Loading...
HomeMy WebLinkAboutIT1990-0145 - Original - MDI Systems, Inc. - Mobile Data Communications System fXc_ PURCHASE OF MOBILE DATA COMMUNICATIONS SYSTEM TERMS AND CONDITIONS OF SALE THIS PURCHASE AGREEMENT made as of the day of March, 1990, between MDI Systems, Inc. (hereinafter "MDI") licens d to do business in the State of Washington, and City of Kent, a Washington municipal corporation (hereinafter "City") . WHEREAS: MDI has developed a digital communications system that operates interactively with PRC Public Management Services' Computer-Aided Dispatching System; and MDI has agreed to sell and install such a system to the City on the terms and conditions set out in this Agreement. THIS AGREEMENT WITNESSES that in consideration of the promises and the obligations of the parties set out in this Agreement, the parties agree as follows: 1.0 Definitions As used in this Agreement, unless the context otherwise requires, the following terms shall have the meanings set out below: (a) "Contract" means this agreement between MDI and the City, as evidenced by the Contract Documents; (b) "Contract Documents" means those documents set forth in Subsection 4.2, which documents collectively and exclusively constitute the Contract; (c) "Contract Price" means the sum not to exceed $200,000, including but not limited to delivery costs to the delivery point and any and all taxes, subject to any adjustment that may be provided for in this Agreement. The exact mix of mobile and portable equipment will be determined during the project by prior written notification from the City to MDI. (d) "Delivery Point" means the designated component installation location at City of Kent Premises; (e) "Documentation" means any documentation, including but not limited to manuals, MDI is obligated to provide to the City, under this Contract, as set out in Attachment D; 1 (f) "FOB" means free on board the location indicated; the Contract price includes all delivery or other costs at the expense of MDI to the location indicated; (g) Functional Specifications" means the functional specifications of the System as set out in MDI Document Number 900.0551 , entitled Proposal to Motorola Communications and Electronics, Inc. for the City of Kent for a Mobile Data Communications system, and as may be amended by written agreement by the parties; (h) "Hardware" means the hardware to be supplied by MDI under the terms of this Contract; (i) "Hardware Service Agreement" means any written agreement entered into by the parties, with respect to service of Hardware; (j) Implementation Document" means the document to be prepared by MDI , and approved by the City, setting out those matters, associated with implementation of the System, that are not capable of resolution at the time of execution of this Agreement, as referred to in Section 3; (k) "Premises" means those physical sites, or vehicles, under the control of the City, in which the various components of the System are to be installed; (1 ) "Products" means the hardware and software to be supplied by MDI under the terms of this Agreement; (m) "Proposal " means the proposal of MDI for a MDI communications system, dated April 28, 1989 and numbered 900.0551; (n) Purchase Order means a purchase order, in respect of the System, issued by the City to MDI ; (o) "Services" means all services to be performed by MDI under the terms of this Agreement; (p) "Software" means the computer-based programs to be furnished by MDI to the City, consisting of operating system and application software, as described in the User Software License Agreement; (q) "Software Service Agreement" means any written agreement entered into by the parties, with respect to service of the Software; (r) "System" means the MDI supplied communications system, exclusive of CAD application software provided by PRC, the hardware and software components of which are described in Attachment A, resulting from the performance of Services and the installation and turn on of Products; 2 (s) "System Acceptance Date" means date of City acceptance of the System, as defined in Subsection 13.4; (t) "User Software License Agreement" means the license to be granted by MDI to the City, with respect to the Software supplied by MDI to the City under this Agreement. 2.0 Purchase and Sale of System MDI will sell the System to the City and the City will purchase the System from MDI, upon the terms and conditions set forth in this Agreement. 3.0 Implementation Document 3.1 After execution of this Agreement, MDI shall meet with the City and develop with and deliver to the City the Implementation Document, which shall set out in detail those matters, associated with, and necessary for, the implementation of the System, which are not capable of resolution at the time of execution of this Agreement. Examples of such matters include, but are not limited to: (a) computer room layout; (b) base site specifications; (c) implementation schedule. Such a schedule will take precedence over any schedule for implementation of the System appearing in the Proposal . (d) acceptance test procedures. MDI will prepare acceptance test procedures which will demonstrate that the System delivered is as represented by MDI in the Contract Documents. These procedures shall , at a minimum, include the following: (i) deliverables verification test procedures; (ii) Hardware and Software functionality test procedures; and (iii) communication link verification test procedures. 3.2 Within a reasonable period of time from receipt of the Implementation Document, the City will , in writing, approve of the Implementation Document, which approval will not be unreasonably withheld, and deliver such approval to MDI. 4.0 Contract Documents and Their Precedence 4.1 MDI shall be responsible for delivering any materials, labor, equipment, consultation, software or any other item required to install a complete and operational Mobile Data Terminal (MDT) system as specified in the terms of the Contract Documents. 