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HomeMy WebLinkAbout2016-535-E Emergency Svc - Wireless Communications for equipment backup for 911 center DocuSign Envelope ID:4B1AA7EB-B8B7-4914-AFCE-D22E155BC416 Sales Agreement THIS SALES AGREEMENT dated this Si day of , 2016 BETWEEN: Wireless Communications, Inc. of 4800 Reagan Drive, Charlotte, Mecklenburg County, North Carolina (the 'Seller') OF THE FIRST PART -AND - Orange County, 200 S. Cameron Street, PO Box 8181, Hillsborough,NC 27278-8181 (the 'Purchaser') OF THE SECOND PART IN CONSIDERATION OF THE COVENANTS and agreements contained in this Sales Agreement, the parties to this Agreement agree as follows: Sale of Goods 1. The Seller will deliver the Vesta 9-1-1 system/network, work stations, hardware, software, and related equipment and materials as more particularly described in Exhibit A, (Statement of Work) attached hereto and incorporated herein by reference and hereinafter mutually referred to as "Goods", and will set up and install the same, test the Vesta 9-1-1 system and work stations for errors and defects, correct any errors and defects in the Vesta 9-1-1 system, work stations, software and related materials and equipment, and have the Vesta 9-1-1 VoIP system and integrated work stations ready for training of Licensee's personnel no later than 120 days from date of contract signing. In addition to the foregoing Seller shall also cause the foregoing to be provided to Purchaser free of any errors or defects in operation, capable of providing Beneficial Use to the Purchaser as defined herein not later than 150 days from the date of contract signing. Purchaser is responsible for providing a site that is ready to receive the equipment. Purchase Price 2. The Purchaser will pay for the Goods with the sum of two hundred eleven thousand seven hundred seventeen dollars and fifty five cents ($211,717.55) USD. Side A Upgrade for Geo-diversity $ 862.50 Side B Backroom Equipment $ 27,175.39 Sales Agreement Page 1 of 11 DocuSign Envelope ID:4B1AA7EB-B8B7-4914-AFCE-D22E155BC416 7 CommandPost units $123,095.00 24x7 Remote Monitoring $ 4,848.75 Airbus Field Engineering Services $ 25,000.00 Turnkey Installation $ 17,131.54 Employee Training $ 1,448.00 Shipping $ 1,172.20 Spectracom Netclock $ 10,984.17 Total Price $211,717.55 3. The Seller and the Purchaser both acknowledge the sufficiency of this consideration. In addition to the purchase price specified in this Agreement, the amount of any present or future sales,use, excise or similar tax applicable to the sale of the Goods will be paid by the Purchaser, or alternatively,the Purchaser will provide the Seller with a tax exemption certificate acceptable to the applicable taxing authorities. 4. Payment for the Goods will be made in accordance with the Payment Terms of Clause 23 of this Agreement. Delivery of Goods 5. The Goods will be delivered to the Purchaser. Delivery will be considered complete for the sole purpose of making payment according to the terms of provision 23 herein, upon arrival of all equipment and hardware at a Wireless Communications, Inc. designated location for setup and staging. Wireless Communications will provide the Orange County with a complete packing list and the opportunity to inspect the equipment upon arrival. The method of shipment will be within the discretion of the Seller. Risk of Loss 6. The risk of loss from any casualty to the Goods, regardless of the cause, will be on the Seller until the Goods have been delivered into the physical exclusive possession of Purchaser at the designated location for such delivery and inventoried jointly by a representative from both the Seller and Purchaser. Wireless Communications, Inc. will maintain insurance responsibility for goods until delivered to the Orange County Office. Final Acceptance upon delivery of Beneficial Use Sales Agreement Page 2 of 11 DocuSign Envelope ID:4B1AA7EB-B8B7-4914-AFCE-D22E155BC416 7. Anything to the contrary herein notwithstanding, Seller shall notify Purchaser when the hardware and software have been installed and the integrated Vesta 9- 1-1 VoIP system and Vesta work stations have been tested and are ready for Purchaser to begin training as provided for herein. If errors are encountered in the Vesta 9-1-1 system, work stations or software during the set up and installation, Seller shall promptly correct those errors. If Seller is unable to correct such errors or defects which prevent the Beneficial Use of the Goods by Purchaser within a"commercially reasonable time", which term as used herein shall not be construed in any event to exceed 30 days beyond the otherwise required performance of Seller's duties hereunder within 120 days of executing this Agreement, then this contract shall automatically terminate at 11:59PM of the 150th day from the date of contract signing without any need for notice to either party thereof. If such termination shall occur, Seller shall refund within 180 days of the execution of this Agreement to Purchaser, all payments by it for the Vesta 9-1-1 system, work stations, software and related equipment and materials. In the event of termination pursuant to this provision, Purchaser agrees to cooperate in good faith with Seller in providing access to and coordinating with Seller the uninstallation and return of all Goods that were