Loading...
HomeMy WebLinkAbout22-0815 PowerphonePURCHASE AGREEMENT THIS AGREEMENT is hereby made and entered into this � day of �, 20 , by and between the City of Elgin, Illinois, a municipal corporation (hereinafter refcrrcd to as "City") and PowerPhone, Inc., a Connecticut corporation, (hcrcinaftcr referred to as "PowerPhone" 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 hen. -to hereby agree as follows: 1. PURCHASE. City shall purchase, and PowerPhone shall sell the goads and/or services described by Attachment A (Total Response Master Services Agreement), and Attachment B (Total Response Service Plan Agreement), attached hereto and made a part hereof. 2. TERMS, This Agreement shall be subject to the terms and conditions contained herein and as provided by Attachments A and B. 3. TERM. This Agreement shall terminate October 31, 2023. 4. LAW1 E�NUE. 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. PowerPhone 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 PowerPhone agrees that service by first class U.S. mail to PowerPhone, Inc., 1321 Boston Post Road, Madison, CI' 06443 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. 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. 7. INTEREST. PowerPhone 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, PowerPhone 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. Withmat limiting the foregoing, PowerPhone hereby certifies, represents and warrants to the City that all of Pow"Phone'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. PowerPhone shall also, at its expense, secure all permits and licenses, pay all charges and fees, and give all notices ncccssary 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 recordx in file possession or control of PowerPhone to determine Powt:rPltone's compliance with the provisions of this svrtion. In the cvcnt the City proceeds with such an audit, PowerPhone shall make available to the City PowerPhone's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. 10. 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 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. 11. CONFLICT. 1n the event of any conflict between the terms and provisions of this purchase agreement and Attachments A and B hereto, the terms and provisions of this purchase agreement shall supersede and control. In the event of any conflict between the terms and provisions of Attachments A and B hereto, the terms and provisions of Attachment A shall supersede and control. 12. PAYMENT. City shall pay the sum of $1,741.25 within thirty (30) days of receipt of invoice. City shall pay the balance of $14,001.85 for a total payment of $15,743.10 on or before November 30, 2022, or within thirty (30) days of delivery or receipt of invoice, whichever is later, The aforementioned total sum is inclusive of all freight, shipping and applicable taxes. City is a tax-exempt governmental entity. 13. DELIVERY. PowerPhone shall complete delivery of all goods on or before October I, 2022. 14. 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. 15. TRANSFER OF TFFLIsIfZISCi. Transfer of title, and risk of loss shall pass to the City upon delivery of the goods. All transportation and delivery shall be at PowerPhone's sole expense. 16. INDEMNIFICATION. To ilia fullest extent permitted by law, Powerl'hene agrees to and shall indemnify anti bold harmless the City, its officars, employees, boards and convnissions from and against any and all Claims, suits, judgments, costs, alIorney's fees, damages or any and all other reliel'or liability arising out ofor resulting from or through or alleged to Arise out of any acts or negligent acts or omissions of PowerPhone or PowerPlaone'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 hold harmless, such action shall be defended by legal counsel of the City's choosing. The person signing this Agreement certifies that s/he has been authorized by the Seller to commit the Seller contractually 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. POWERPHONE, INC. C -GIN - Print Name Richard G. Kozal, City Manager Attest: Signature A Ccrud ffio -, C City Clerk Title legal ocpl\Agr=ncnllYowcrPhone Purchase Agr-8-9-22.docx