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R-84-648 - 10/25/1984WHEREAS, the City has duly advertised for bids for the upgrading of the City's computer system, and WHEREAS, Burroughs Corporation has submitted a proposal to provide the equipment for said upgrade; and WHEREAS, the Council wishes to accept said bid and award the contract for upgrading the computer system to Burroughs Corporation, NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, RESOLUTION NO. C/J 40 TEXAS That the Mayor of the City of Round Rock, Texas, is hereby authorized and directed to execute on behalf of the City, an agreement for equipment sale with Burroughs Corporation for certain computer equipment, a copy of such agreement being attached hereto and incorporated herein for all purposes. RESOLVED this day of , 1984. ATTEST: ity ecretary MI $E ROBIIGSON, Mayor City of Round Rock Burroughs Corporation e�s October 1, 1984 Wayne Feuerbacher, Manager Data Processing City of Round Rock 214 East Main Round Rock, Texas 78664 Dear Wayne, Reply to: BRANCH OFFICE LA COSTA CENTRE SUITE 400 6300 LA COLMA DRIVE AUSTIN, TEXAS 78752 I would like to thank you for the opportunity to bid on you upgrade of your B -900 system. In the attached contract you will find the pricing and terms for the purchase of the tape drive and disk drive and their approppriate controls. If you need any further information please contact me. Sincerely,. W7f—__A Anth`o'ny L. Barnett Marketing Manager CUSTOMER The City of Round Rock 214 East Main (Number) (Street) Round Boric, TeTaq (cal BURROUGHS CORPORATION, Business Machines Group, Burroughs Place, Detroit, Michigan 48232 ( "BURROUGHS "), by its acceptance agrees to sell and CUSTOMER agrees to buy the equipment listed below. ITEM MODEL AND NO. DESCRIPTION B- 9398 -80 80MB Disk Drive MP -1493 Disk Drive Control B - 9498 Tape Streamer MP - 1498 Streamer Control Amount Due: Burroughs Corporation BUSINESS M GROUP AGREEMENT FOR EQUIPMENT SALE (Finn Name) 78664 UNIT LIST QUANTITY PRICE 1 1 1 1 EI NET CASH SALE ❑ INSTALLMENT SALE (Stale) (Zip Code) TOTAL LIST PRICE 16,225.00 918.00 7,875.00 1,360.00 (a) Grand Total List Price $ 26,378.00 (b) Total One -Time Field Installation Charge $ 77.00 Subtotal of items a and b $ 26, 455.00 (c) Plus Applicable Taxes in accordance with Section 7 $ N/A (d) Less Credits: Cash upon execution (Down - Payment) $ Other $ 2 637 80 Other $ Other $ (e) Balance of List Price $ 23, 817.20 (f) Plus Finance Charge $ N/A (g) Total Deferred Balance $ N/A. (h) Deferred Balance to be paid in Consecutive Monthly Installments of $ and a Final Monthly Installment of $ , payable in accordance with Section 5. (i) Plus Contract Processing Charge This Agreement (including the agreements incorporated by reference in Section 17) constitutes the entire agreement, under- standing and representations, express or implied, between the CUSTOMER and BURROUGHS with respect to the equipment and services, and supersedes all prior communications including all oral and written proposals. ACCEPTED: tu, 6, o Burroughs Corporation 1,620 /Z /r CUSTOMER BY ITS SIGNATURE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO ALL ITS TERMS AND CONDITIONS. The City of Roun By By Authorized Signature Aut onzed Signature Title Title Date Date N/A FORM 1914118 (8/82) 1. EFFECTIVE DATE This Agreement shall be effective on the date accepted and executed by an authorized representative of BURROUGHS,' and shall continue in effect until terminated according to its terms. 2. TITLE Title to the equipment shall vest in CUSTOMER upon ship- ment of the equipment to CUSTOMER. BURROUGHS shall retain a security interest in the equipment until the entire balance of the List Price and all other monies payable hereun- der are paid in full. CUSTOMER guarantees to BUR - ROUGHS that all equipment being Traded -In is free and clear of any liens or encumbrances. CUSTOMER will execute upon request, financing statements deemed necessary or de= sirable by BURROUGHS to perfect its security interest in the equipment. CUSTOMER authorizes BURROUGHS to file a copy of this security agreement or a financing statement as a financing statement. A financing statement may be filed with- out CUSTOMER'S signature on the basis of this securit agreement where allowed by law. 3. INSTALLATION (a) Installation, if performed by BURROUGHS, will be per- formed during BURROUGHS normal working hours at no additional charge. If installation or removal of the