delivered to Purchaser prior to such termination, the costs of which including but not limited to the cost of any uninstallation,packaging, and/or shipping shall be paid solely by Seller. The warranties provided for herein will begin as of the date Purchaser receives Beneficial Use of the equipment. The term "Beneficial Use" as used herein shall be defined as: reception of true and actual 911 calls which includes the delivery of Automatic Number Identification(ANI), Automatic Location Identification(ALI), a mapping data stream, and successful interface of data with the CAD System for a minimum uninterrupted and error free period of 7 days following the completion of installation and training of personnel, provided however that any such interruptions suffered in reception which can be positively attributed to a source not caused by Seller or the Goods shall not qualify as an interruption for purposes of the foregoing definition. Warranties 8. The Seller warrants that(1) the Seller is the legal owner of the Goods; (2) the Goods are free from all liens and encumbrances; (3) the Seller has the right to sell the Goods; and (4) the Seller will warrant and defend the title of the Goods against any and all claims and demands of all persons. 9. The Seller warrants that the Goods will be fit for the purpose for which such goods are ordinarily intended. 10. The Seller warrants that the Goods are now free and at the time of delivery will be free from any security interest or other lien or encumbrance, except the security interest created in this Agreement until the Seller is paid in full. 11. The Seller warrants that the Goods will be delivered free of the rightful claim of any person arising from patent or trademark infringement, and that in the event Sales Agreement Page 3 of 11 DocuSign Envelope ID:4B1AA7EB-B8B7-4914-AFCE-D22E155BC416 of such a claim Seller will defend against and otherwise shall indemnify the County against any loss or damages sustained by the County as a result of said claim. 12. Wireless Communications, Inc. agrees to provide with the included additional consideration, around the clock 24 hour a day, 7 days a week,parts and labor support on all furnished equipment and software for a period of one year from date of acceptance. 13. Seller agrees to represent the Manufacturer's Warranty. All Manufacturer warranties shall apply. 14. EXCEPT FOR THE ABOVE WARRANTIES,NO OTHER WARRANTY (WHETHER EXPRESSED, IMPLIED OR STATUTORY) IS MADE BY THE SELLER REGARDING THE GOODS. Title 15. Title to the Goods will remain with the Seller until delivery to and actual physical receipt of the Goods by the Purchaser or, in the alternative, the Seller delivers a document of title or registrable Bill of Sale of the Goods,bearing any necessary endorsement, to the Purchaser. Notwithstanding anything to the contrary herein, Seller shall insure against any loss or damage to the Goods for so long as it maintains title to the goods as provided hereinabove. Security Interest 16. The Seller retains a security interest in the Goods until paid in full. Inspection 17. Inspection upon the physical delivery of the Goods into Purchaser's exclusive custody will be made by Purchaser at the time and place of such delivery to Purchaser's emergency communications center, or other delivery location identified by Purchaser for delivery. If such inspection yields an issue of Purchaser with the Goods as provided, Purchaser and Seller shall work together in good faith to resolve any such issue, and in no event shall Purchaser be required to tender payment for any invoices received from Seller for such disputed Goods,provided however Purchaser shall pay the remaining balance of any such invoice to the extent the amounts are charged for other Goods to which there is no dispute. Claims 18. Purchaser and Seller may consent in writing to the resolution or provision of certain items not otherwise resolved or provided by signing a written punch list of such items which shall set forth the estimated date of resolution or provision Sales Agreement Page 4 of 11 DocuSign Envelope ID:4B1AA7EB-B8B7-4914-AFCE-D22E155BC416 for each item identified therein. The Purchaser's failure to notify Seller in writing of any issue with or rejection of any item identified on such a punch list and resolved or provided pursuant thereto within 10 days following such resolution or provision thereof shall constitute acceptance of the item as provided and shall constitute a waiver by Purchaser of all claims with respect to such items thereafter. Notwithstanding anything to the contrary contained herein Purchaser may require actual express acceptance of certain items if deemed advisable in its sole discretion to effect an acceptance thereof and neither party shall be required to enter into an extension of this Agreement or the provision of any Goods, services, or other performance provided for herein by such a punch list, and may further restrict the terms of such an extension at the time such punch list is created and signed which shall act as a written modification to this Agreement provided it conforms with the modification provision of this Agreement if any. Excuse for Delay or Failure to Perform 19. The Seller will not be liable in any way for any delay, non-delivery or default in shipment due to labor disputes, transportation