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HomeMy WebLinkAboutReso 049-98 Voice Mail/NECRESOLUTION NO. 49 - 98 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN AWARDING PURCHASE OF VOICE 'MAIL SOFTWARE/HARDWARE TO NEC BCS (West) Inc. WHEREAS, the City recemly issued a Request for Proposal for Voice Mail Soft:ware / Hardware to four companies providing Voice Mail Systems, as authorized by the City Council at the March 3, 1998 Council meeting; and WHEREAS, the City Council authorized a waiver of the competitive bid procedures due to the technical nature of the product; and WHEREAS, Two companies responded with proposals for systems to the City's Request for Proposals; and WHEREAS, Staff reviewed the proposals and recommends that the proposal received from NEC BCS (West) Inc. best meets the requirements of the City for a Voice Mail software / hardware; and WHEREAS, the proposed agreemem with NEC BCS (West) Inc. is attached as Exhibit A and by reference made a part hereof. NOW, TH]~REFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby authorize the City Manager to execute the Agreement with NEC BCS (West) Inc., in an amount not to exceed Sixteen Thousand Eight Hundred Twelve Dollars and Eighty Seven Ceres ($16,812.87). PASSED, APPROVED AND ADOPTED this 5th day of May, 1998. AYES: Councilmembers Barnes, Burton, Lockhart and Mayor Houston NOES: None ABSENT: Councilmember Howard ABSTAIN: None K2/G/5-5-98/reso-vm. doc G:\CC-MTGS~98-QTR2~MAYX5-5-98~RESO-VM. DOC I IEC PURCHASE AGREEMENT NEC BUSINESS COMMUNICATION SYSTEMS (WEST), INC. THIS AGREEMENT is made as of May 6, 19 98 between NEC Business Communication Systems (West), Inc., having its principal place of business at 6025 Slauson Avenue, Culver City, CA 90230 ("NEC") and City of Dublin a (n) corporation/partnership/sole proprietorship, having its principal place of business at lO0 Civic Plaza, Dublin, CA 94568 Customer"). 1. AGREEMENT NEC will sell, deliver and install the hardware telecommunications equipment listed on Schedule A ("Equipment") and (if applicable) license or sublicense associated software (Equipment and associated software collectively referred to as the "System"). Customer will purchase the Equipment and license the associated software. INSTALLATION OF SYSTEM The System will be installed at 100 Civic Plaza, Dublin, CA 94568 (the "Premises"). Custom~ll secure all necessary consents, easements and rights-of-way for NEC's access to install the System at the Premises. Customer acknowledges and agrees that NEC may, in its discretion, arrange with subcontractors for the construction, installation of cable, wiring and System placement. PRICE AND PAYMENT TERMS The System price and payment terms are outlined below for the System and other Equipment. System Price: $ 15,754.80 plus applicable Sales Taxes Payment Terms: Customer shall make payments of the System purchase price on the following schedule: $ 4,726.44 (30%) upon execution of this Agreement, $ 4,726.44 (30%) upon delivery of Equipment required for Cutover, $ 4,726.44 (30%) upon Cutover, as defined herein, $ 1,575.48 (10%) upon Acceptance, as defined herein. Payment terms and NEC's obligations are contingent upon a credit report satisfactory to NEC. sales tax, SALES TAXES WILL BE BILLED IN ADDITION TO THE CONTRACT AMOUNT. The prices above exclude Page I of 7 NEC (a) Customer may, upon payment to NEC of an appropriate deposit, assign its rights to purchase under this Agreement to a third party lease financing organization ("Lessor") on terms and with documentation which are acceptable to NEC. Any such lease documentation shall include the agreement of either Customer or Lessor to make progress payments to NEC according to the above payment schedule prior to the Lessor's purchase of the System. NEC will credit the deposit and the progress payments against the System price paid by Lessor. All payments shall be due upon performance as detailed above. All payments will be subject to a late payment service charge of 1.5% per month on payments in arrears for more than ten (10) days from performance as detailed above, or the maximum amount permitted by applicable law (whichever is less). CHANGES Prior to Cutover of the System, Customer may make additions, deletions, and other changes to the System specified in this Agreement, if such change(s) are agreed upon in a wdtten change order by an authorized representative of Customer and an authorized officer of NEC. Any such change to the System may necessitate revisions in completion dates, the System Price, or unit prices stated in this Agreement, which revisions shall be specified in the change order. In case of deletions, NEC may charge Customer a restocking fee, as applicable. SCHEDULING The Cutover Date is the date the switching equipment is connected to the public telephone network, activated and providing basic telephone service to place and receive telephone calls, substantially in accordance with manufacturer's published specifications. Omissions or variances in switching equipment performance which do not materially impair the basic telephone service of the switching equipment shall not affect