3 4.2 The following documents are attached by reference and shall be considered as included in this agreement as contract documents. In the event of any conflict in the definition or interpretation of any work responsibility, service, schedule or completeness of work between this Contract and these Attachments, or between Attachments, said conflict or inconsistency shall be resolved by giving precedence first to this Contract and any amendments to this Contract and then according to the following contract document priority: (a) the Implementation Document; (b) City's letter of October 10, 1989 stating the acceptance or rejection of exceptions to the Specification taken by MDI in it's Proposal . (c) City's letter of notification to MDI of its intent to proceed with Contract, dated September 8, 1989. (d) Addendum to Specifications for an Mobile Data Terminal System, published by the City of Kent on March 31, 1989. (e) Specifications for an Mobile Data Terminal System, published by the City of Kent on February 17, 1989. (f) Proposal for an Mobile Data Terminal System received from Mobile Data International on April 28, 1989. (g) User Software License Agreement. In the event of an inconsistency between or among Contract Documents, the priority of documents shall be in the order set forth above. 5.0 Request for Changes The City shall deliver to MDI, in writing, any requests for additions, modifications or changes to the System. Provided the request is within the general scope of the Contract, MDI shall , within a reasonable period of time from receipt of request, issue to the City a written quotation detailing the effect, if any, on the implementation schedule and the Contract Price. If the City does not accept the quotation, in writing, within ten days of receipt of the quotation, the quotation shall be deemed to have been withdrawn. If the City accepts the quotation in writing, this Agreement shall be deemed to be amended in accordance with the quotation and the parties shall set out, in writing, to be signed by the parties, the amendment agreed upon as above. The City shall not make payments to MDI for any changes to this contract that were not authorized in writing in advance by the City. A waiver of any one term or condition shall not be deemed to be a waiver of any other term or condition of this contract. 4 6.0 Purchase Orders Any Purchase Order issued in respect of this Agreement will be subject to the terms and conditions contained in this Agreement and, in the event of any inconsistency between this Agreement and such Purchase Order, this Agreement will govern unless MDI expressly in writing consents to a term of the Purchase Order overriding this Agreement. If any Purchase Order introduces a term or condition not covered by this Agreement, then MDI shall not be bound by such term or condition unless MDI expressly in writing consents to such term or condition. 7.0 Delivery Charges, Taxes, etc. MDI is responsible for any and all transportation, delivery, insurance, and any other charges associated with delivery of the Products to the Delivery Point. 8.0 Risk of Loss Risk of loss or damage to the Products will pass to the City upon installation at City of Kent facilities. 9.0 Insurance 9. 1 MDI shall file with the City, through the City Clerk, a Certificate of Insurance issued by its insurance carrier (a facsimile of an insurance policy is unacceptable) evidencing a policy of Worker's Compensation Insurance on Contractor's employees, in force for the entire term of the Contract. Said Certificate(s) shall contain therein, or have attached thereto by endorsement, the provision that cancellation of said policy can be effected only on 30 days written notice thereof sent to the City Clerk by registered mail . In any event, MDI is at all times required to maintain all insurance as set forth herein. The City shall be named as additional insured with no exceptions. Prior to commencing installations, MDI shall furnish evidence of insurance coverage to the Owner at least in the sums below: (1) Bodily Injury: $1,000,000 each accident. (2) Property Damage: $1,000,000 each accident. (3) Worker's Compensation: Statutory Limits. (4) Or; $1,000,000 all risks inclusive. 9.2 The City shall provide and maintain insurance on the Products in an amount not less than their full insurable value, with loss payable to MDI and the City as their interests may appear, from the date that risk of loss passes to the City, until such time as title passes to the City and the Contract Price has been paid in full . 5 10.0 Delivery of Products and Documentation 10.1 MDI will deliver the Products and Documentation to the Delivery Point no later than the dates agreed upon by the parties for the delivery of these items and will pay all costs of transportation, taxes, duties and any other charges connected with such delivery and all charges for insurance, while the Products and Documentation are in transit to the Delivery Point. 10.2 The City shall inspect all Products and Documentation upon receipt of them and shall notify MDI immediately when there is evidence of shipping loss or visible physical damage. MDI shall file all claims with the carrier when there is evidence of such loss or damage. 11.0 Title To and Security Interest in the System 11 .1 Until the Contract Price is paid in full , MDI shall retain title to and a security interest in, the System, and the System shall remain personal property regardless of the manner of its attachment to any other property. The City shall perform all acts, execute and deliver all documents that MDI may request to perfect and retain such security interest. 