shortage, delays in receipt of materials, fires, and accidents. If the Seller, will be prevented because of the foregoing matter from delivering the Goods at the time specified or within 90 days after the date of this Agreement, then either the Seller or the Purchaser will have the right to terminate this Agreement by notice in writing which, in the case of the Seller, will be accompanied by full refund of all sums paid by the Purchaser under this Agreement, or in the case of the Purchaser shall require a full refund by Seller of all sums paid by Purchaser under this Agreement, and the obligation upon Purchaser to work with Seller in good faith to allow access to Seller for any uninstallation, packaging, and/or shipping which may be required to effect a return of any Goods for which any consideration was paid hereunder, the additional costs of which if any shall be Seller's sole responsibility. Remedies 20. The Purchaser's exclusive remedy and the Seller's limit of liability for any and all losses or damages resulting from defective goods or from any other cause will be for the purchase price of the particular delivery with respect to which losses or damages are claimed,plus any transportation charges actually paid by the Purchaser. Notwithstanding anything herein to the contrary, in no event shall either Party's liability to the other party arising out of this Contract in any way exceed the total cost of the Goods as set forth herein. Cancellation 21. The unilateral right to cancel this Agreement is reserved in favor of: 1. The Seller: Sales Agreement Page 5 of 11 DocuSign Envelope ID:4B1AA7EB-B8B7-4914-AFCE-D22E155BC416 1. if the Purchaser fails to pay for any shipment when due without claiming an issue or rejection of such shipment within 10 days of inspecting such shipment as provided for herein. In the event such an issue or rejection is claimed, this cancellation provision shall not apply and the parties shall work together in good faith to resolve any such issues or disputes; 2. in the event of the Purchaser's insolvency or bankruptcy; or 2. The Purchaser: 1. if the Seller fails to deliver the hardware, software, materials, and any other equipment or Goods as provided in this sales agreement together with any attachments hereto; 2. in the event of the Seller's insolvency or bankruptcy. Notices 22. Any notice to be given or document to be delivered to either the Seller or Purchaser pursuant to this Agreement will be sufficient if delivered personally or sent by prepaid registered mail to the address specified below. Any written notice or delivery of documents will have been given, made and received on the day of delivery if delivered personally, or on the date of mailing if sent by prepaid registered mail: SELLER: 4800 Reagan Drive, Charlotte, Mecklenburg County,North Carolina, 28206 PURCHASER: Orange County Emergency Services, Attn: Director, 510 Meadowland Drive, PO Box 8181, Hillsborough,NC 27278-8181 Additional Provisions 23. Payment Terms: Customer agrees to make the following payments: 25% of Project Total is due with purchase order and written notice to proceed or soon thereafter. . 25% of Project Total is due upon physical delivery to Wireless Communications, Inc. 20% of Project Total is due upon physical delivery to Orange County. 20% of Project Total is due upon physical installation at Orange County. Final 10% of Project Total is due upon final acceptance by an Orange County representative. Sales Agreement Page 6 of 11 DocuSign Envelope ID:4B1AA7EB-B8B7-4914-AFCE-D22E155BC416 General Provisions 24. The rule of construction against the drafter of a legal instrument shall not apply to this Agreement which has been negotiated at arms-length between the parties hereto. 25. Headings are inserted for convenience only and are not to be considered or relied upon when interpreting or construing the meaning of the terms of this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa. 26. All representations and warranties of the Seller contained in this Agreement will survive the closing of this Agreement. 27. This Agreement including the rights and duties hereunder shall not be assignable in whole or in part by either party without the prior written consent of the non-assigning party thereto, and any attempted assignment hereof shall be void. 28. This Agreement cannot be modified in any way except in writing signed by all the parties to this Agreement, and in such event shall be effective as against the Purchaser only if executed by a duly authorized representative of Orange County. 29. This Agreement will be governed by and construed in accordance with the laws of the State of North Carolina, including the North Carolina Uniform Commercial Code and the Seller and the Purchaser hereby attorn to the jurisdiction of the Courts of the State of North Carolina. 30. Except where otherwise stated in this Agreement, all terms employed in this Agreement will have the same definition as set forth in the Uniform Commercial Code in effect in the State of North Carolina on the date of execution of this Agreement. 31. If any clause of this Agreement is held unconscionable by any court of competent jurisdiction, arbitration panel or other official finder of fact, the clause will be deleted from this Agreement and the balance of this Agreement will remain in full force and effect. 