 3: - Serial #4: - Serial #5: - Serial #6: - - Serial #7: - Serial #8: . Three (3) Personal Computers - Serial # 1: - Serial # 2: '- - Serial #3: . One (1) 16 ppm Laser Printer - Serial # 1: . One 6 ppm Laser Printer - Serial # 1: e TemfS and Conditions a/Rental 10/4/96 e . e . Three (3) Net Work Cables Serial # 1: Serial # 2: Serial #3: Terms and Conditions of Rental 10/4/96 - e e Rental Plan The rental period is for five years. The annual rental fee will be .$25,000.00 per year. * Rental prices include all hardware and software. Consumable items such as tickets, envelopes and services such as installation and training can not be rented. ** All prices FOB Flower Mound, Texas. ** Prices guaranteed for a period of60 days only. """ .AJl prices quoted in U.S. dollars. .. ShippingIHandling invoiced separately Terms and Conditions a/Rental 10/4/96 e . . Appendix "B" Term This agreement is for a period offive years commencing on November L 1996 and will continue until December 30.2001. Temls and Conditions a/Rental 10/4/96 e . a '. Appendix "e" Payment Payment shall be due January 1, 1997 as outlined herein for the sum of Twenty Five Thousand dollars. $25,000.00 per year. Partial payment for the remainder of 1996 after installation will be pro-rated and invoiced. TemlS and Conditions of Rental 10/4/96