the Cutover Date. The anticipated Cutover Date is 19__ ACCEPTANCE The System shall be "accepted" for purposes of this Agreement, as of the thirtieth (30th) day after System Cutover, unless Customer gives NEC written notice prior to the Acceptance Date detailing how the System does not conform to Section 5 hereof. CUSTOMER'S OBLIGATIONS PRIOR TO INSTALLATION Customer shall supply, at its sole cost and expense, an environment for the System meeting the Installation Specifications set forth in Schedule B attached hereto and made' part hereof, together with all supplemental equipment, cable access and concealment, and electrical and telecommunications connections necessary for installation of the System. NEC will not install the System until Customer's preparations are complete. Customer agrees to notify NEC within one (1) week of the scheduled work commencement date if it is unable to prepare the Premises by the scheduled date of delivenj. Further, Customer shall notify NEC at least one (1) week prior to commencement of cabling as to the existence of any unusual or unsafe conditions on or around the Premises including but not limited to structural peculiarities of the Premises or the presence of asbestos or other hazardous materials. Existence of any such unusual conditions shall be ground for NEC to increase the System price, or in the alternative, to terminate this Agreement and exercise any of the remedies under Section 14 hereof. In addition, if NEC discovers any such unusual conditions after commencement of work without having received prior notification from Customer, then Customer shall indemnify and hold harmless NEC, its employees, its agents, and subcontractors against any costs necessitated by or damages directly or indirectly attributable to such unusual conditions. Page 2 of 7 NEC · (b) (a) (b) (c) (d) (e) Customer agrees to permit and arrange full accessibility of the Premises for NEC's employees, agents, and subcontractors to perform services and will make available a reasonable amount of secure space for storage by NEC of such items as NEC deems necessary. Customer shall obtain consents or waivers from Customer's landlord, or other consents or waivers which may be required, prior to installation of the System, to permit the above. Customer's failure to obtain such consents or waivers shall not relieve Customer from its obligations under this Agreement. TRAINING NEC, at no additional charge, shall provide its standard end-user training program and instructional materials for the purchased System. WARRANTY AND MAINTENANCE SERVICE NEC expressly warrants for a period of one (1) year from the Cutover Date that the System will operate free from defects in material and workmanship and in accordance with manufacturers' specifications. Unless due to causes excluded from warranty coverage in subsection (d) below, NEC agrees to repair the System or any portion thereof without charge for parts 'and labor or shipping and handling if it or any portion of it fails to work during such period· Repair or replacement of battery back-up may be covered under a separate manufacturer's warranty. Customer's remedy under this warranty shall be exclusively limited to repair or replacement of the defective part of System or refund of the applicable part of the Purchase Price, at NEC's option. The warranty period for any Equipment subsequently added to the System shall be co-terminous with the warranty period for the System, except as provided in a writing signed by an authorized officer of NEC. Excluded from coverage under this warranty are damage, defects, malfunctions or service failures caused by: (1) Customer's failure to provide or maintain environmental, operation or maintenance specifications which had been approved by NEC at Cutover in Schedule B; (2) (3) Modifications, alterations, or repairs made by anyone other than NEC or its authorized agents; Customer's mishandling, abuse, misuse, neglect, or improper storage, servicing or operation of the System including, without limitation, use with other equipment which is not compatible or does not meet performance specifications published by NEC; or (4) Fire, flood, lightning, accident, or similar events. If requested by Customer, repairs necessitated during the warranty period by any of the excluded causes shall be made by NEC at NEC's standard charges for time and materials, together with shipping and handling charges related to performing such repairs. NEC may perform some repairs under this Section 9 from a remote location. Any replacements may be either new or equivalent to new in operation. Paris will be furnished on an exchange basis, and any parts removed shall become the property of NEC. ~- NEC does not warrant that the Products will prevent, and NEC will not be responsible for, unauthorized use or ch'~'~S resulting from such unauthorized use of the System. Page 3 of 7 NEC (g) EXCEPT AS SPECIFICALLY STATED HEREIN, NEC, ITS SUPPLIERS AND AGENTS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF' MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 10. SOFI'WARE LICENSE UNLESS NEC REQUIRES A SEPARATE LICENSE AGREEMENT