equip- ment by BURROUGHS is precluded by local law, union agreement or otherwise, BURROUGHS will supervise the installation or removal and CUSTOMER will bear any additional costs caused thereby. (b) CUSTOMER shall prepare the site to meet BUR - ROUGHS installation specifications which have been provided to CUSTOMER and the site shall be ready to receive the equipment at the time scheduled for delivery;. It shall be CUSTOMER'S responsibility to maintain environmental conditions meeting BURROUGHS spec- ifications. � (c) The CUSTOMER shall provide adequate working space within reasonable distance of the equipment for use of BURROUGHS personnel. (d) BURROUGHS shall deliver and install the equipment as soon as reasonably possible. 4. DESTINATION AREA TRANSPORTATION BURROUGHS will arrange for transportation and drayage to the premises at which the equipment is to be located, and CUSTOMER shall pay transportation and drayage charges (Destination Area Transportation Charge) according to ' BURROUGHS published prices in effect at time of delivery. Transportation charges for equipment being traded -in shall be borne by the CUSTOMER and billed in accordance with established Destination Area Transportation Charges ' (DATC). If delivery to the installation site within the CUS- TOMER'S premises cannot be made with equipment normally employed by the equipment carrier, any costs for special rigging (including the cost of insurance) shall be paid by CUS- TOMER. 5. PAYMENT TERMS The receipt or deposit of any monies received by BUR - ROUGHS as a down - payment shall not be construed as ac- ceptance of this Agreement. Down payment, if required, shall be due upon execution by CUSTOMER of this order and shall be returned to CUSTOMER if this order is not accepted. The price(s) and charge(s) stated herein are subject to change without notice, but shall remain firm through the date of delivery providing Burroughs Scheduled Delivery Date is not postponed by CUSTOMER. If an Installment Sale, the first deferred balance payment and Other Charges shall be due on the first day of the month after shipment of the equipment to CUSTOMER. The additional deferred balance payments shall be due on the first day of each month thereafter and shall continue until paid in full. Payment shall be made by CUS- TOMER no later than ten (10) days after receipt of invoice. CUSTOMER shall pay a late payment charge computed at the rate of ode and one -half (11/2%) percent per month on the unpaid amount for each calendar month (or fraction thereat') that such payment is in default. 6. ADDITIONS CUSTOMER may order additional component(s) for its sys- tem(s) as initially listed on the face page or order additional system(s). These additions maybe effected by the issuance of a written order by CUSTOMER, subject to acceptance by BURROUGHS. Prices shall be those in effect when the order is placed, and the order shall refer to and be subject to the terms and conditions of this Agreement, and all terms and conditions of the written order shall be void unless agreed to in a separate writing by BURROUGHS. 7. TAXES CUSTOMER shall pay BURROUGHS any tax (except tax based on net income) on the Agreement, on or measured by the prices, other charges, the equipment, program products, or services furnished, or their use, however designated, levied or based whenever BURROUGHS must pay and/or collect the tax from CUSTOMER according to applicable law, as interpreted by the departmental authorities of the taxing unit. It shall be CUSTOMER'S sole obligation after payment to BURROUGHS to challenge the applicability of any tax. Any personal property taxes assessable on the equipment after shipment shall be borne by CUSTOMER. S. RISK OF LOSS OR DAMAGE (a) CUSTOMER shall assume full risk of loss or damage to the equipment immediately upon its delivery to CUS- TOMER'S location. (b) As long as BURROUGHS holds a security interest in the equipment, CUSTOMER shall: (i) Maintajn the equipment in good operating condition; keep the equipment free from liens and encumbrances; not use or permit use of the equipment in any manner likely to be injurious to it; nor remove or permit removal from original location; not make or permit any alteration without the prior written consent of BURROUGHS; permit inspection by BUR - ROUGHS at reasonable times; and (ii) procure and maintain fire, extended' coverage, van- dalism and malicious mischief insurance to the full insurance value of the equipment, with loss payable to BURROUGHS and CUSTOMER as their interests shall appear. 