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HomeMy WebLinkAboutbocc.con.199.2007CLERK'S CHECK LIST FOR CONTRACTS SUBMITTED TO CLERK AND RECORDER FOR SCANNING/ARCHIVING CONTRACT #: 199-2007 Originating Department/Division: Communications Contact Person: Mark Gamrat Phone #: 920 5317 Project Name: Communications Logging Recorder r ^ BOCC AGENDA ITEM ®STAFF AUTHORIZED SIGNATURE (BOCC signature required) (per Revised Procurement Code 7/2005) Check procurement type: ^None ^Informal ^Formal ®Sole Source ^Emergency ^State Bid ^ Check Contract Tvpe: Dollar Amount: $49,621 ^ Services/Maintenance ^License/Use ^Lease ^Construction ®Goods, Equipment, Supplies ^ Other (e. g. revenue) r Budget Line Item/Ledger Number 119.35.00994.86640 ^Employment (for county employees) ^Intergovernmental Agreement (Requires BOCC Action) ^Non-Profit ^Quasi-Public ^Grant Agreements (Requires BOCC Action) ^Change Order/Contract Amendment Contractor/Business NICE Systems, Inc Systems, Inc Contract Execution 12/28/07 acceptance Automatic Renewal N/A Complete Legal Name: NICE Contract End Date: 90 days after Term of Contract: All Contracts should be proofed for the following: ®No Pages Missing ®If a Page is Left Intentionally Blank -Note on Page ®Page numbered consecutively ®All Signatures Affixed ®All Dates Filled In ®All Other Blanks Filled In ®All Exhibits Attached ®All Legal Descriptions Attached ~~fappropr~ate> ®Notice of Award/Proceed Attached (if appropriate) ®Special Instructions for Finance Department: ®Sent to Clerk and Recorder for Scanning/Archiving ®Authorized Staff Person's Name: Mark Gamrat ®Warranty, if applicable BY CHECKING ABOVE AND ENTERING NAME, THE AUTHORIZED STAFF PERSON INDICATES THAT DOCUMENT HAS BEEN PROOFED AND READY FOR SCANNING. ~ Q~s MEMORANDUM TO: File FROM: Mark Gamrat RE: Logging Recorder -SOLE SOURCE DATE: December 27, 2007 SOLE SOURCE PROCUREMENT A contract maybe awarded for a property, service, or construction item without competition when the authorized procurement officer and the County Manager or his/her designee determine in writing that there is only one acceptable source for the required property, service, or construction item. The County Manager's approval must be obtained in advance of any sole source project/purchase. Pitkin County Procurement Code Section 3- 104. Description of Project/Purchase: The project is to replace our current logging recorder for the Communications Department. The logging recorder records all phone lines (911 and admin) and all radio channels. The vendor of our current logging recorder, Dictaphone, was bought out be a company called NICE. NICE is a logging recorder company. NICE will sunset all Dictaphone products. The end of any software development (hot fixes, upgrades, etc.) will be March 1, 2008. The end of support will be March 1, 2010. Budget: Budget line item #: 119.35.00994.86640 Reason for Sole Source: NICE has partnered with Motorola for logging recorders. The State Digital Trunked Radio System (DTRS) will have a NICE logging recorder with each Zone Controller across the State. There are approximately 5 Zone Controllers. We can tie in our logging recorder into the State DTRS recorders. Pitkin County's role in the State DTRS will be expanding as time goes on. The State DTRS will allow the Aspen/Pitkin County Communications Center to talk to anyone one of our Public Safety resources anywhere in the State, as long as they have a State DTRS radio. Having access to the State DTRS recorders will allow us to obtain recorded radio traffic, if needed. An example of this would be one of our Sheriff's Deputies or Ambulances' witness an accident or crime and the radio traffic will be part of the report. Also, our current VHF radio system is Motorola equipment. Contractor Contacted: Karl Hammes. He is the sales representative for Dictaphone and NICE. Authorized Signature ~ ~ ~ ~,/~. County nager Note: When a contract is obtained, complete the Clerk's check list. NICE Systems, Inc. 301 Route 17 North, 10`~ Floor, Rutherford, New Jersey 07070 PURCHASE AGREEMENT 1. Scope. County of Pitkin, Colorado ("Customer") named on the sales purchase order ("Purchase Order") to which this Purchase Agreement is attached ("Agreement") and into which this Agreement is incorporated by reference agrees to purchase from NICE Systems, Inc. ("NICE") and NICE agrees to sell to Customer equipment ("Equipment"), licenses to the NICE Tproprietary software ("NICE Software") and licenses to third party software ("Third Party Software") (collectively referred to herein as "Products"), as more fully described in the applicable Purchase Order attached hereto. Use of any NICE Software and/or Third Party Software shall be governed by the terms of the license agreements which accompany the delivery of such NICE Software and/or Third Party Software. space for storage of the Products and any materials incident to installation, and shall assume all risk of loss in connection therewith. TO THE EXTENT ALLOWABLE BY I.AW, CUSTOMER SHALL INDEMNIFY NICE AGAINST ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF THE CONDITION OF THE STORAGE SITE AND INSTALLATION SITE FOR THE PRODUCTS, UNLESS SUCH LOSS, DAMAGE OR CLAIM IS DIRECTLY CAUSED BY NICE'S NEGLIGENCE OR INTENTIONAL MISCONDUCT. Customer shall obtain at its cost and keep effective all permissions, licenses and permits, if any, whenever required in connection with the installation and/or use of the Products and the site where the Products will be situated 7. Warranty 2. Fees and Purchase Order. The fees for the Products, which include the cost of Equipment, license fees for the NICE Software and Third Party Software, and shipping, delivery, professional and related installation services (professional and related installation services shall be collectively referred to herein as the "Professional Services") and any other charges applicable thereto (collectively, "Fees") shall be set forth on the Purchase Order and payable to NICE in accordance with Section 3 below. The Purchase Order shall be governed by this Agreement and, if any terms on a Purchase Order conflict with this Agreement, this Agreement shall prevail. The Purchase Order shall be subject to final approval by NICE within ten (10) business days of receipt of such Purchase Order. If Customer submits a Purchase Order with no requested delivery date, then the requested delivery date shall be deemed no later than one hundred eighty (180) days from the date of the purchase order. 