11 .2 Until the Contract Price is paid in full , the City will neither create, nor permit to exist, any encumbrances or security interests upon the System, other than the security interest created in Subsection 11 .1, and will promptly pay the full amount of, and discharge, all encumbrances and security interests which arise in respect of the System. 12.0 Contract Price and Payment Terms 12.1 The Contract Price is inclusive of any duties, clearance charges, and federal , state or value-added taxes (other than tax payable on the income of MDI) which may be applicable to the supply of the subject matter of this Agreement and is FOB the Delivery Point. 12.2 Upon receipt of invoices from MDI, the City will pay the Contract Price to MDI as follows: 80% No later than 30 days after delivery and installation of the equipment and the receipt and approval of appropriate and complete invoices. 20% No later than 30 days after acceptance of the system by the City and the receipt and approval of appropriate and complete invoices. 6 80% payment as described above will only be made for each sub-system upon the complete delivery and installation of each major sub-system as described below (this listing does not imply any preferred order of installation) . In no case shall payment be made for equipment not delivered or installation not performed. Transmitter Site Dispatch Center Equipment Mobile Equipment Portable Equipment 12.3 MDI shall provide the City invoices for any payments due under this contract. All invoices shall be rendered in duplicate. Payments shall be made no later than 30 days after receipt and approval of the invoice. Invoices shall detail the separate items or deliverables being charged and clearly show the City's Purchase Order number. 12.4 The City will make payment of invoices by bank draft or such other means as MDI may approve in writing. 13.0 Acceptance Testing 13.1 MDI will submit an Acceptance Test Plan (ATP) thirty (30) days prior to the commencement of the system test. The City will then have thirty (30) days within which to, in writing, approve, conditionally approve or disapprove the proposed ATP. The City will accept the system when it has operated continuously for a 30-day period without a failure, as defined in the ATP, after the successful completion of the Acceptance Test. 13.2 The City shall , within a reasonable period of time from completion of acceptance testing, identify in writing any deficiencies in the System. MDI shall diligently attempt to cure any deficiencies identified by the City, immediately upon receipt of notice of such deficiencies. 13.3 Upon completion of acceptance testing, the delivery and performance by MDI of the Services, and the curing of any deficiencies in the System, identified by the City in writing, the City will indicate its acceptance of the System by executing and delivering to MDI a certificate of acceptance. The City will not reject the System solely for the reason that it fails to conform with the specifications, requirements and functions set out in the Contract in an insignificant respect, provided that MDI cures such insignificant non-conformity with reasonable dispatch after receipt by MDI of notice in writing of such non-conformity. 7 13.4 System Acceptance Date shall be the earliest of the following dates: (a) the date of the certificate of acceptance; (b) the date when the System has been installed and the City is putting the System to use in a manner which clearly exceeds the requirements of testing the System; or (c) the date which is 60 days from the date agreed upon for the completion of the acceptance testing, if either of the following applies: (i) MDI demonstrates during the 60 day period that the delivery, installation and functioning of the System complies with and incorporates the specifications, requirements, functions and representations set out in the Contract; or (ii) MDI is prevented during this period from performing conformity testing by some failure on the part of the City to perform any of the obligations of the City that are prerequisites to the performance of conformity testing by MDI. 14.0 Warranty 14.1 MDI warrants that it will repair or replace without charge to the City, any equipment or part thereof, that fails in operation during normal and proper use within 12 months from the System Acceptance Date (or from the date of installation in respect of Hardware supplied after System Acceptance Date) , and that the Hardware supplied under this Agreement will be free of defects resulting from defective materials or workmanship. MDI shall provide warranty service either at a MDI service center or the City's site, at the option of MDI. If defective Hardware is returned to MDI, MDI will bear all costs of returning such Hardware to a MDI service center and delivering the repaired or replacement Hardware to the City. The City will be responsible for all damage to returned Hardware or components resulting from improper packing or handling by the City. 14.2 The warranty provided above is a limited warranty and does not apply in the following circumstances: (a) the Hardware has been damaged by misuse, accident, negligence or failure to provide and/or maintain the environmental requirements for such Hardware specified by MDI; (b) the Hardware has been damaged by modifications, alterations or attachments, made by the City, and not authorized by MDI ; or 8 (c) the Hardware has not been operated in accordance with MDI's instructions. 14.3 MDI warrants the Software according to the terms and conditions of the warranty set out in the User Software License Agreement. 