9. PATENT INDEMNITY (a) BURROUGHS shall defend or settle any suit or proceed- ing brought against CUSTOMER based on a claim that any equipment made to BURROUGHS design constitutes an infringement of any existing United States patent, pro- vided BURROUGHS is notified promptly in writing and is given complete authority and information required for the defense, and BURROUGHS shall pay all damages and costs awarded therein against CUSTOMER, but shall not be responsible for any cost, expense or compromise incur- red or made by CUSTOMER without BURROUGHS prior written consent. (b) If any equipment is, in BURROUGHS opinion, likely to or does become the subject of a claim for patent infringe- ment, BURROUGHS may at its option and expense pro- cure for CUSTOMER the right to continue using the equipment, or modify it to become non- infringing, but if BURROUGHS is not reasonably able to modify or other- wise procure for CUSTOMER the right to continue using it, BURROUGHS will remove the equipment and refund to CUSTOMER the amount paid in excess of a reasonable rental for past use. (c) BURROUGHS shall not be liable for any infringement or claim thereof based upon use of the equipment in combi- nation with other equipment or with software not supplied by BURROUGHS, or with modification made by CUS- TOMER. , • (d) The foregoing states the entire liability of BURROUGHS to CUSTOMER arising from patent infringement. 10. LIMITED WARRANTY (a) BURROUGHS WARRANTS THAT: (i) NO APPLI- , CABLE STATUTE, REGULATION OR ORDINANCE' OF TIE UNITED STATES OR OF ANY STATE HAS BEEN VIOLATED IN THE MANUFACTURE AND SALE OF THE EQUIPMENT; (ii) BURROUGHS HAS TITLE TO THE EQUIPMENT AND THE RIGHT TO SELL IT; (iii) EQUIPMENT PURCHASED UNDER THIS AGREEMENT MAY BE EITHER NEWLY MANUFACTURED, OR ASSEMBLED BY BUR - ROUGHS FROM NEW AND /OR SERVICEABLE USED PARTS (EQUIVALENT TO NEW IN PER- FORMANCE) OR EQUIPMENT WHICH HAS BEEN PREVIOUSLY INSTALLED• AND (iv) THE EQUIP- MENT DELIVERED UNDER THIS AGREEMENT SHALL BE FREE OF DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE AND SERVICE MAINTENANCE FOR A PERIOD OF NINETY (90) DAYS FROM DATE OF INVOICE ON B20 AND SR100 PRODUCTS; AND ONE (1) YEAR FROM DATE OF INVOICE ON ALL OTHER PROD- UCTS, PROVIDED THE EQUIPMENT HAS RE- CEIVED THE NORMAL REQUIRED MAINTE- NANCE SERVICE. NO FREE MAINTENANCE IS INCLUDED IN THIS WARRANTY, UNLESS OTHERWISE SPECIFIED IN THIS AGREEMENT. (b) WRITTEN NOTICE AND AN EXPLANATION OF CIRCUMSTANCES CONCERNING ANY CLAIM THAT THE EQUIPMENT HAS PROVED DEFEC- TIVE IN MATERIAL OR WORKMANSHIP SHALL BE GIVEN PROMPTLY BY CUSTOMER TO BUR - ROUGHS. CUSTOMER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF DEFECT IS EX- PRESSLY LIMITED TO THE CORRECTION OF THE DEFECT BY ADJUSTMENT, REPAIR OR RE- PLACEMENT, AT BURROUGHS ELECTION AND SOLE EXPENSE, EXCEPT THAT THERE SHALL BE NO OBLIGATION TO REPLACE OR REPAIR ITEMS WHICH BY THEIR NATURE ARE EXPENDABLE. (c) NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING CAPACITY, SUITA- BILITY FOR USE, OR PERFORMANCE OF THE EQUIPMENT SHALL BE OR BE DEEMED TO BE A WARRANTY BY BURROUGHS FOR ANY PURPOSE, NOR GIVE RISE TO ANY LIABILITY OR OBLIGA- TION OF BURROUGHS WHATSOEVER. (d) EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, THERE ARE NO OTHER WARRAN- TIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PAR- TICULAR PURPOSE. (e) IN THE EVENT OF EMPLOYMENT BY CUSTOMER OF ANY NON - BURROUGHS ATTACHMENT, FEA- TURE, OR DEVICE ON THE EQUIPMENT, OR ANY PART THEREOF, FURNISHED BY BURROUGHS HEREUNDER, WHICH HAS NOT BEEN APPROVED IN WRITING BY BURROUGHS, BURROUGHS SHALL NOT BE LIABLE UNDER THIS WAR- RANTY. THE APPROVAL OF THE USE OF ANY NON - BURROUGHS ATTACHMENT, FEATURE, OR DEVICE SHALL NOT BE DEEMED TO BE A RE- PRESENTATION, WARRANTY OR UNDERSTAND- ING BY BURROUGHS REGARDING THAT NON - BURROUGHS EQUIPMENT INCLUDING ITS PER- FORMANCE IN CONJUNCTION WITH THE BUR - ROUGHS EQUIPMENT. IL LIMITATION OF LIABILITY (a) IN NO EVENT SHALL BURROUGHS BE LIABLE FOR LOSS OF PROFITS, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY BREACH OF THE AGREEMENT OR OBLIGA- TIONS UNDER THE AGREEMENT. (b) BURROUGHS SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY, IN- STALLATION OR FURNISHING OF THE EQUIP- MENT OR SERVICES UNDER THE AGREEMENT. (c) CUSTOMER shall assume full responsibility for the over- all effectiveness and efficiency of the operating environ- ment m which BURROUGHS equipment and software are to function. (d) No action arising out of any claimed breach of the Agree- ment or transactions under the Agreement may be brought by either party more than two (2) years after the cause of action has accrued. 