HomeMy WebLinkAbout2/4/2004 - STAFF REPORTS (18) SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is made and entered into as of
[Month] [Day], 200_ ("Effective Date"), by and among Tiburon, Inc., a Virginia corporation,
("Tiburon"), and the City of Palm Springs, California, a Municipal corporation (the "City"). City
and Tiburon are sometimes referred to individually as a "Par ' and collectively as the "Parties."
RECITALS
A. City and Tiburon entered into those certain (1) Contract Services Agreement for
Computer Assisted Public Safety System Agreement No. 4050, dated February 8, 1999, which was
subsequently amended through Contract Arnendrnent No. 1 which was mitered into on or about April
26, 1999 (the "Installation A)zreement"); and (2) Agreement for Extended Services dated April 20,
2001 (the "Maintenance Agreement") which are attached hereto and incorporated herein by this
reference.
B. A dispute now exists between the Parties regarding the Parties' respective rights and
obligations under both the Installation Agreement and the Maintenance Agreement. City contends
that Tiburon has not fully performed its obligations pursuant to the Installation and Maintenance
Agreements. Tiburon contends that it has performed its obligations to date and that the unpaid
balances of both the Installation Agreement and Maintenance Agreements are due and payable by
City to Tiburon(hereinafter refereed to as the"DISPUTE")
C. Effective June 17, 2003, the Parties entered into that certain Tolling Agreement to toll
the applicable statutes of limitations regarding their respective claims (the "Tolling Agreement").
The Tolling Agreement was subsequently extended on or about October 31, 2003 by the Parties, and
again on or about December 8, 2003.
D. The Parties understand and agree that the DISPUTE arose out of the work performed
by Tiburon pursuant to the Installation &Maintenance Agreements. The Parties desire to resolve all
of the issues raised in the DISPUTE and enter into this Agreement, to FINALLY, FULLY and
COMPREHENSIVELY settle the DISPUTE and all claims for darnages, extra costs, delays or
compensation of any nature whatsoever that are in anyway related to the DISPUTE so as to allow the
Parties to continue their pursuits having fully, finally, comprehensively and conclusively resolved
said matters, as well as all underlying contentions and allegations.
AGREEMENT
In consideration of the covenants herein contained, and for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged,the Parties hereto hereby
agree as follows, in full and complete settlement of the DISPUTE and any and all claims for
damages, extra costs, delays and/or compensation of any nature whatsoever that are in anyway
related to the DISPUTE.
1. Payment.
(a) Concurrent with the execution of this Agreement, City will pay to Tiburon the
sum of $49,296 following outstanding amounts: (1) $24,648 for completion of MDS installation
under the Installation Agreement; (2) and $24,648 for the Milestone Payment titled "Certification—
Ready for Production"under the Installation Agreement; and
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(b) Subject to and within 5 days following the Parties' mutual agreement to a
Systern Upgrade Plan (defined in Section 2 of this Agreement), or not later than June 30, 2004,
whichever is later, City will pay to Tiburon $39,283.00 for the period January 1, 2004 through June
30, 2004 which is equal to the unpaid balance of the annual support fee payable under the
Maintenance Agreement; and
(c) Subject to and within 10 business days following Tiburon's completion of all
of the work set forth in the System Upgrade Plan (defined in Section 2 of this Agreement), City will
pay to Tiburon $24,648 (the "Final System Upgrade Payment"), which is equal to the amount
payable for Final System Acceptance under the Installation Agreement.
2. System U •ade. Tiburon will use commercially reasonable efforts to develop a plan
to upgrade the software systems provided by Tiburon to City (the "System Upgrade Plan"). The
System Upgrade Plan will include an Upgrade Project Statement of Work and an Upgrade Project
Schedule, and upon acceptance by the parties, will constitute an amendment to the Maintenance
Agreement. City will fully collaborate with and cooperate in the development of the System
Upgrade Plan as reasonably requested by Tiburon. Adoption of the System Upgrade Plan is subject
to mutual agreement of Tiburon and City who shall not unreasonably withhold their respective
consent to the System Upgrade Plan and who will use their best efforts to have (a) Tiburon's
assessment completed within sixty (60) calendar days from the Effective Date; (b) Tiburon's
proposal submitted within one hundred twenty (120) calendar days from the Effective Date, and (c)
the System Upgrade Plan adopted as soon thereafter as the parties mutually agree. Completion of all
of the work set forth in the System Upgrade Plan is a condition precedent to the City making the
payment set forth in paragraph 1(b) of this Agreement. Among other provisions, the System
Upgrade Plan will include, the following provisions:
(a) The Upgrade Project Statement of Work will include, but is not limited to, a
complete upgrade of the NT Computer Aided Dispatch Direct Delivery Product software ("CAPS
software") that Tiburon installed pursuant to the Installation Agreement with the latest release(s)
available from Tiburon at the time the business practice review is held. Tiburon will provide the City
with a complete set of specifications for the software that is to be installed prior to installation. The
Upgrade Project Statement of Work will provide for a complete testing of the CAPS software which
will be performed after the CAPS software is upgraded by Tiburon and Tiburon will ensure that all
aspects of the software properly interface and comply with the specifications for all upgraded
software installed by Tiburon. Tiburon will take any and all action reasonably necessary to resolve
any deficiencies, defects, or other problems with the CAPS software after it is upgraded including,
but not limited to, interfacing problems. The City's responsibilities raider the Upgrade Project
Statement of Work will include, but not be limited to, the procurement, installation, and
configuration of all specified third party software and hardware items, providing Tiburon with
remote system access, coordination/facilitation as necessary with other governmental agencies and
vendors, providing all facilities as specified for system installation and training, and providing
personnel to enter all City data and to review the results of all data conversion processes.