14.4 Except as agreed to in Sections 6.2 and 6.3 of the Specification, MDI disclaims and excludes any implied warranty of merchantability and any warranty of fitness for a particular purpose. The City acknowledges that there are no warranties that extend beyond the warranties described in this Agreement, and that the warranties in Subsections 14.1 and 14.3 are not transferable, except at the City's option, may be transferred to its regional dispatch facility, Valley Communications Center. 15.0 Remedies of MDI 15.1 If the City fails to make payments when due, the following shall apply: (a) MDI may withhold further delivery of Products and Services until the default is remedied; and (b) all warranties and obligations of MDI relating to the Products shall be suspended until such default is remedied. 15.2 If the City fails to pay an invoice within 30 days of the receipt of a proper invoice, MDI may charge the City interest on the overdue amount, from the date such amount became due, at the rate of the lesser of 1 .5% per month, compounded monthly (yielding an equivalent rate of 19.56% per annum) or the maximum interest rate permitted by applicable law. 15.3 The rights granted to MDI under this Agreement shall be cumulative and are in addition to rights provided to MDI by law or otherwise. To the extent permitted by law, MDI may exercise its rights concurrently or separately and the exercise of any one remedy shall not be deemed an exclusive election of such remedy or to preclude the exercise of any other remedy. 16.0 Remedies of the City 16.1 If a petition in bankruptcy shall be filed by or against MDI or MDI shall be abjudicated a bankrupt or insolvent or shall have made an assignment for the benefit of creditors or shall take advantage of any law for the benefit of debtors or if any action is commenced against MDI to cause its assets to be placed under trusteeship or receivership or liquidated for the benefit of creditors or if MDI voluntarily or by operation of law shall lose control of the operation of its business, except pursuant to a bona fide merger or acquisition, then the City may immediately terminate this Agreement by notice to MDI, without further liability. 9 16.2 The rights granted to the City under this Agreement shall be cumulative and are in addition to rights provided to the City by law or otherwise. To the extent permitted by law, the City may exercise its rights concurrently or separately and the exercise of any one remedy shall not be deemed an exclusive election of such remedy or to preclude the exercise of any other remedy. 17.0 Limitation of Liability 17. 1 All work to be performed under this Contract shall be completed, and the system will be ready for operation, within a project schedule to be determined between the City and MDI upon execution of this Contract. In no case however will the completion date be more than 180 calendar days from the date of Notice to Proceed by the City, except as allowed for in Section 27 of this Contract. Such Notice to Proceed will not be issued by the City until appropriate transmitter sites have been secured for use in the system. Such Notice to Proceed will not be issued by the CITY to MDI until an appropriate transmitter site has been secured for use in the system and concurrent Notice to Proceed has been issued to PRC. Notice to Proceed will be issued to MDI no earlier than Map 1, 1990 and no later than May 31, 1990. Failure on MDI's part to comply with the completion date shall result in a payment as 1 iquidated damages for the damage to the City due to the del ay of $250 per day for every day beyond the completion date. Such liquidated damages shall be assessed until the system is accepted as provided for in this Agreement and the Specifications. Liquidated damages will not be assessed if the system is substantially complete and the City is using the system in its ordinary course of business. The CITY agrees to provide MDI thirty (30) days written notice of its intent to invoke liquidated damages. Liquidated damages will be limited to a total dollar amount of $45,000, which represents 180 days at $250 per day. 17.2 MDI shall protect, indemnify, and save the City, its officers, agents, representatives and employees harmless, including costs, expenses and Attorney's fees, from and against any claim, damage, cost, or liability, for injury or death to persons or to damage or destruction of property arising from or relating to the acts or omissions of MDI , its officers, employees, agents or subcontractors, in the performance of this Contract unless caused by the sole negligence of the City. 17.3 MDI will not be liable to the City or any other person for any of the following: (a) any special , indirect or consequential damage, including lost profits, lost revenues, failure to realize expected savings, or other commercial or economic losses of any kind, even if MDI has been advised of the possibility of such damage; 10 (b) any damage caused by the failure of the City to meet the responsibilities of the City set out in the Contract; or (c) any loss or damage to any property or for any personal injury or economic damage caused by the connection of Hardware to devices or systems not supplied or approved by MDI. 18.0 Installation 18.1 Each of the parties will perform and bear the cost of performing the installation responsibilities assigned to it in Attachment B. 18.2 MDI will supply the City with the information necessary to prepare the Premises for installation of the System. The City shall pay all expenses necessary to prepare a suitable place for installation of each part of the System with all necessary facilities, including electrical and communications wiring. 