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HomeMy WebLinkAboutResolution - 2002-R0184 - Contract For A Remote Automated Kiosk - Touch Controls, Inc. - 05/09/2002Resolution No. 2002-80184 Nay 9, 2002 Item No. 41 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Contract for a remote automated kiosk, Lake Alan Henry, by and between the City of Lubbock and Touch Controls, Inc. of Fallbrook, California and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 9th day of 14ay , 2002. WINDY SIT N, MAYOR ATTEST: Becky Garza, City Secretary APPROVED AS TO CONTENT: It 4 -C OKI' b Victor Kilman, urchasing Manager APPROVED AS TO FORM: William de Haas, Contract Manager/Attorney Gs/ccdocs/contract—Touch Controls, Inc. May 1, 2002 Resolution No. 2002—R1084 KIOSK SUPPLY AGREEMENT This Kiosk Supply Agreement (hereinafter referred to as the "Agreement"), effective May 9, 2002, , (the "Effective Date") is entered into by The City Of Lubbock, a City located in the State of Texas (hereinafter referred to as "COL"), and Touch Controls, Inc., a California Corporation (hereinafter referred to as "TCI"), jointly hereafter referred to as the "Parties". RECITALS WHEREAS: A. TCI is engaged in the business of designing, manufacturing and selling Touch Activated Kiosks that incorporate the EnhancedInfraredTm Technology and are customized to specific requirements; B. COL wishes to acquire one of TCI kiosks and install it near a lake to dispense Daily Use Passes; and E. The parties believe that this Agreement represents the best way for a mutually beneficial business transaction. NOW THEREFORE, for good and valuable consideration, as set forth herein, and in consideration of the mutual covenants and promises as set forth herein, the Parties agree as follows: TERMS OF AGREEMENT 1. DEFINITIONS 1.1 "Touch Screens" shall mean those computer interface devices that allow an operator to command a computer and make it execute certain functions in accordance with Touch Screen users' computer programs that are not part of the TCI Technology or EnhancedInfraredTM Technology. 1.2 "TCI Technology" all of the drawings, software programs, manuals, manufacturing processes, and other proprietary information licensed, owned or developed by TCI for the design, manufacturing and selling of Touch Screens, and a variety of other trademarked and non - trademarked technologies. 2. SUPPLY OF HARDWARE, SOFTWARE, AND SERVICES 2.1 During the term of this Agreement, as established in Paragraph 5 herein, TCI will design, program, deliver, and install a kiosk for the automated sale of daily use passes as detailed in the Scope of Work attached hereto as Exhibit A. 2.2 After the kiosk is installed, TCI will provide maintenance and repair services as detailed in the Scope of Services attached hereto as Exhibit B. TERMS AND CONDUIONS OF SALE 3.1 The Terms and Conditions of Sale for the Kiosk are contained in Exhibit C attached hereto. 3.2 The software is not covered by warranty. The software is sold "as -is". No expressed or implied warranty is provided with the software. TCI liability on all software products or services is limited to replacing any software that might be corrupted (except for corruption caused by customer or viruses in customer's computer) or correcting custom software code that might not function in accordance with the written software requirements specifications contained in the Scope of Work attached hereto as Exhibit A. 3.3 The title shall pass from TCI to COL as soon as the kiosk is delivered FOB at the TCI factory to the carrier that will transport the kiosk to the delivery location specified by COL. 4. PAYMENTS TO TCI 4.1 COL will compensate TCI as follows: 4.1.1 $19,511.00 down payment to be received by TCI no later than 2 weeks after the execution of this Agreement; 4.1.2 $36,236.00 payment to be received by TCI no later than 30 days after the installation of the kiosk and COL verification of its working conditions; 4.1.3 $250.00 per month starting one month after the installation of the kiosk. 5. TERM OF THIS AGREEMENT 5.1 If neither of the Parties breaches the terms of this Agreement, this Agreement will remain valid for one year, and automatically renew four times, each time for an additional year unless terminated by either of the Parties, for cause, as provided below. 