(b) The Upgrade Project Statement of Work will include, but is not limited to,
project management, business practice review(s), up to 20 days of train-the-trainer training
("Training"), data conversion, system testing, and go-live support.
(e) City will be responsible for costs incurred by City in fulfilling its obligations
under this Agreement and for incremental costs, if any, associated with third-party products including
without limitation computer hardware upgrades and operating software. The City will not be
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responsible for any other costs or expenses for performing the work set forth in the System Upgrade
Plan.
(d) City will permit Tiburon's technicians access to the City's facilities to
conduct and document a thorough operating system analysis to support development of the System
Upgrade Plan, and the City will provide appropriate technical and other persomiel to assist with
Tiburon's analysis.
(e) The Upgrade Project Schedule will contain a provision that all work provided
for in the Upgrade Project Statement of Work will be completed by a date certain that is mutually
acceptable to Tiburon and City.
3. Effect on Other Agreements. Upon the execution of this Agreement,
(a) The Parties agree that the Installation Agreement will be deemed fully
completed and of no further force and effect including, but not limited to, all warranty provisions
contained therein and obligations to make payments under the Installation Agreement.
(b) The Tolling Agreement will terminate and be of no further force or effect.
(c) The Maintenance Agreement will continue in full force and effect except to
the extent it is modified as set forth in this Agreement which shall have precedence over the
Maintenance Agreement. Upon completion of all work contemplated by the System Upgrade Plan,
and all outstanding payments due in accordance with this Agreement, the Maintenance Agreement
will terminate and be of no further force or effect.
4. Maintenance Agreement. The parties will negotiate in good faith a new maintenance
agreement ("New Maintenance Agreement") to take effect upon completion of work under the
System Upgrade Plan. The parties acknowledge that the existing Maintenance Agreement sets forth
maintenance support fees to be paid by City only through June 30, 2004. Until all work under the
System Upgrade Plan is completed, the Maintenance Agreement as amended by this Agreement will
continue in effect. Under the Maintenance Agreement, he City will pay Tiburon one half the
"current annual support fee" on or before July 1, 2004, and will pay the remaining balance of the
"currently annual support fee" on or before January 1, 2005. When all work under the System
Upgrade Plan is completed, the parties anticipate that the New Maintenance Agreement will take
effect. The New Maintenance Agreement may include such terns and conditions as the parties
mutually agree, provided that the maintenance support fees established by the New Maintenance
Agreement may not be increased from the levels set forth in the New Maintenance Agreement wiless
Tiburon provides written notice to the City of the increased fees at least 90 days before the new fees
go into effect.
5. No Admission. Each Party hereto acknowledges and agrees that this is a compromise
settlement of the hereinabove mentioned DISPUTE and all claims for damages, extra costs, delays
and/or compensation of any nature whatsoever that is in anyway related to the DISPUTE, which is
not in any respect to be deemed, construed or treated as an admission or a concession of any liability
whatsoever by any Party hereto, including any public entity,person, firm, partnership, or corporation
for any purpose whatsoever.
6. Investigation. The Parties agree that they have made such investigation of the facts
pertaining to this Agreement and all matters pertaining hereto as he has determined necessary. This
Agreement is intended to be final and binding among the Parties hereto, regardless of any claims or
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misrepresentations,promises made without the intention of performing them, mistakes of fact or law,
or any other circumstances whatsoever, and under no circumstances shall any Party be entitled to set
aside this Agreement, either in whole or in part. In entering into this Agreement, each Party assumes
the risk of any misrepresentation, concealment or mistake, whether or not any Party should
subsequently discover or assert for any reason that any fact relied upon by such a Party in entering
into these releases was untrue, or that any fact was concealed from any Party hereto, or that such
Party's understanding of the facts or of the law was incorrect or incomplete.
