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HomeMy WebLinkAbout21-121 Resolution No. 21-121 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE AGREEMENT WITH ESSCOE, LLC FOR GENETEC VIDEO MANAGEMENT SYSTEM i 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 Esscoe, LLC, for genetec video management system, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: August 11, 2021 Adopted: August 11, 2021 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 11th day of August , 2021, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City") and Esscoe, LLC, an Illinois limited liability company (hereinafter referred to as "Esscoe" 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. PURCHASE. City shall purchase, and Esscoe shall sell the goods and/or services described by Attachment A, attached hereto and made a part hereof. 2. TERMS. This agreement shall be subject to the price, terms and conditions contained herein; as provided by Attachment A attached hereto and made a part hereof; and as provided by a joint purchase agreement through General Services Administration ("GSA"), under Contract No. 47QSWA18D0050, incorporated herein by reference (hereinafter referred to as the UPA"). 3. CONFLICT. In the event of any conflict between any of the terms and provisions of this agreement and either Attachment A or the JPA, or any portion thereof, the terms and provisions of this agreement shall supersede and control. In the event of a conflict between Attachment A and the JPA, Attachment A shall supersede and control. 4. LAW/VENUE. 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. Esscoe 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 Esscoe agrees that service by first class U.S. mail to Wayne Skwarek, 2135 Cith Gate Lane #30, Naperville, IL 60563 shall constitute effective service. Both parties hereto waive any rights to a jury. 5. NO MODIFICATION. There shall be no modification of this agreement, except in writing and executed with the same formalities as the original. 6. MERGER. This agreement embodies the whole agreement of the parties regarding the subject matter hereof. There are no promises, terms, conditions or obligations other than those contained herein regarding the subject matter hereof, and this agreement shall supersede, supplant and replace all previous communications, representations or agreements, either verbal, written or implied between the parties hereto regarding the subject matter hereof. 7. INTEREST. Esscoe 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 50511, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this agreement. 8. SEVERABILITY. 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 remainder of this agreement shall remain in full force and effect. 9. COMPLIANCE WITH LAW. Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this agreement, Esscoe 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, Esscoe hereby certifies, represents and warrants to the City that all of Esscoe'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. Esscoe 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 Esscoe to determine Esscoe's compliance with the provisions of this section. In the event the City proceeds with such an audit, Esscoe shall make available to the City Esscoe's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 10. PAYMENT. City shall pay the total sum of $83,486,72 within thirty (30) days of delivery or other performance, or city's receipt of invoice, whichever is later. The aforementioned total sum is inclusive of all applicable taxes. 11. TERM. This Agreement shall terminate December 31,2026. 12. LIMITATION OF DAMAGES. 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. 13. INDEMNIFICATION. To the fullest extent permitted by law, Esscoe shall indemnify, defend and hold harmless the City, its officers, employees, boards and commissions, from and against any and all claims, suits,judgments, costs, attorney's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of Esscoe or Esscoe's officers, employees, agents or subcontractors in the performance of this agreement, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. 14. FEES. City shall pay to Esscoe all billed fees, costs, charges and expenses ("Fees") within thirty (30) days as provided by this Agreement. Any and all claims shall be addressed separately between the Parties. The Fees set forth herein may be adjusted at any time by mutual written agreement of both Parties. All Fees will be billed and paid in U.S. dollars, unless otherwise provided in a Schedule. 15. WARRANTY. Esscoe does not represent or warrant, expressly or implied, that its 2 services, systems and equipment will eliminate occurrences of the events that they are intended to detect or avert. Unless otherwise provided in a schedule, Esscoe has made no representations or warranties, and hereby disclaims any implied warranties of fitness for any particular use. 16. DELIVERY/FORCE MAJEURE. If equipment is purchased, Esscoe shall deliver or have delivered the equipment as projected in the Agreement or Schedules. Esscoe shall not be liable for delays in delivery or installation. "Force Majeure Event" shall mean any event beyond Esscoe's control, including but not limited to: acts of war, acts of public enemies, terrorist attacks, governmental orders relating to the foregoing, insurrections,riots, sabotage, earthquakes, floods, acts of God, embargoes, authority of laws, third-party labor disputes (including strikes, lockouts,job actions or boycotts), fires, explosions, or failure in electrical power, heat, light, air conditioning or communications equipment. In the event Esscoe is precluded or delayed from performing under this Agreement due to a Force Majeure Event, Esscoe shall be excused from such performance and may withhold performance without liability while such Force Majeure Event exists. Esscoe shall notify the City as soon as reasonably possible regarding the existence and nature of the Force Majeure event and shall promptly give notice of its recommencement of performance. In the event the Force Majeure Event exists for more than ninety (90) days, Esscoe, upon written notice,may terminate this Agreement without liability. 