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Home My WebLink About2010-134 1 RESOLUTION NO. 2010-134 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE PURCHASE 3 AGREEMENT WITH MOTOROLA IN THE AMOUNT OF $40,118.85 FOR 4 COMMUNICATION EQUIPMENT. 5 WHEREAS, the Mayor and Common Council previously adopted Resolution 6 #2010-60, approving the execution of an agreement (the "original") and issuance of a 7 purchase order to Motorola in the amount of $40,118.85 for communication equipment; and 8 9 WHEREAS, Purchase Order Number 303375 has been issued for the purchase of 10 eleven (11) Astro Digital XTS 5000 Model III radios and accessories; and 11 WHEREAS, the authority granted by Resolution No. 2010-60 was rescinded, as 12 provided therein, on June 5, 2010, because the agreement approved therein had not been 13 executed by that date; and 14 15 WHEREAS, it is the desire of the City of San Bernardino and Motorola to enter into 16 an agreement that contains amendments to the original. 17 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 18 CITY OF SAN BERNARDINO AS FOLLOWS: 19 SECTION 1. That the City Manager of the City of San Bernardino is hereby 20 21 authorized to execute on behalf of said City the Agreement between the City of San 22 Bernardino and Motorola, a copy of which is attached hereto, marked Exhibit "A" and 23 incorporated herein by this reference as fully as though set forth at length; and 24 25 26 SECTION 2. The authorization to execute the above reference Agreement IS rescinded if not fully executedlissued within sixty (60) days of the passage of this 27 resolution. 28 IIII I 2010-134 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AUTHORIZING THE AMENDMENT TO THE PURCHASE AGREEMENT WITH MOTOROLA IN THE AMOUNT OF $40,118.85 FOR 3 COMMUNICATION EQUIPMENT. 4 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a joint regular meeting thereof, 7 held on the 7th ,2010, by the following vote, to wit: day of June 8 COUNCIL MEMBERS: 9 ABSTAIN ABSENT AYES NAYS 10 MARQUEZ DESJARDINS x x 11 12 BRINKER x 13 x SHORETT 14 15 KELLEY x 16 17 JOHNSON x MCCAMMACK x 18 ~b.~ Rache . Clark, CIty Clerk City of San Bernardino 19 20 21 22 23 The foregoing Resolution is hereby approved this ~day of June ,2010. 24 25 26 J. Morris, f San Bernardino Approved as to form: 27 JAMES F. PENMAN, City Attorney By: ~ 9-~ () 2 28 2010-134 EXHIBIT "A" PURCHASE AGREEMENT This Purchase Agreement is entered into this 7th day of June , 2010, by and between Motorola ("Vendor" or "Motorola") and the City of San Bernardino ("City" or "San Bernardino"). WITNESSETH: WHEREAS, the Mayor and Common Council has determined that it is advantageous and in the best interest of the City to Agreement for the purchase of eleven (11) Astro Digital XTS 5000 Model III radios and accessories; and WHEREAS, the City of San Bernardino accepts the quote from available Vendor for the purchase of eleven (11) Astro Digital XTS 5000 Model III radios and accessories. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, San Bernardino hereby engages Vendor to provide to provide eleven (11) Astro Digital XTS 5000 Model III radios and accessories per their Quote dated March 10, 2010, attached hereto and incorporated herein. 2. COMPENSATION AND EXPENSES. a. For the products and/or services delineated above, the City, upon presentation of an invoice, shall pay the Vendor up to the amount of$40,118.85 for the eleven (11) Astro Digital XTS 5000 Model III, 800 MHz radios and accessories. b. No other expenditures made by Vendor shall be reimbursed by City. c. City will make payments to Vendor within thirty (30) days after the date of the invoice. 3. TERM; TERMINATION. This purchase shall be completed within sixty (60) days. This Agreement may be terminated at any time by thirty (30) days' written notice by either party. The terms of this Agreement shall remain in force unless mutually amended. However, in the event that the City chooses to terminate this Agreement, the City shall be liable to Vendor for equipment ordered or provided to the date of notice to terminate. 4. REPRESENTATIONS AND WARRANTIES. EQUIPMENT WARRANTY. "Warranty Period" means one (1) year from the date of shipment of the Products. During the Warranty Period, Vendor warrants that the Equipment under normal use and service will be free from material defects in materials and workmanship. MOTOROLA SOFTWARE WARRANTY. Unless otherwise stated in the Software License Agreement, during the Warranty Period, Vendor warrants the Motorola 1 2010-134 Software in accordance with the terms of the Software License Agreement and the provisions of this Section that are applicable to the Motorola Software. EXCLUSIONS TO EQUIPMENT AND MOTOROLA SOFTWARE WARRANTIES. These warranties do not apply to: (i) defects or damage resulting from: use of the Equipment or Motorola Software in other than its normal, cnstomary, 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 Motorola; City'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; (Hi) 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 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. WARRANTY CLAIMS. To assert a warranty claim, City must notify Vendor in writing ofthe claim before the expiration ofthe Warranty Period. Upon receipt ofthis notice, Vendor will investigate the warranty claim. If this investigation confirms a valid warranty claim, Vendor will (at its option and at no additional charge to City) repair the defective Equipment or Motorola Software, replace it with the same or equivalent product, or refund the price ofthe defective Equipment or Motorola Software. That action will be the full extent of Vendor's liability for the warranty claim. If this investigation indicates the warranty claim is not valid, then Vendor may invoice City for responding to the claim on a time and materials basis using Vendor's then current labor rates. 