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Home My WebLink About07-150 Resolution No. 07-150 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH MOTOROLA, INC. FOR THE PURCHASE OF BATTERIES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED that Olufemi Folarin, City Manager, and Diane Robertson, City Clerk,be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin with Motorola, Inc. for the purchase of 162 portable radio batteries, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: June 27, 2007 Adopted: June 27, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk o 5 Standard Terms and Conditions of Sale 1. Scone. Motorola,Inc.or Printrak International, Inc.,a Motorola company("Seller")will sell to Customer and Customer will purchase from Seller the equipment, parts, software, or services related to the equipment (e.g., installation) described in Seller's Proposal dated May 3, 2007 These terms and conditions,together with the Proposal,comprise the"Agreement."Customer may indicate its acceptance of this Agreement by signing below or by issuing a purchase order that refers to either the Proposal or to a Customer solicitation to which the Proposal responds. Only these terms and conditions apply to the transaction,notwithstanding any inconsistent or additional terms and conditions contained in the purchase order or Customer solicitation. 2. Price and Payment Terms. The Contract Price is U.S. $13,183.02, excluding applicable sales, use, or similar taxes and freight. Seller will submit invoices to Customer for products when they are shipped and,if applicable, for services when they are performed. Customer will make payments to Seller within twenty(20)days after the invoice date. Seller will pre-pay and add all freight charges to the invoices. Title and risk of loss to equipment or parts will pass to Customer upon shipment. Title to software will not pass to Customer at any time. Seller will pack and ship all equipment, parts or software in accordance with good commercial practices. 3. Software. If this transaction involves software,any software owned by Seller("Motorola Software")is licensed to Customer solely in accordance with Seller's Software License Agreement("SLA"),which is attached as Exhibit A and incorporated herein by this reference. Any software owned by a third party ("Non-Motorola Software")is licensed to Customer in accordance with the standard license,terms,and restrictions of the copyright owner unless the owner has granted to Seller the right to sublicense its software pursuant to the SLA,in which case the SLA applies and the owner will have all rights and protections under the SLA as the Licensor. Seller makes no representations or warranties of any kind regarding Non-Motorola Software. 4. Express Limited Warranty and Warranty Disclaimer. Motorola Software is warranted in accordance with the SLA. For one year from the date of shipment, Seller warrants that the equipment and parts under normal use and service are free from material defects in material and workmanship. These warranties do not apply to(i)defects or damage resulting from: use of the equipment,part, or Motorola Software in other than its normal,customary, and authorized manner;accident,liquids,neglect,or acts of God;testing,maintenance,disassembly,repair,installation,alteration,modification,or adjustment not provided or authorized in writing by Seller;or Customer's failure to comply with all applicable industry and OSHA standards;(ii)breakage of or damage to antennas unless caused directly by defects in material or workmanship;(iii)equipment that has had the serial number removed or made illegible;(iv)batteries (because they carry their own separate limited warranty)or consumables;(v)freight costs to ship equipment or parts to the repair depot;(vi)scratches or other cosmetic damage to equipment surfaces that does not affect the operation of the equipment; and (vii) normal or customary wear and tear. These express limited warranties are extended by Seller to the original user purchasing the products for commercial, industrial, or governmental use only, and are not assignable or transferable. If Customer gives notice of a valid warranty claim before the expiration of the warranty period,Seller will(at its option and at no additional charge to Customer)repair the defective product,replace it with the same or equivalent product,or refund the price of the defective product. This action will be the full extent of Seller's liability for a warranty claim. Repaired or replaced product is warranted for the balance of the original applicable Warranty Period. All replaced products or parts will become the property of Seller. THESE WARRANTIES ARE THE COMPLETE WARRANTIES AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. SELLER DISCLAIMS ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 5. Delays and Disputes. Neither parry will be liable for its non-performance or delayed performance if caused by an event,circumstance,or act of a third party that is beyond a party's reasonable control (a"Force Majeure"). Each party will notify the other if it becomes aware of a Force Majeure that will significantly delay performance. The parties will try to settle any dispute arising from this Agreement(except for a claim relating to intellectual property or breach of confidentiality)through good faith negotiations. If necessary,the parties will escalate the dispute to their appropriate higher-level managers. If negotiations fail,the parties will jointly select a mediator to mediate the dispute and will share equally the mediation costs. Neither party will assert a breach of this Agreement without first giving the other party written notice and a thirty(30)day period to cure the alleged