17. INDEPENDENT CONTRACTOR. Esscoe is an independent contractor under this Agreement. It shall comply with all payroll tax withholdings, social security,unemployment and related employer obligations applicable to it. Except as set forth in a duly authorized Power of Attorney, no Party shall hold itself out as an agent of or in a joint venture with the other, and no Party shall have the authority to act on behalf of the other. 18. SUBCONTRACTORS. Esscoe may subcontract all or portions of the Services to a third party without City's consent. The subcontracted third party shall be subject to the terns and conditions of this Agreement unless otherwise agreed to by the parties in writing. 19. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. The rights and obligations under this Agreement may not be transferred or assigned to a third party by the City without the prior written consent of Esscoe. Esscoe shall have the right to assign this Agreement without prior notice or consent of the Customer. This Agreement is binding upon and shall inure to the benefit of each Party and its respective successors and assigns. Other than Esscoe's subcontractors, there are no third party beneficiaries under this Agreement. 20. AMENDMENTS; WAIVER; SEVERABILITY. This Agreement can only be modified or amended by a written instrument signed by the Parries. A waiver of any right by either Party shall not constitute a waiver of such right on any subsequent occasion. Acceptance by Esscoe of the amounts(or lesser amounts) payable under this Agreement shall not be deemed a waiver of any default. If any provision of this Agreement is determined to be invalid, such invalidity will not affect the validity of the remaining portions of this Agreement. 21. SURVIVAL. The rights and obligations of this Agreement which by their nature are intended to survive expiration or termination shall so survive, including but not limited to Sections 3-4, 6, 13-15 and 19-24. 22. ATTORNEY'S FEES. Notwithstanding anything to the contrary provided for herein, in 3 no event shall City be liable to Esscoe for any attorney's fees. 23. NO BREACH OF OTHER AGREEMENTS. City and Esscoe each respectively represent and warrant that its execution of this Agreement does not violate any applicable law or breach any other agreement to which it is a Party or is otherwise bound. 24. NOTICE. Any notice required or permitted to be given shall, except where specifically provided otherwise, be given in writing to the person and at the address listed above by personal delivery, overnight carrier, electronic mail (e-mail) facsimile, or certified mail, return receipt requested. The date of notice shall be as follows: the date upon which such notice is so personally delivered; if by overnight carrier, the date of receipt at the designated address; if by facsimile transmission, upon electronic confirmation thereof, if by electronic mail(e-mail), upon electronic confirmation thereof or if by certified mail, the date of delivery. 25. EXECUTION. 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 which may be signed electronically or 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. The person signing this agreement certifies that s/he has been authorized by the Seller to commit the Seller contractual and has been authorized to execute this agreement on its behalf. IN WITNESS WHEREOF the parties have hereto set their hands the day and year first above written. ESSCOE CITY GIN John VanHyfte Print Name ar G. Kozdl, City anager Sfinature AT/ET Sr. Account Manager Title Uity Clerk F:ULegal Dept\Agreement\Esscoe-Software Maintenance Purchasing Agr-2-19-21.docx 4 ATTACHMENT A ILLINOIS LIC.NO.:127.001301 essccie the engineered systems company SECURITY 9 LIFE SAFETY City of Elgin PROJECT: Elgin Genetec SMA Renewal (GSA) QUOTE# JMBVQ2220-03 DATE: Jan 22,2021 SALESPERSON: John VanHyfte System Quote This Quote("Quote")is based on the requirements of Customer as provided in a request for proposal or bid offer("RFP")and is subject to ESSCOE Terms and Conditions("Terms and Conditions")attached hereto.Any changes to or deviations from the RFP requested by Customer shall be quoted separately.This Quote is valid for sixty(60)days from the date issued above,unless the Customer and ESSCOE both execute this document creating a contract("Agreement"), Quote provided under GSA contract#470SWA18DO050 for Genetec City of Elgin System ID GSC-140929-351439 based on license content on 1/22/2021 5 Year Renewal Advantage SMA 524 ADV-RE-CAM-E-SY Genetec'"Advantage Renewal for I Omnicast-Enterprise Camera-5 years $156.93 $82,231.32 5 ADV-RE-LPR-F-5Y Genetec'Advantage Renewal for 1 AutoVu'fixed camera connection-5 Years $251.08 $1,255.40 SUB TOTAL $83,486.72 SALES TAX: $0.00 TOTAL: $83,486.72 GSA pricing for Genetec Advantage renewal based on license content on 1/22/2021. Excludes all Esscoe services. 570 CAKWOOD I LAKE ZURI CH I I L 60047 MAI N 847/847.32021 FAX 847/847.3201 ww�v,c 5 r cue cant Page 1 of 2 1 of 3