7. Release by Tiburon. Except as provided herein, Tiburon for itself and all of its
predecessors, successors, assigns, representatives, attorneys or agents, does hereby fully and
forever release and discharge City and all of its predecessors, successors, assigns, representatives,
attorneys, agents, and employees of and from any and all actions, claims, demands, rights,
damages, costs, expenses, license fees, attorneys fees, expert fees, consultant fees, other fees,
interest, and compensation of any nature whatsoever, which Tiburon has or may hereafter accrue,
including without limitation, any and all known and unknown, foreseen and unforeseen claims,
damage and injury, relating to, or in any way, directly or indirectly, involving or arising out of any
facts or circumstances related to the DISPUTE, the Installation Agreement and/or the Maintenance
Agreement.
S. Release by City. Except as provided herein, City, for itself and all of its
predecessors, successors, assigns, representatives, attorneys or agents, does hereby fully and
forever release and discharge Tiburon and all of their predecessors, successors, assigns,
representatives, attorneys, agents, and employees of and from any and all actions, claims, demands,
rights, damages, costs, expenses, attorneys fees, expert fees, consultant fees, other fees, interest,
and compensation of any nature whatsoever, which City has or may hereafter accrue, including
without limitation, any and all known and unknown, foreseen and unforeseen claims, damage and
injury, relating to, or in any way, directly or indirectly, involving or arising out of any facts or
circumstances related to the DISPUTE , the Installation Agreement, and/or the Maintenance
Agreement.
9. Section 1542 Waiver. Except as provided herein, it is the intention and
understanding of the Parties hereto, in executing this instrument, that it shall be effective as a full
and final accord and satisfaction and compromise and release, of each and every settled or released
matter. hi furtherance of this intention, the Parties acknowledge that they are familiar with Section
1542 of the Civil Code of the State of California which provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspects to exist in his favor at the time of executing the
release, which, if known by him,must have materially affected his
settlement with the debtor."
Except as provided herein, the Parties hereby expressly waive or relinquish any right or
benefit which they have, or might have, under Section 1542 of the Civil Code of the State of
California and all other similar provisions of law of other jurisdictions to the fullest extent allowed
by law. Except as provided herein, in connection with such compromise, waiver and
relinquishment, the Parties acknowledge that they are aware that they may hereafter discover facts
in addition to or different from those which they now know or believe to be true with respect to the
subject matter of this instrument, but that, except as is otherwise provided herein, it is their
intention hereby to fully, finally and forever settle and release all matters, disputes and differences,
known or unknown, suspected or unsuspected, which do now exist, may exist, or heretofore have
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existed, and that in furtherance of such intention, the release actually given herein shall be and
remain in effect as a full and complete general release, notwithstanding the discovery or existence
of any such additional or different facts.
10. Limitation of Waivers and Releases. The Parties expressly agree that the waivers
and releases contained in the Agreement shall not prevent, limit or be deemed as a waiver and/or
release of any of the following:
(a) Tiburon shall not be deemed to have waived and/or released any and all
actions, claims, demands, or rights it may have or hereafter accrue for damages, costs, expenses,
attorneys fees, expert fees, consultant fees, other fees, interest, and compensation of any nature
whatsoever against City that are in any way related to City's obligations set forth in paragraphs 1
and 4 above; and,
(b) City shall not be deemed to have waived and/or released any and all
actions, claims, demands, or rights it may have or hereafter accrue for damages, costs, expenses,
attorneys fees, expert fees, consultant fees, other fees, interest, and compensation of any nature
whatsoever against Tiburon that are in any way related to Tiburon's obligations set forth in
paragraphs 2 and 4 above;
11. Governing Law. This Agreement shall be governed and interpreted in accordance
with the laws of the State of California. Each Party hereto agrees that the laws of the State of
California shall apply and that any action brought hereunder shall be subject to the laws and statutes
of the State of California. The Parties expressly agree that any disputes, disagreements or actions
shall be venued with the state or federal court located in San Diego County, State of California. The
Parties stipulate that they are subject to the jurisdiction of the state and federal courts located in San
Diego, California and hereby expressly waive any defense to assertion of personal jurisdiction by that
court in such an action.
12 Modification. No supplement, modification or amendment of this Agreement shall
be binding unless executed in writing by all of the Parties. No waiver of any of the provisions of this
Agreement shall be deemed to constitute a waiver of any other provision whether or not similar, nor
shall waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing
by the Parties making the waiver.
13 Binding on Successors. This Agreement and the covenants and conditions contained
herein shall obligate, bind, extend to and inure to the benefit of the Parties in each of their respective
successors in interest, including, but not limited to, their administrators, executors, owners, partners,
officers, directors, shareholders, legal representatives, assignees, attorneys, successors, and agents or
employees of the Parties hereto.