5.2 If TCI breached this Agreement, COL will give written notice to TCI. TCI must start correcting it's breach within two weeks after receipt of COL's notice and complete the correction as expeditiously as possible. Should TCI fail to correct its breach, COL will have the unilateral right of terminating the Agreement. 5.3 If COL breaches this Agreement, TCI will give written notice to COL. COL must start correcting it's breach within two weeks after receipt of TCI's notice and complete the correction as expeditiously as possible. Should COL fail to correct its breach, TCI will have the unilateral right of terminating this Agreement. 5.4 Neither of the Parties hereto will have the right of terminating this Agreement without cause. 6. WARRANTIES AND REPRESENTATIONS 6.1 COL represents and warrants that: (i) it has obtained all appropriate approvals for entering into this binding Agreement; (ii) it is under no restriction, conflict of interest, or prohibition to enter into this Agreement; and (iii) it fully intends to promptly provide TCI the necessary information and support required by TCI for the expeditious performance of TCI obligations under this Agreement. 6.2 TCI represents and warrants that: (i) it is a corporation in good standing under the laws of the state of California; (ii) it is under no restriction, conflict of interest, or prohibition to enter into this Agreement; and (ii) it has access to the necessary resources required to fulfill its obligations under this Agreement. 7. CONFIDENTIALITY 7.1 COL, to the extent permitted by law, will hold confidential all of TCI's Trade Secrets, or any part thereof, for any purpose other than those of TCI and will not disclose such Trade Secrets to any person whomsoever for any reason or purpose whatsoever, except as may be specifically authorized by TCI in writing. A Trade Secret shall mean information (whether in document form or not) which is not known or available to others in the trade and not included in the sales literature, concerning the manufacturing methods, software, hardware design and assembly, special installation procedures, maintenance and testing procedures, processes or techniques, which has not been disclosed by TCI to the general public, exclusive of persons in a confidential relationship with TCI and who have an obligation to TCI not to disclose such information. ASSIGNMENT 8.1 Neither party may assign this Agreement or any rights granted to it hereunder without the prior written consent of the other party, which shall not be unreasonably withheld. 9. MISCELLANEOUS 9.1 All notices and statements provided for hereunder shall be in writing and shall be sent by United States Mail, registered or certified, return receipt requested, postage pre -paid, with copy sent by fax to the address as set forth below or such address that may subsequently be designated in writing by each of the Parties from time to time. Properly addressed notices, shall be deemed delivered when postmarked. The delivery addresses are as follows: For COL: Diane Selby 600 Municipal Park Dr. Lubbock, TX 79403. For TCI: Touch Controls, Inc. Attn.: Vice President & General Manager 520 Industrial Way Fallbrook, CA 92028 9.2 This Agreement does not constitute either party as the agent or legal representative of the other party for any purpose whatsoever. Neither party shall have the right or authority to assume or create any obligation or responsibility, expressed or implied, on behalf or in the name of the other party, nor to bind the other party in any manner whatsoever. 9.3 If any provision of this Agreement is held to be invalid or unenforceable, it shall have no effect on the remainder of this Agreement that shall remain valid and enforceable. 9.4 This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and assigns. 9.5 No part of this Agreement may be waived or modified except in writing and signed by both Parties. The failure or delay of either party in enforcing any of its rights under this Agreement shall not be deemed a continuing waiver or modification. 9.6 This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas. 9.7 This Agreement shall be executed in two counterparts, both of which shall constitute one and the same agreement. 9.8 Executed as of the Effective Date. CITY OF LUBBOCK 4 Windy Sitton Mayor Attest: 4Rebecca Garza City Secretary Approved to Content: erry Ellerbrook Director of Public Works Approved as to Form: William de Haas Contract Manager/Attorney TOUCH CONTROLS, INC. Roberto Frulla Vice President & General Manager