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HomeMy WebLinkAbout17-138 Resolution No. 17-138 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE AGREEMENT WITH VERTICAL VAR, LLC FOR IBM ISERIES POWER 8 SERVER FOR NAVILINE E41) REPLACEMENT 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 BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Purchase Agreement on behalf of the City of Elgin with VERTICAL VAR, LLC for IBM iSeries Power 8 Server for NaviLine E41) Replacement, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: November 8, 2017 Adopted: November 8, 2017 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk PURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this 8 day of November 2017, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Vertical VAR, LLC, a Georgia limited liability company, (hereinafter referred to as "VERTICAL" or "Seller"). NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. City shall purchase, and VERTICAL shall sell the goods and services described by Attachments A and B, attached hereto and made a part hereof. 2. This agreement shall be subject to the terms and conditions contained herein and as provided by Attachments A and B. 3. This agreement is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement shall be the Circuit Court of Kane County. Illinois. VERTICAL hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights; the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof, and VERTICAL agrees that service by first class U.S. mail to VERTICAL at, P.O. Box 8869, Atlanta, GA 31106, shall constitute effective service. 4. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 5. This agreement embodies the whole agreement of the parties. There are no promises; terms. conditions or obligations other than those contained herein, and this agreement shall supersede all previous communications, representations or agreements, either verbal; written or implied between the parties hereto. 6. VERTICAL hereby waives any and all claims or rights to interest on money claimed to be due pursuant to this agreement, and waives any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 505/1, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/l, et seq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 7. The terms of this agreement shall be severable. In the event any of the terms or the provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the reminder of this agreement shall remain in full force and effect. 8. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, VERTICAL shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, VERTICAL hereby certifies, represents and warrants to the City that all of VERTICAL's employees and/or agents who will be providing products and/or services with respect to this agreement shall be legally authorized to work in the United States. VERTICAL shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this agreement. The City shall have the right to audit any records in the possession or control of VERTICAL to determine VERTICAL's compliance with the provisions of this section. In the event the City proceeds with such an audit, VERTICAL shall make available to the City VERTICAL's relevant records at no cost to the City. VERTICAL shall pay any and all costs associated with any such audit, not to exceed $900. 9. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re-executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. 10. In the event of any conflict between the terms and provisions of this purchase agreement and Attachment A or B hereto, the terms and provisions of this purchase agreement shall control. 11. City shall pay the total sum of$27,500 within thirty (30) days of delivery or city's receipt of invoice, whichever is later. The aforementioned total sum is inclusive of all freight, shipping and applicable taxes. 12. VERTICAL shall complete delivery of all goods on or before December 31, 2017, and shall complete full performance of this agreement on or before January 31, 2018. 13. VERTICAL shall not be liable for delay directly caused by any prohibition, failure, interruption or delay in manufacture or delivery which may be occasioned by sabotage, fire, flood, explosion, labor dispute, strike, work stoppage, riot, insurrection, war, act of, or priorities granted by request of or for the benefit, directly or indirectly, of any government body, authority or agency, shortage of raw materials or supplies, act of God or other cause beyond VERTICAL's control. In the events of any such prohibition, failure, interruption or delay, VERTICAL may, at its option extend the delivery time or cancel the order in whole or in part. In no event shall VERTICAL be liable for any consequential damage or claims for labor resulting from loss of 2 profit of the City. 14.' In no event shall City be liable for any monetary damages in excess of the purchase price contemplated by this agreement. In no event shall City be liable for any consequential, special or punitive damages, or any damages resulting from loss of profit. 