19.0 Education and Training 19.1 MDI shall provide training and training materials to the City as set out in Attachment C. 19.2 If the City requires training or training materials in addition to that referred to in Attachment C, MDI shall provide such training or materials, upon receipt of written request from the City, on a time and materials basis, at times and places to be agreed upon by the parties. 19.3 The City shall make available a sufficient number of its personnel to be trained for the various jobs connected with the operation and management of the System. 20.0 Documentation 20.1 MDI will provide Documentation to the City as described in Attachment D, which Documentation shall become the property of the City upon delivery. 20.2 The City may reproduce all Documentation provided by MDI to the City, provided that such reproduction is made solely for the internal use of the City and its employees, agents and subcontractors, and that such reproduction is subject to the obligation of confidentiality set forth in Subsection 24.2. 21.0 Service of Hardware and Software Following expiration of the applicable warranty periods, MDI, if requested, will provide, at the rates and terms offered by MDI in its Proposal , service and parts for the Hardware and Software, so long as such service and parts are generally available. 11 22.0 Patent and Copyright Indemnity 22.1 MDI will defend the City from any claim that a Product or Documentation infringes third party proprietary rights and will indemnify the City against any loss, damage and expense, including attorney and court costs, arising from any such claim, provided the City provides prompt notice to MDI of any such claim and further provided that MDI shall have sole control of the defense of any such action and all negotiations for its settlement or compromise. 22.2 Notwithstanding the provisions of Subsection 22. 1, MDI shall have no liability to the City for any claim of infringement where such claim results from any one of the following: (a) combination of Products with hardware and/or software not supplied or authorized by MDI; (b) alteration or modification of Products by or for the City, by a person other than MDI, if a claim of infringement could have been avoided by the absence of such alteration or modification; (c) any hardware or software that is not supplied by or for MDI . 22.3 The foregoing states the entire liability of MDI under this Agreement with respect to infringement of patents, copyrights, designs and other proprietary rights. 22.4 The City shall indemnify and hold MDI harmless against any expense, judgment or loss arising out of, based upon, or in connection with infringement or claims of infringement of any third party proprietary rights which are based upon or results from the following; (a) the City's modification or alteration of any Product; (b) use of any Product in a manner not contemplated by MDI. 23.0 Changes to Products MDI may, without prior approval from or notice to the City, at no cost to the City, make changes to the Products, which do not affect physical or functional interchangeability, or performance at a higher level of assembly, in the following circumstances: (a) when required for safety purposes; or (b) to meet present or future product specifications of MDI. 12 24.0 Proprietary Rights and Confidentiality 24. 1 MDI reserves for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to the Products and to all discoveries, inventions, patent rights, trade secrets, know-how or other proprietary data arising out of work done in connection with manufacturing, installing, testing and operating the Products. 24.2 Each of the parties will keep confidential and protect from unauthorized disclosure by it employees or agents, any confidential information or know-how which may be disclosed to it by, or otherwise learned from, the other party. Information will not be considered confidential if such information can be demonstrated to have been in the public domain prior to its disclosure to the receiving party or to have become part of the public domain by any means other than an unauthorized act of disclosure on the part of the recipient or any of its employees or agents. In the event of any breach of this Section, the party whose information has been disclosed will be entitled as a matter or right to apply to a court of competent, equitable jurisdiction for such relief by way of restraining order, injunction, decree or otherwise as may be appropriate to ensure compliance with this Section. It will be the responsibility of MDI to identify to the City any data to be protected under this section. 25.0 User Software License Agreement With respect to the Software, concurrently with the execution of this Agreement, the City will execute and deliver to MDI the User Software License Agreement. 26.0 Access to Premises The City will provide timely access to all Premises, according to agreed upon schedules, for design, installation and testing purposes. 27.0 Excusable Delays Should MDI be obstructed or delayed in completing delivery or installation as specified caused solely by act or omission of the City, or its other contractors, or by strikes, fires, or acts of God, or by the inability to obtain materials, equipment or labor due solely to Federal Government restrictions then the time of completion shall be extended for such periods as may be agreed upon by the City and MDI. The City will waive liquidated damages which may have accrued from failure to deliver on time, due to any of the above, after hearing evidence as to the reasons for such a delay. 13 28.0 General Provisions 28.1 Neither party will assign this Agreement without the consent of the other party and any attempt to do so will render this Agreement void, except that a party may assign this Agreement to a successor in ownership of all or substantially all of the assets of the assigning party. 