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HomeMy WebLinkAbout09-154 Resolution No. 09-154 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH MOTOROLA, INC. FOR MOBILE RADIOS 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, be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin with Motorola, Inc. for purchase of six mobile radios, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: June 24, 2009 Adopted: June 24, 2009 Vote: Yeas: 6 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk mabi lena� Standard Terms and Conditions of Sale 1. Scope. Motorola,Inc,or Printrak International, Inc.,a Motorola company("Seller")will sell to Customer and Customer will purchase from Seller[tie equipment, parts, software,or services related to the equipment (e.g., installation)described in Seller's Proposal dated March 27,2009. 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. $26,112.48, 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 toss 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, par(s 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-Mo(orola 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 snakes 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 adjustntenl not provided or authorized in writing by Seller;or CCIS(Otner'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 consuntables;(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 teal'. 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(he property or 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 party 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 tine 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. (f negotiations fail,the parties will jointly select a mediator to mediate the dispute and will share equally(he 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(he alleged breach. 6. 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 13Y 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 Seiler 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 writin-an/d sign• by an authorized signatory of Seller. Seller �f� / Cast er By: By:Name andJT,�itle: -.ti�l ` BLS (/, .fir. Name and Title: U `i r nct8o f Date: y�ln_! /rot _ Date, Shot-(Form.FINAL.1.10.05.revision.doe Memorandum tom. City of Elgin Date: June 25, 2009 To: Dave Schmidt, Fire Captain From: Jennifer Quinton, Deputy City Clerk Subject: Resolution Nos. 09-153 and 09-154, Adopted at the June 24, 2009, Council Meeting Enclosed you will find the agreement listed below. Please retain a copy for your records. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you. 1. Agreement with Motorola, Inc. for Portable Radio Batteries 2. Agreement with Motorola, Inc. for Mobile Radios Resolution No. 09-153 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH MOTOROLA, INC. FOR PORTABLE RADIO 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, be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin with Motorola, Inc. for purchase of 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 24, 2009 Adopted: June 24, 2009 Vote: Yeas: 6 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk Standard Tersns and Conditions of Sale I. Scope. 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 13,2009. These terns 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. $14.799.60, 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 an([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 front 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 consuntables;(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 party 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 Majcure 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. 6. 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 taw,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 CONSEQUENTIAI.DAMAGES IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT,THE SALE,OR USE OF THE PRODUCTS,OR THI: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 Al 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 snaking,and Customer is not relying upon,anv 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 Cnsto er �t B Name and Title: J Name and Title. r` 6 Date: 4 LOd Date: M Short Form.FINAL.1.10.05.revision.doe Memorandum f= City of Elgin Date: June 25, 2009 To: Dave Schmidt, Fire Captain From: Jennifer Quinton, Deputy City Clerk Subject: Resolution Nos. 09-153 and 09-154, Adopted at the June 24, 2009, Council Meeting Enclosed you will find the agreement listed below. Please retain a copy for your records. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you. 1. Agreement with Motorola, Inc. for Portable Radio Batteries 2. Agreement with Motorola, Inc. for Mobile Radios