14. Representation of Tiburon. Tiburon affirmatively represents that it has been
represented by Hopkins & Carley of San Jose, California, who are attorneys at law of its own
choosing. Tiburon has read this Agreement and has had the terns used herein and the consequences
thereof explained by its above-named attorneys of choice.
15. Representation of City. City affirmatively represents that it has been represented by
Aleshire & Wynder, LLP of Irvine, California, who are attorneys at law of its own choosing. City
has read this Agreement and has had the terms used herein and the consequences thereof explained
by its above-named attorneys of choice.
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16. Construction. This Agreement shall not be construed against the party preparing it,
but shall he construed as if all PARTIES jointly prepared this Agreement. Any uncertainty and
ambiguity shall not be interpreted against any one party. This Agreement is to be performed in
California and it is to be interpreted, enforced, and governed by and under the laws of the State of
California. Language in all parts of the Agreement shall be in all cases construed as a whole
according to its very meaning.
17. Entire Agreement. This Agreement contains the entire understanding and agreement
between the Parties, and the terms and conditions contained herein shall inure to the benefit of, and
be binding upon, the heirs, representatives, successors and assigns of each of the Parties hereto. No
other representations, covenants,undertakings, or other prior or contemporaneous agreements, oral or
written, respecting such matters, which are not specifically incorporated herein, shall be deemed in
any way to exist or bind any of the PARTIES hereto. The PARTIES hereto acknowledge that this
Agreement has been executed without reliance upon any such promise, representation, or warranty
not contained herein.
18. Remedies. A Parry may seek any form of equitable relief, including specific
performance and injunction, where the other Party's continued or threatened breach of a material
obligation or undertaking would result in irreparable injury. All rights and remedies conferred or to
be conferred upon an aggrieved Party under this Agreement is cumulative and not exclusive of any
other rights or remedies available at law, in equity, under this Agreement, or otherwise.
19. Additional Actions. Each Parry will execute, acknowledge, or verify any additional
document and take such other action as reasonably necessary or reasonably requested by the other
Party to effectuate the purpose of this Agreement. Without limiting the foregoing in any way,
Tiburon will provide City with all products and services necessary to deploy the latest versions of
Tiburon Application software products currently licensed to City.
20. Enforcement Expenses. If any Party brings a court action to enforce the Party's
rights hereunder, the prevailing Party will be entitled to recover its costs and expenses, including
reasonable attorneys' fees and costs of reasonable investigation, preparation, and professional and
expert consultation, incurred in connection with such action, including any appeal thereof.
21. Severability. The invalidity, illegality, or unenforceability of any part hereof will not
impair the validity, legality, or enforceability of the remainder.
22. Counterparts: Facsimile Signature.
(a) This Agreement may be executed in multiple duplicate counterparts by each
Party's signing any counterpart. When so executed, such counterparts constitute a single agreement.
(b) A Party may execute and deliver this Agreement by signing the signature
page and electronically transmitting a facsimile thereof.
23. Notices. Any notice required or permitted under this Agreement must be in writing,
addressed as follows:
If to Tiburon: Tiburon, hie.
Attention: Contract Administrator
Civic Center Drive
Fremont, California 94538 /
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(510) 742-1057 (facsimile)
If to City:
(facsimile)
Notice will be deemed effective (a) on the date of personal delivery; (b) one business day following
deposit with a nationally recognized overnight courier or confirmed facsimile transmission; or (c)
three business clays following deposit with the United States Postal Service by certified or express
mail, with return receipt requested and postage prepaid. Either party may change its address for
notice by providing notice as required in this Section.
The Parties have executed this Agreement as of the Effective Date.
Company: City:
TIBURON, INC. CITY OF PALM SPRINGS,
a Virginia corporation a Municipal corporation
By:
Name: By:
Title:
TIBURON, INC. ATTEST:
a Virginia corporation
By:
Name:
Title: CITY CLERK OF
THE CITY OF PALM SPRINGS
Address: 39350 Civic Center Drive
Fremont, California 94538 APPROVED AS TO FORM AND CONTENT
Facsimile: (510) 792-2897
ALESHIRE &WYNDER,LLP
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MINUTE ORDER NO
APPROVING A SETTLEMENT
AGREEMENT AND RELEASE
BETWEEN TIBURON, INC. AND THE
CITY OF PALM SPRINGS RELATED TO
POLICE DEPARTMENT COMPUTER
INSTALLATION AND MAINTENANCE.
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I HEREBY CERTIFY that this Minute Order, approving a Settlement Agreement
and Release between Tiburon, Inc. and the City of Palm Springs related to Police
Department computer installation and maintenance, was adopted by the City
Council of the City of Palm Springs, California, in a meeting thereof held on the
41h day of February, 2004.
PATRICIA A. SANDERS
City Clerk