28.2 If any provision of this Agreement is wholly or partially invalid or unenforceable, such invalid or unenforceable provision will be severable from the remainder of this Agreement and such remainder will be interpreted as if the invalid or unenforceable provision had not been a part of it. 28.3 MDI, in entering into this Contract, herein agrees that it shall be solely responsible for conformance to, and will abide by, all applicable Federal , State, County and City codes, laws, ordinances, conditions, requirements, rules, and regulations covering public contracts and works of this type. In the event that any litigation should arise concerning the construction or interpretation of any of the terms of this Contract, the venue of such action or litigation shall be in the Superior Court of the State of Washington in and for the County of King, and this Contract shall be controlled by the laws of the State of Washington and the City of Kent. 28.4 The Contract represents the entire agreement between the parties with respect to the subject matter or this Agreement and no documents or representations other than the Contract Documents shall be used in interpreting it. 28.5 This Agreement shall enure to the benefit of and be binding upon the successors and assigns of the parties. 28.6 MDI and the City acknowledge that they have each read this Contract, including all of the attached documents, and understand the Contract and agree to be bound by its terms. 28.7 Any notices required to be given under this Agreement will be given in writing and either mailed by prepaid registered mail or sent by telex or other visible form of electronic media or delivered to the addresses stated below or to such other address as either party may substitute by written notice to the other. Any such notice will be deemed to be received, if mailed, when in the ordinary course of transmission it should have been delivered but in no event later than five business days after the time of mailing, if sent by telex or other visible form of electronic media, upon the date of receipt, and, if delivered, upon the date of delivery. If normal mail service is interrupted by postal dispute or force majeure, notice will be delivered and not mailed. 14 28.8 All communications between the City and MDI related to this Agreement shall be directed through their designated Project Managers. Any changes in these designated contact persons shall be provided to the other party in writing. At the time of execution of this Contract, the designated contact persons are: For the City of Kent: For MDI Systems, Inc. : Lt. Kevin Kearns 11411 Number Five Road City of Kent Fire Department Richmond, B.C. , Canada V7A4Z3 220 4th Ave. So. Attn: City of Kent Project Mgr. Kent, WA 98032 (604)277-1511 (206)859-3360 IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives as of the day and year first above written. City MDI Systems, Inc. Mayor ame Ma , Title) Dan Kelleher, y Date Dat ATTEST: Marie Jensen, y Cler APPROVED AS TO FORM: Sandra Dris oll , City Attorney 15 ATTACHMENT A SYSTEM DELIVERABLES AND PRICING Unless specifically excepted by the terms of the specifications, any parts or accessories ordinarily furnished or required to make the equipment specified a complete operating unit or system shall be furnished by MDI, whether directly mentioned in the Specifications and/or Proposal or not. MDI guarantees that the equipment furnished under this Contract meets all the requirements of the Specification, except as specifically accepted in the City's letter of October 10, 1989, and meets or exceeds the manufacturer's published performance specifications. In addition, all equipment furnished shall fully meet all applicable Federal Communications Commission (FCC) rules and Electronic Industries (EIA) specifications. 16 PLANNED INITIAL INSTALLATION FOR KENT'S MDT SYSTEM FIXED END EQUIPMENT 1 NCP 500 $16, 236. 00 $16, 236. 00 1 DATA BASE $20, 165. 00 $20, 165. 00 1 POWER SUPPLY $3, 500. 00 $3 , 500. 00 1 ANTENNA SYST $2, 100. 00 $2 , 100. 00 1 MANUALS $1,500. 00 $1, 500. 00 -------------- SUB TOTAL $43 , 501. 00 FIXED END INSTALLATION 1 NCP 500 INSTALL $4, 895. 00 $4, 895. 00 1 DATA BASE INSTALL $3, 637. 00 $3 , 637 . 00 1 PROJECT MANAGEMENT $46, 391. 00 $46, 391. 00 -------------- SUB TOTAL $54 ,923 . 00 ------------ TOTAL COSTS $98, 424 . 00 WSST $7,972 . 34 ------------ TOTAL FIXED END (AS BID) $106, 396. 34 MOBILE & PORTABLE EQUIPMENT (W/TAX AS BID) 16 9100-11 $4, 280. 00 $68,480 . 00 2 KDT-840 $3 , 678 . 00 $7, 356. 00 14 9100-11 INSTALLS $135. 00 $1, 890. 00 2 TRANSPORATBLE CONVERSION $1, 200. 00 $2 , 400. 00 -------------- MOBILE AND PORT. TOTAL $80, 126. 00 ------------ PROJECT TOTAL (W TAX) $186, 522 . 34 02/28/90 1toA ATTACHMENT B INSTALLATION RESPONSIBILITIES MDI 1. Install all System components including all cabling and System related wiring exclusive of leased land lines. City 1. Provide all land lines. 2. Provide vehicles for installation of MDT's and radios, and locations at the times agreed upon by the parties. 3. Installation site preparation as below: * power requirements * ambient environment - temperature - humidity - vibration - dust - static electricity 17 ATTACHMENT C i TRAINING AND TRAINING MATERIALS Section 1.10 of the City's Specifications outlines the intentions of the City of Kent regarding Training to be delivered. Details of this attachment will be finalized by MDI and the City in the Implementation Document. i 18 ATTACHMENT D DOCUMENTATION MDI shall supply such Documentation as is customary in their delivery of a system of this type and as called for in the City's Specification. 