breach. b. LIMITATION OF LIABILITY. Except for personal injury or death, Seller's total liability, whether for breach of contract, warranty, negligence,strict liability in tort,or otherwise,will be limited to the direct damages recoverable under law,but not to exceed the purchase price of the products or services for which losses or damages are claimed. SELLER WILL NOT BE LIABLE FOR ANY COMMERCIAL LOSS; INCONVENIENCE;LOSS OF USE,TIME,DATA,GOOD WILL,REVENUES,PROFITS OR SAVINGS;OR OTHER SPECIAL,INCIDENTAL, INDIRECT,OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT,THE SALE OR USE OF THE PRODUCTS, OR THE PERFORMANCE OF SERVICES BY SELLER PURSUANT TO THIS AGREEMENT. No action for contract breach or otherwise relating to the transactions contemplated by this Agreement may be brought more than one year after the accrual of the cause of action. This limitation of liability survives the expiration or termination of this Agreement. 7. Confidential Information and Preservation of Proprietary Rights. The SLA governs software confidentiality. As to any other information marked "Confidential"and provided by one party to the other,the receiving party will maintain the confidentiality of the information and not disclose it to any third party; take necessary and appropriate precautions to protect the information; and use the information only to further the performance of this Agreement. Confidential information is and will remain the property of the disclosing party,and no grant of proprietary rights in the confidential information is given or intended. Seller, any copyright owner of Non-Motorola Software, and any third party manufacturer own and retain all of their proprietary rights in the equipment,parts and software,and nothing herein is intended to restrict their proprietary rights,. Except as explicitly provided in the SLA,this Agreement does not grant any right,title or interest in Seller's proprietary rights,or a license under any Seller patent or patent application. 8. Miscellaneous:Each party will comply with all applicable laws, regulations and rules concerning the performance of this Agreement or use of the products. Customer will obtain and comply with all FCC licenses and authorizations required for the installation, operation and use of the products. This Agreement and the rights and duties of the parties will be governed by and interpreted in accordance with the laws of the State in which the products are installed. This Agreement constitutes the entire agreement of the parties regarding this transaction,supersedes all previous agreements and proposals relating to this subject matter,and may be amended only by a written instrument executed by both parties. Seller is not making,and Customer is not relying upon,any representation or warranty except those expressed herein. There are no certifications or commitments binding Seller applicable to this transaction unless they are in writing and signed by an authorized signatory of Seller. Seller Customer By: By: •t-i•� GAT y n�t9Na6 Name n Title: l Name and i Date: Date: _ Elgin,IL- Fire Department Radio Equipment Proposal • Agenda Item No. S a City of Elgin June 8, 2007 TO: Mayor and Members of the City Council SAFE COMMUNITY FROM: Olufemi Folarin, City Manager," Michael Falese, Fire Chief J SUBJECT: Purchase of Portable Radio Batteries from Motorola PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider an exception to the procurement ordinance with Motorola for the purchase of portable radio batteries. RECOMMENDATION It is recommended that the City Council authorize the purchase of 162 portable radio batteries from Motorola in the amount of$13,183.02. BACKGROUND The proposed purchase will be for 162 portable radio batteries. All fire department personnel are issued portable radios to allow communications between themselves, other units, and the Emergency Communications Center. The proper functioning of these radios is dependent on a regular rotation and replacement of batteries. Historically, Motorola has been the provider of this equipment for compatibility across all areas of radio communication. It is imperative that all of the mobile and portable radio equipment is kept identical for the maintenance and updates of these units. COMMUNITY GROUPSANTERESTED PERSONS CONTACTED None FINANCIAL IMPACT There are sufficient funds budgeted ($15,700) and available ($14,158) in the General Fund, account number 010-2802-735.19-02 "Electrical Materials", project number 289401 "SUP100" to make this purchase totaling $13,183.02 from Motorola. Motorola Batteries June 8, 2007 Page 2 EGAL IMPACT VOVThis is an exception to the procurement ordinance based on section 5.02.020 Section B.9, stating that "contracts authorized by a vote of 2/3 of all members of the city council then holding office upon a finding by the city council that an exception to the requirements of the procurement ordinance is necessary and in the best interests of the city". ALTERNATIVES 1. Purchase the portable radio batteries from Motorola. 2. Solicit bids for similar products and have a mix of batteries for this use. Respectfully submitted for Council consideration. MWF/dhh Attachment Page 1 of 1 �J Created By: el 9 infd Cart Name: Batteries05-07 Currency: USD Created On: 06 May 2007 Contract: ELGIN FIRE,CITY OF —� Billing Address Shipping Address Ultimate Destination ELGIN FIRE DEPT,CITY OF 550 SUMMIT DEPT,CITY OF 550 SUMMIT ST ELGIN,IL,60120 ELGIN,IL,60120 United States United States Ultimate Country United States 1, Modal No.NNTN44368 Extended Price Est.Ship Date Available Your Price city 3 448.62 07 May 2007 N 82.11 42 2. Model No.HNN9029AR Oty Extended Price Available Your Price Est. p Date 81 12 120 9,734.40 07 Ma y 2007 N Total: 13,183.02 r r