12. TERMINATION (a) If CUSTOMER fails to make any payment within ten (10) days of its due date, or fails to perform any other obliga- tions hereunder upon thirty (30) days written notice, or should CUSTOMER be or become insolvent or a party to any bankruptcy or receivership proceeding or any similar action affecting the affairs or property of CUSTOMER prior to payment in full of the balance of the List Price and all other amounts payable hereunder, BURROUGHS may: (i) with or without demand or notice to CUSTOMER (if given, notice by mail to CUSTOMER'S address, shown in the Agreement being sufficient) declare the entire amount unpaid immediately due and payable; (ii) enter the premises where the equipment is located and remove (CUSTOMER shall assemble the equip- ment and make it available to BURROUGHS at a place which is reasonably convenient to both parties and permit and assist BURROUGHS in effecting the retaking and removal of the equipment); and (iii) sell any or all the equipment as permitted under appli- cable law. BURROUGHS shall apply the proceeds of sale of the equipment to the payment of the expenses of retaking, storing, repairing and selling the equip- ment, reasonable attorney fees and to the satisfaction of all indebtedness secured under this Agreement. Any surplus shall be paid to CUSTOMER and any deficiency shall be paid to BURROUGHS by CUS- TOMER. (iv) suspend service under any BURROUGHS Mainte- nance Agreement covering said equipment. (b) The remedies provided herein shall be cumulative and shall be in addition to all other remedies provided by law or equity. 13. ASSIGNMENT BURROUGHS may assign this Agreement and convey its interest in the equipment, or assign the right to receive pay- ments without the CUSTOMER'S consent, provided that BURROUGHS obligations to CUSTOMER shall not in any way be diminished. CUSTOMER may not assign this Agree- ment without BURROUGHS prior written consent. 14. SOFTWARE (a) All programs including system software furnished by BURROUGHS, and program products jointly developed by BURROUGHS and CUSTOMER, shall be subject to BURROUGHS Program Products License which is in- corporated herein by reference. CUSTOMER shall be responsible for determining appropriate use and limita- tions of the program products in its operations. (b) In the event that customer makes use of any software programming in connection with the equipment supplied hereunder, which is not provided by BURROUGHS, Customer acknowledges that BURROUGHS has made no representation or warranties with respect to any non- BURROUGHS software, its performance on the BUR - ROUGHS equipment, or the service to be provided with respect to such non - BURROUGHS software, and BUR - ROUGHS shall incur no liability to customer arising out of the use of such non - BURROUGHS software or the fur- nishing of such services. Customer acknowledges that no BURROUGHS software is being furnished to customer by BURROUGHS except pursuant to separate written license agreements between customer and BUR - ROUGHS. FORM NUMBER 1906740 1912763 1906724 1900297 1906849 CHECK CUSTOMERS INITIAL 15. MODIFICATIONS (a) No modification or amendment to this Agreement and no waiver of any provision shall be valid unless in writing, signed by duly authorized representatives of the parties. Any written order or other instrument issued by CUS- TOMER before or after the effective date of this Agree- ment pertaining to the equipment or services provided under this Agreement shall be void, except as otherwise provided in this Agreement. (b) In the event of any changes to the preprinted Terms and Conditions of this Agreement, the duly authorized repre- sentative of BURROUGHS is the Regional Vice President. 16. APPLICABLE LAW This Agreement shall be governed by the laws of the state in which the equipment ordered herein is originally installed. 17. OTHER APPLICABLE AGREEMENTS The following BURROUGHS Agreements are by this refer- ence incorporated in this Agreement, if so checked and ini- tialed by CUSTOMER. TITLE OF AGREEMENT Agreement For Systems Services Description of Systems Service Program Products License and Support Agreement Equipment Maintenance Agreement List of Additional Equipment