15. Delivery shall occur, and risk of loss shall pass to the City, upon delivery of the goods to the point of delivery. All transportation and delivery shall be at VERTICAL's sole risk and expense. 16. Order, Delivery and Installation. This is a custom order. If the City cancel an order for Products within 10 business days prior to the City's shipment date, then the City agrees to pay any costs VERTICAL incurs for such cancellation, including cancellation charges VERTICAL are assessed by VERTICAL suppliers. However, the City may not cancel an order after the Products have been shipped, and the City may not cancel an order for Subscriptions after they have begun. VERTICAL bears the risk of loss for each Product until it is delivered to the City. Thereafter, the City assumes the risk of loss. The City must install all Programs and the City must install Machines designated as Customer-set-up by the manufacturer. The manufacturer will install all other Machines. Within 10 business days of their delivery, the City may return any Products that are defective on arrival and cannot be installed. Otherwise, if the City wishes to return any Products which are not defective and have never been installed, then the City must first obtain VERTICAL's written consent and agree to pay any return charges VERTICAL are assessed by VERTICAL's suppliers. Some Products may not be returnable. Following their installation, the City may only return the Products under the provisions of the manufacturer's warranty. 17. Title and License. VERTICAL transfers' title to Machines to the City when VERTICAL (a) receives the total Invoice Amount due and (b) the City returns any removed parts that become our property during a feature or model upgrade. The application, use and other aspects of the Programs and the Subscriptions are solely governed by the terms and conditions of the applicable agreement between the City and the manufacturer. If the City fails to pay the Invoice Amount, including late payment charges, then VERTICAL may remove and repossess the Machine without notice or demand, and VERTICAL may request the manufacturer to cancel the Program license or Subscription. 18. Warranty. All warranties with regard to the Products or the Subscriptions are provided directly by the manufacturer to you. VERTICAL warrants only that VERTICAL is authorized to supply Products and the Subscriptions. THESE WARRANTIES ARE THE CITY'S EXCLUSIVE WARRANTS AND VERTICAL MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS 3 FOR A PARTICULAR PURPOSE. VERTICAL does not warrant uninterrupted or error- free operation of any Product. VERTICAL warrants that VERTICAL performs Services using reasonable care and skill in accordance with recognized standards in the industry. VERTICAL DOES NOT PROVIDE ANY OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VERTICAL does not warrant uninterrupted or error free operation of any Service. 19. Customer Obligation. The City agrees to provide VERTICAL reasonable access to the premises where Services will be provided during the City's business hours. The City will also provide other onsite cooperation and assistance as may be reasonably requested by VERTICAL. The City agrees to sign and deliver to VERTICAL an acknowledgment of completion of services when the tasks described in the Statement of Work are complete. CITY OF ELGIN VERTICAL VAR, LLC Thomas H. Lewis Jr char oza , Cif y anager Print Name AVC tt City Clerk Signature President Title F:\Leeal Dept\Agreement\Purchase Agreement-Vertical VAR LLC-10-25-17.docs 4 ATTACHMENT A Machine/Program Description Qty Unit Price Amount 8286-41A SPS VAR NaviLine® Solution 1 $22,100.00 $22,100.00 IBM POWER 80, Rack mountable (no rack, included) 4 Core, 1 Core Active and Licensed with 9,900 CPW Rating (6) X 283GB Disk Drives (RAIDS Plus Hots are LITB Usable 16 GB Memory 150 IBMi User Licenses transferred from 8202- E41)sn 91701 T IBMi®OS V7R3 Redundant 4-Port, I GbE Ethernet NIC Card System Console on Ethernet LAN Redundant 1 IOv Power Supplies Three Year, 24 X 7 Hardware and Software Maintenance Total Price Excluding Shipping Charges and Sales Taxes: 1 $22,100.00 5 ATTACHMENT B Statement of Work Project Name: NaviLine E4D Upgrade Hourly Services: Hours x $ per Hour= Estimated Total Charges OR X Fixed-Price Services: $5,400.00 Invoiced Upon Product Start Estimated Expenses: $ 0 Travel & Living and 0 Other Expenses Estimated Start Date: 12/01/2017 End Date: 12/31/2017 Services: Remote Assistance with Data Migration with OS upgrade to V7.3 from 8202-E4D sn 9FO1T 6