19 USER SOFTWARE LICENSE AGREEMENT THIS USER SOFTWARE LICENSE AGREEMENT made as of the day of March, 1990, between MDI Systems, Inc. (hereinafter "MDI") licensed to do business in the State of Washington, and City of Kent, a Washington municipal corporation (hereinafter "City") . THIS AGREEMENT WITNESSES that in consideration of the licensing fee paid by the City to MDI at the time of system procurement and other good an valuable consideration now paid by the City to MDI, the receipt and sufficiency of which is acknowledged by MDI, the parties agree as follows: 1.0 Definitions As used in this Agreement, unless the context otherwise requires, the following terms shall have the meanings set out below: (a) "Acceptance Date" means acceptance date of the mobile data communications system, as defined in the Purchase Agreement. (b) "Agreement" means this Agreement and any schedules attached to it; (c) "Computer Equipment" means the computer equipment described in Attachment A by type, model , serial number and location; (d) "Purchase Agreement" means the agreement between MDI and the City, for the sale of a mobile data communications system, dated March 1990; (e) "Software" means object code software listed in Attachment A and any supplements to such software and any other standard object code software, documentation and materials provided by MDI to the City in connection with such software. 2.0 Grant of License MDI grants to the City a revocable, personal , non-exclusive license to use the Software solely on the Computer Equipment, subject to the conditions and limitations contained in this Agreement. The City may use the Software on data processing equipment different from the Computer Equipment while the Computer Equipment is inoperable, provided that such equipment is the Computer Equipment type listed in Attachment A. In the event that the City transfers ownership of the system to its regional dispatch facility, Valley Communications Center, MDI grants the City the right to transfer this license to Valley Communications. 1 3.0 Term The license granted by MDI shall be effective upon execution of this Agreement by the City and shall continue until terminated as provided in this Agreement. 4.0 Termination The license granted by MDI will terminate automatically, without notice, upon the City ceasing to use the Computer Equipment, failing to comply with any of the terms of this Agreement, or upon the City becoming bankrupt, insolvent, having a receiving order made against it, or taking the benefit of any statute for the time being in force relating to bankrupt or insolvent debtors for the orderly payment of debts. Within 72 hours of termination of the license, the City will , at the option of MDI , either return to MDI all Software and any copies of Software, in any form or media, or destroy the Software and any copies of it. MDI may terminate the license granted under this Agreement if, within six months from Acceptance Date, or within any extension of this period provided for in the Purchase Agreement, the City has failed to pay to MDI the Licensing Charge, as defined in the Purchase Agreement and termination shall be effective upon receipt of notice by the City. 5.0 Charges and Payments The charge applicable to the use of the Software by the City has been included in the total contract price in the Purchase Agreement. 6.0 Title and Security Title to the original of any item of Software delivered under this Agreement and any copies made by the City in whole or in part is and shall at all times remain with MDI. However, risk of loss shall pass to the City when the Software has been installed. The City acknowledges that the Software contains valuable information and trade secrets proprietary to MDI and that unauthorized dissemination of the Software (including without limitation disassembly or reverse engineering) could cause irreparable harm to MDI, and thus agrees not to disclose, transfer, provide, or otherwise make available in any form, the Software, the information contained in it, or any portion of it to any person other than the City's employees, without the prior written consent of MDI. The City will use the Software, the information contained in it, or any portion of it, only as permitted in this Agreement. City will take appropriate action, by instruction, agreement or otherwise, with respect to any persons permitted access to the Software, so as to enable the City to hold the Software in confidence and otherwise to satisfy the obligations of the City under this Agreement. 2 7.0 Copies The City shall not make copies of the Software except back-up copies which are necessary for the City's internal data processing needs, for use only on the Computer Equipment. All copies of the Software made by the City, including translations, compilations, partial copies within modifications and updated works, and all rights in patents, copyrights, trade secrets, and other intellectual property rights in the Software, are the property of MDI or its suppliers, and no title to the Software is transferred to the City. The City will reproduce and include all copyright and trademark notices and other propriety legends, on any such copies. The City acknowledges and agrees that the existence of any copyright notice on any item of Software shall not be construed as an admission or presumption that publication of such item of Software has occurred. The terms of this section shall survive the termination of this Agreement. 8.0 Maintenance MDI shall not be responsible for support or field service of Software under this Agreement. Any provision of such maintenance by MDI shall be by separate agreement on MDI's then current terms and conditions therefor and at MDI's then current prevailing rates for such maintenance. 