CONCERNING PARTICULAR SOFTWARE FOR USE ON THE SYSTEM, THE FOLLOWING LICENSE SHALL BE APPLICABLE TO SOFTWARE PROVIDED FOR USE WITH THE SYSTEM: (a) NEC grants Customer a non-exclusive license to use the Software provided under this Agreement (including related documentation and any upgrades and enhancements to the System Software) for the useful life of the System solely to operate and maintain the System purchased under this Agreement. NEC may immediately terminate such license, in the event that Customer, without NEC's pribr written consent: (1) discloses any portion of the Software to a third party, (2) reverse compiles, disassembles, modifies, adds to, deletes from or otherwise alters the Software in whole or in part, (3) sublicenses the Software, (4) transfers the Software to, or shares the use of the Software with, a third party (other than for maintenance), or (5) uses the Software on a system or equipment other than that provided to Customer by NEC under this Agreement. In addition, this Software license will automatically terminate if NEC terminates this Ag. reement, as provided in Section 14 hereof "CUSTOMER DEFAULT". If this license is terminated, Customer will, at NEC's option, either return to NEC, erase or destroy any Software and all copies and certify the same to NEC, if requested. (b) Customer may not assign, sublicense or otherwise transfer Customer's dghts or interest in this Software license, in whole or in part, except to a third party who has acquired the System from Customer, and agrees to be bound by the terms of this license. CUSTOMER MUST FORWARD WRITTEN EVIDENCE OF THE ABOVE TO NEC AS A CONDITION TO ANY TRANSFER OF THE SOFTWARE LICENSE. EXCEPT AS PROVIDED ABOVE, THE ABOVE LICENSE IS NOT TRANSFERABLE TO ANY OTHER SYSTEM OR EQUIPMENT, EVEN IF MANUFACTURED OR PROVIDED BY NEC. UNDER NO CIRCUMSTANCES SHALL CUSTOMER. (OR, IF PERMITTED ABOVE, CUSTOMER'S TRANSFEREE) ACQUIRE TITLE TO THE SOFTWARE, OR ANY RIGHT OR INTEREST TO THE SOFTWARE OTHER THAN AS SET FORTH ABOVE. Page 4 of 7 11. 12. 13. (a) (b) (c) (d) 14. (a) (b) INDEMNIFICATION Except as excluded below, NEC will defend and indemnify Customer against any claims or suits against Customer which allege infringement of a United States patent or copyright due to Customer's use of the System, provided that (a) NEC is notified promptly in writing of the suit, (b) Customer gives NEC (or the Equipment or Software manufacturer, as applicable) the sole right to defend and settle any suit, and (c) Customer fully cooperates in the defense when and as requested by NEC. Should Customer's continued use of Equipment or Software be enjoined, NEC will, at its option and expense, either: (d) procure for Customer the right to continue using the affected Equipment or Software, or (e) replace or modify the same so that infringement is eliminated. This indemnity shall not apply to any claims or suits concerning: (f) items manufactured by NEC at Customer's request and according to Customer's production specifications, (g) use of Equipment or Software in a manner or for a purpose not contemplated by this Agreement, (h) equipment or software used by Customer in conjunction with the System, but which was not supplied by NEC, or (i) commercial merchandise available on the open market or its equivalent. RISK OF LOSS; TITLE; INSURANCE Customer assumes the risk of damage or loss to any item of Equipment from the date such item is delivered to the Premises. Until the System Price is paid in full, Customer will maintain adeqUate insurance against fire, theft or other loss and name NEC as loss payee. Title to Equipment will not pass to Customer until all amounts due NEC under this Agreement, including change orders, are paid in full. ~ SECURITY INTEREST Customer hereby grants to NEC a purchase money security interest in each item of Equipment purchased by Customer hereunder, all replacements thereof, proceeds therefrom, and additions and accessions thereto. This security interest will remain in full force and effect until all amounts due NEC under this Agreement, including change orders, are paid in full. In order to perfect the foregoing security interest, Customer agrees to execute documentation reasonably required to perfect the same, including a UCC-1 or other form, or consent to the public filing of this Agreement. If Customer fails to pay any amount when due, NEC may, in addition to NEC's other rights and remedies under this Agreement or applicable law, exercise all of the rights accorded to a secured party under the law of the appropriate jurisdiction(s). Customer agrees that the Equipment is and shall remain personal property, not a fixture, whatever its mode of attachment to the Premises. CUSTOMER DEFAULT OF CANCELLATION If Customer fails to pay any sum when properly due, cancels this Agreement, or otherwise breaches this Agreement, NEC may, in addition to all other remedies available to it under this Agreement or applicable law do any or all of the following: (a) suspend the installation of the System; (b) require Customer to make the System available for NEC's repossession; (c) render the System inoperable; (d) suspend its warranty obligations, or (e) terminate this Agreement, retain all sums paid and foreclose upon the security interest granted herein in accordance with applicable law, with Customer liable for any deficiency or entitled to receive an excess. In addition, and not by way of limitation, if Customer cancels this Agreement without NEC's written consent, then NEC shall, in addition to all other remedies it may have at law or under this Agreement, recover from Customer restocking cost and all time and material costs incurred by NEC in engineering, shipping, handling, or retrieving the System. Page 5 of 7 IEC 15. 