32. This Agreement will inure to the benefit of and be binding upon the Seller and the Purchaser and their respective successors and assigns. 33. This Agreement may be executed in counterparts. 34. Time is of the essence in this Agreement. 35. This Agreement constitutes the entire agreement between the parties and there are no further items or provisions, either oral or otherwise. Sales Agreement Page 7 of 11 DocuSign Envelope ID:4B1AA7EB-B8B7-4914-AFCE-D22E155BC416 36. This contract has been pre-audited in accordance with the provisions of North Carolina law. 37. Standing& Authority: Seller represents to Purchaser that Seller is a Corporation duly organized, validly existing, and in good standing under the laws of the State of North Carolina. Seller is qualified to transact the business contemplated herein within the state of North Carolina, and has full power and authority to execute, deliver, and perform this Contract, and doing so will not violate any provision of law or contravene any provisions of its internal governing documents. This Contract and the performance thereof by Seller have been duly authorized by Seller to the extent that no further authorization of any third party is necessary to legally bind Seller hereto, and this Contract together with any accompanying documents being executed by Seller, have been duly executed on behalf of Seller and constitute the legal, valid, and binding obligation of Seller, enforceable in accordance with the terms of this Contract. 38. Alternative Dispute Resolution: The parties hereby acknowledge and agree that any and all controversy, claim, dispute, or conflict whatsoever arising out of or relating to this Contract, or the breach thereof, shall first be submitted to a process of non-binding dispute resolution called Mediation (as further defined hereinbelow). a. Mediation is that process which is described by North Carolina in its Alternative Dispute Resolution Program through the Dispute Resolution Commission. The parties agree that they will attempt to agree on a North Carolina Certified Superior Court Mediator with the understanding that this list is maintained by the North Carolina Dispute Resolution Commission. Should the parties be unable to agree, then that mediator who is next to be assigned on a case by Court Administration in Orange County will be used as the mediator. The parties shall share the costs of mediation equally and the parties agree to mediate in good faith. 39. Cumulative Remedies. Each right, power, and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise. 40. Waiver. The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not waiver such party's right to seek redress at a later date in the absence of written consent to such waiver. Sales Agreement Page 8 of 11 DocuSign Envelope ID:4B1AA7EB-B8B7-4914-AFCE-D22E155BC416 41. Duplicate Execution: This Agreement may be executed in duplicate copies each of which shall be deemed an original copy of this Agreement. 42. Compliance with Laws. Provider shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all anti-discrimination laws. By executing this Agreement, Provider affirms Provider is in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes and certifies that they have not been identified nor utilized the services of any subcontractor on the list created by the State Treasurer pursuant to G.S. 147-86.58. Where applicable, failure to maintain compliance with the requirements of Chapter 64, Article 2 or §147-86.58 of the North Carolina General Statutes constitutes Provider's breach of this Agreement. 43. Non-Appropriation. Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non-appropriation of public funds. It is expressly agreed that County shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement,but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County's statutory authority, mandate and/or mandated functions, by state and/or federal legislative or regulatory action, which adversely affects County's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to Provider of such limitation or change in County's legal authority. 44. Signatures. This Agreement together with any amendments or modifications may be executed electronically. All electronic signatures affixed hereto evidence the intent of the Parties to comply with Article 11A and Article 40 of North Carolina General Statute Chapter 66. IN WITNESS WHEREOF the parties on the day and year first written above have caused this Sales Agreement to be executed in their corporate names and capacities intending for the terms hereof to legally bind their corporations thereto, and further intending the placement of their signatures on this document to constitute the placement of their respective corporations legal SEAL hereupon conveying therewith all the rights and remedies that the placement thereof shall have under the laws of the state of North Carolina. Sales Agreement Page 9 of 11 DocuSign Envelope ID:4B1AA7EB-B8B7-4914-AFCE-D22E155BC416 [SIGNATURE PAGE TO FOLLOW] ORANGE COUNTY: WIRELESS COMMUNICATIONS: DocuSigned by: ary \ /^--DocuSigned by: Bye 06379048735E177.._ BJ Bonnie Hammersley, County Manager ���� P � Orange County,North Carolina Printed Name and Title Greg Stephan DocuSigned by: Attest: X90... Melissa Allison(Orange County Manager's Office) [SEAL] Sales Agreement Page 10 of 11