9.0 Software Warranty For 12 months from Acceptance Date, MDI warrants that such a Software item shall be free from reproducible defects that cause the item to fail to conform in a material fashion to published specifications for that item of Software. MDI does not warrant that the operation of such an item of Software will be uninterrupted or error free or that each defect in the item will be corrected. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES FOR THE SOFTWARE THAT IS WARRANTED UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, WHICH OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In the event of a defect that is covered by the foregoing warranty and which occurs during the applicable period stated above, MDI , at its option will either repair or replace the item of Software that contains the reproducible defect, and such action on the part of MDI shall be the full extent of MDI's liability, and the City's exclusive remedy, for breach of the Software warranty. All warranty service will be performed at service locations designated by MDI. This warranty does not cover an item of Software (i ) used in other than its normal and customary manner, (ii) subjected to misuse; or 3 (iii) subjected to modifications by the City or by any party other than MDI without prior written consent of MDI. Non-MDI owned programs are excluded from this warranty but such programs may be subject to the warranty provided by their owner, which warranty will be assigned to the City by MDI upon the City's request. Any breach of this warranty shall be waived unless the City notifies MDI at the address below within the applicable warranty period. 10.0 Patent and Copyright Indemnity MDI agrees to defend, at its expense, any suits against the City based upon a claim that any item of Software furnished under this Agreement directly infringes a patent or copyright and to pay costs and damages finally awarded in any such suit, provided that MDI is notified promptly in writing of the suit and at MDI's request and at its expense is given control of the suit and all requested assistance for defense of the suit. This indemnity does not extend to any suit based upon any infringement or alleged infringement of copyright by the combination of any item of Software furnished by MDI and other elements nor does it extend to any product(s) of the City's design or formula. The foregoing states the entire liability of MDI for patent or copyright infringement related to the Software. 11.0 Limitation of Liability The entire liability of MDI to the City for damages concerning performance or non-performance by MDI under this Agreement, regardless of whether the claim for such damages is based in contract, tort or otherwise, and the City's sole and exclusive remedy, shall be limited to the payment by MDI of actual damages, including attorney's fees and court costs, not to exceed the total charges paid by the City under the Purchase Agreement for the Software that caused the damages or is the subject matter of or is directly related to such claim. IN NO EVENT SHALL MDI OR ITS SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, TIME OR DATA, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS) TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW EVEN IF MDI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 12.0 Assignment The City shall not assign this Agreement or sublicense the Software without the prior written consent of MDI (which consent shall not be unreasonably withheld) except that the City may assign or sublicense to an affiliate or subsidiary of the City. 4 13.0 Notices All formal notices, consent and other communications required or permitted under this Agreement shall be in writing and shall be sent by registered or certified mail , postage prepaid and return receipt requested, or transmitted by telegram or telex if confirmed by such mailing, to the addresses indicated below. Either party may change its address by written notice to the other party. For the City of Kent: For MDI Systems, Inc. : Lt. Kevin Kearns 11411 Number Five Road City of Kent Fire Department Richmond, B.C. , Canada V7A4Z3 220 4th Ave. So. Attn: City of Kent Project Mgr. Kent, WA 98032 (604)277-1511 (206)859-3360 14.0 Entire Agreement This Agreement, together with the purchase agreement, constitutes the complete and exclusive statement of the agreement between MDI and the City, and supersedes all oral or written proposals, prior agreements and other prior communications between the parties, concerning subject matter of this Agreement. 15.0 General This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. No representation or promise relating to and no amendment of this Agreement shall be binding unless it is in writing and signed by both parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any order submitted by the City. MDI shall not be liable for any failure to perform due to causes beyond its reasonable control . No waiver by a party of any breach of any provision of this Agreement shall constitute a waiver of any other breach of that or any other provision of this Agreement. In the event that any of the provisions contained in this Agreement are held to be unenforceable, this Agreement shall be construed without such provisions. No action, regardless of form, arising out of this Agreement may be brought by the City more than one year after the cause of action has arisen. 5 IN WITNESS WHEREOF the parties have executed this Agreement by their duly authorized representatives as of the day and year first above written. CITY OF KENT MDI SYSTEMS, INC. i Dan Kelleher, Mayor (Na e, Title) :;? Dat6 Date ATTEST: Marie Oen City Cl rk APPROVED AS TO FORM: andra Dri Coll , City Attorney 6 ATTACHMENT A OBJECT CODE SOFTWARE Machine Type Software Description Location of Model/Serial No. Model No. Machine P 500 Software 7