16. ¸17. 18. LIMITATION OF LIABILITY NEC WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FOR LOSS, DAMAGE OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM CUSTOMER'S USE (OR INABILITY TO USE), OR A THIRD PARTY'S UNAUTHORIZED USE, OF THE SYSTEM OR ITS COMPONENTS, EITHER SEPARATELY OR IN COMBINATION WITH OTHER EQUIPMENT, OR FOR COMMERCIAL LOSS OF ANY KIND, REGARDLESS OF WHETHER NEC OR ITS SUBCONTRACTORS HAD BEEN ADVISED OF SUCH POSSIBILITY. FORCE MAJEURE If NEC's performance is prevented, delayed, or otherwise made impractical by reason of any flood, riot, fire, strike, life or health-threatening condition on the Premises, explosion, war or any other similar cause beyond the reasonable control of NEC, NEC shall be excused from such performance until the abatement of such cause(s). GOVERNING LAW This Agreement shall be construed and interpreted in all respects in accordance with the laws of the State of California. The parties agree that the exclusive jurisdiction for all actions or claims which may arise under, in relation to, or as a result of this Agreement shall be the state and/or federal courts located within the State of California. NOTICES All notices required or permitted to be given by one party to the other for the purposes hereof Shall be in writing and sent to each party at the address indicated above by certified U.S. Mail, or other delivery service providing a signature upon receipt. Such notice shall be effective upon receipt. 19. 20. CUSTOMER Address:. Address: Facsimile: Facsimile: Attention:. Attention: ASSIGNMENT NEC BCS (WEST), INC. 6025 Slauson Avenue Culver City, California 90230 (310) 636-2401 James S. Hoover, Vice President of Finance This Agreement is not assignable by Customer without the prior written consent of NEC. Any attempt to assign any of Customer's rights, duties or obligations under this Agreement without such consent will, at NEC's option, either be deemed void or a default under Section 14. NEC may assign this Agreement to a parent company, subsidiary, or affiliate of NEC without Customer's consent. NON-WAIVER The waiver by either party of any default or any obligation will not operate as a waiver of any subsequent default or excuse any future or continuing obligation. Page 6 of 7 NEC 21. COSTS Customer will pay all of NEC's costs or expenses, including reasonable attorney's and collection fees, incurred in enforcing this Agreement. 22. PRIOR AGREEMENTS This Agreement supersedes all prior or contemporaneous proposals, communications and negotiations, both oral and written, and constitutes the entire Agreement between NEC and Customer with respect to the purchase of the System. Any representations, warranties or statements made by an employee, salesperson or agent of NEC and not expressed in the Agreement are not binding upon NEC. 23. SEVERABILITY If any court holds any portion of this Agreement unenforceable, the remaining language shall not be affected unless the failure to give effect to that portion will result in material loss or damage to the party for whose benefit such clause was intended. 24. AMENDMENTS AND MODIFICATIONS Any modification of this Agreement must be in writing and executed by an authorized representative of the party a st whom enforcement is sought. ~ WHEREFQRE, Customer and NEC have entered into this Agreement, as indicated by the signatures of their authorized representatives below. NEC Business Communication Systems (West), Inc. Customer By: Y: v'~._./ (,,~ Date: Date' * If Customer is a corporation, indicate the position or o~ce held by the person signing th~ ~~n the title line. If Customer is a paAnership, the Agreement must normally be signed by all pa~ners (or if not, at least'by a managing paAner) with the word "paAner" on the title line. If the Customer is an individual, inse~ the phrase "sole proprieto¢' on the title line. Page 7 of 7 NEC Schedule "A" City of Dublin NEAXMAIL AD-40 Stock Q'I'Y Description Unit- Extended Voice Mail System: 0160034 1 0160036 1 0163065 1 016O969 1 200244 1 400554 2 652120 1 xMDF 1 AD-40 Level I, 8 Ports, 100 Hours' Remote Maintenance for OS13 SCSI Tape - 1 GB Drive SCSI Controller Card PBX Interface Cards (Dterm III Card) Term/Print Cables Surge Protector Misc Connectors $8,955.00 $52.65 $822.15 $105.30 $2,892.00 $27.41 $52.65 $53.99 $8,955.00 $52.65 $822.15 $105.30 $2,892.00 $54.81 $52.65 $53.99 Total Equipment Cost: Installation/Training Labor: Estimated Sales Tax: Total Investment: $12,988.55 $2,766.25 $1,058.07 $16,812.87 Ad-40.xls Sched_A Page I of 1 3/31/98