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 Vendor. ORIGINAL END USER IS COVERED. These express limited warranties are extended by Vendor to the original user purchasing the Products for commercial, industrial, or governmental use only, and are not assignable or transferable. DISCLAIMER OF OTHER WARRANTIES. THESE WARRANTIES ARE THE COMPLETE WARRANTIES FOR THE EQUIPMENT AND MOTOROLA SOFTWARE PROVIDED UNDER THIS AGREEMENT AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. VENDOR DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 5. INDEMNITY. Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of Vendor, its employees, agents, or 2 2010-134 subcontractor, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the City, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged negligent acts or omissions. Vendor hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Vendor relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, Vendor shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Vendor warrants that it possesses or shall obtain, and maintain a business registration certificate as required under Chapter 5 of the Municipal Code, and any other license, permits, qualifications, insurance and approval of whatever nature that are legally required of Vendor to practice its business or profession. 8. NOTICES. Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service, postage prepaid and addressed as follows: TO THE City: Fire Department Attn: Don Feser, Emergency Services Manager 200 East 3rd Street San Bernardino, CA 92410 Telephone: (909) 384-5115 TO THE Vendor: Motorola Attn: Mark Herzog 28683 Canyon Oak Drive Highland, California, 92346 Telephone: (909) 862-3206 9. ATTORNEYS' FEES. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or 3 2010-134 provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees" for the purposes of this paragraph. 10. ASSIGNMENT. Except as provided herein, neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld. Any attempted assignment, delegation, or transfer without the necessary consent will be void. Notwithstanding the foregoing, Vendor may assign this Agreement to any of its affiliates or its right to receive payment without the prior consent of City. In addition, in the event Vendor separates one or moe of its businesses (each a "Separated Business"), whether by way of a sale, establishment of a joint venture, spin-off or otherwise (each a "Separation Event"), Vendor may, without the prior written consent of the other Party and at no additional cost to Vendor, assign this Agreement such that it will continue to benefit the Separated Business and its affiliates (and Vendor and its affiliates, to the extent applicable) following the Separation Event. 11. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 12. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 13. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 14. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its proVISIOns. 15. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 16. REMEDIES; WAIVER. All remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without 4 2010-134 waiver of any other remedies. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought. 17. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject manner of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. 18. FREIGHT, TITLE, AND RISK OF LOSS. Motorola will pre-pay and add all freight charges to the invoices. Title to the Equipment will pass to City upon shipment. Title to Software will not pass to City at any time. Risk of loss will pass to City upon delivery of the Equipment to the City. Motorola will pack and ship all Equipment in accordance with good commercial practices. 19. LIMITATION OF LIABILITY. Notwithstanding any other provision to this Agreement, except for personal injury or death, Motorola's total liability, whether for breach of agreement, warranty, negligence, strict liability in tort, indemnification, or otherwise, will be limited to the direct damages recoverable under law, but not to exceed the price of the Equipment or Software with respect to which losses or damages are claimed. ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, THEY AGREE THAT MOTOROLA 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 EQUIPMENT OR SOFTWARE OR THE PERFORMANCE OF SERVICES BY MOTOROLA PURSUANT TO THIS AGREEMENT. This limitation of liability provision survives the expiration or termination of the Agreement and applies notwithstanding any contrary provision. No action for agreement breach or otherwise relating to the transactions contemplated by this Agreement may be brought more than one (1) year after the accrual of the cause of action, except for money due upon an open account. 5 2010-134 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: 1- ( ,2010 V~OR fk By" . Vj~' HI Its:Y/li;-hrtJ(A. S(J.k~",Shr,&.6 W- By: Dated:*,201O Approved as to Form: James F. Pemnan, City Attorney By: ~ 9- f h...-.... U! 6