3. Payment Terms. Customer shall pay any Fees or other costs due hereunder in U.S. dollars, in full within thirty (30) days of Customer's receipt of invoice. NICE is not obligated to extend any credit to Customer and reserves the right, in NICE's sole discretion, to revoke any credit extended. Any amount due to NICE which is not paid within thirty (30) days of the date of receipt shall accnre interest at one and one- half percent (1'h%) per month, or such lesser amounttrequired by law, assessed from the date of the receipt of invoice through the date of payment. Payment of Fees shall be made in accordance with the following: NICE shall invoice Customer: (i) For Products, including, but not limited to, shipping and delivery charges, upon shipment by NICE to Customer and (ii) For Professional Services, upon the Professional Services having been rendered. 4. Taxes. Customer shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, state or otherwise, however designated, but excluding taxes on NICE's income, which are levied or imposed by reason of the transactions contemplated by the Purchase Order. Without limiting the foregoing, Customer shall promptly pay to NICE an amount equal to any such taxes actually paid, or required to be collected or paid by NICE. If Customer, at any time, claims that its purchase is exempt from any taxes, including without limitation sales taxes, it shall be Customer's responsibility to provide NICF, with the appropriate tax exemption certificate(s). NICE reserves the right to charge Customer for the taxes required to be paid until proof of exemption acceptable to NICE is provided to NICE by Customer. 5. Delivery and Title to Products. After receipt of the Purchase Order executed by both parties hereto, on the date set forth in such Order, NICE shall deliver the Products purchased in such Purchase Order to the site designated in such Purchase Order ("Customer Site"). Customer shall be responsible for all shipping and insurance costs. The price shown on the Purchase Order and all transportation provided hereunder are F.O.B. NICE's premises in N~w Jersey ("F.O.B. Site"). Title and risk of loss to the Products shall pass to Customer immediately upon the Products leaving the F.O.B. Site. If NICE pre-pays any of the foregoing Shipping Costs, NICE shall invoice Customer for all such Shipping Costs incurred by NICE or its agents, and Customer shall promptly pay such invoice pursuant to the provisions set forth in Section 3 herein. If NICE secures insurance for any Products during shipment of the Products to any site designated b_y Customer, including without limitation the Customer Site, Customer agrees to pay all charges for any such insurance. 6. Installation. Prior to the date agreed by the parties for installation, Customer shall provide NICE or NICE's designated installer with reasonable access to the installation site for purposes of determining site readiness for installation and shall designate an individual on Customer's staff' to serve as a contact person for all site preparation and installation issues. Customer shall undertake, at its own expense, to prepare and make available the installation site for the Products according to NICE 's instructions, which may include specific instructions for each Product. Customer also shall provide at its own expense all labor, equipment and other materials required to move the Products from the entrance of Customer's premises at the Customer Site to the installation site, including without limitation any lifting gear, carpentry, piping, electrical power supply as specified by NICE, power cable access points, telephone access in close proximity to where the Products will be installed, and working conditions as in the opinion of NICE are necessary for the installation of the Products. Prior to and during installation of the Products, Customer shall provide suitable and safe 7.1. NICE warrants that the Products will be free from defects in material and workmanship under conditions of normal use for a period of ninety (90) days after the date of Installation ("Warranty Period"). Should the Products or part thereof tail, at NICE's sole discretion, to be free from defects in materials or workmanship or fail to operate substantially in accordance with NICE's applicable functional specifications, at any time during the Warranty Period, Customer's sole and exclusive remedy shall be, and NICE's sole obligation shall be to, in NICE's sole discretion, repair or replace, or cause to be repaired or replaced, the Products or part thereof at no additional charge to Customer; provided that Customer has promptly reported same to NICE and NICE has, upon inspection, found such Products or part thereof actually to be defective. All replaced parts will become the property of NICE. Any warranty applicable to NICE Software or Third Party Software shall be set forth in the licenses therefor. If the Products or any part thereof is subject to warranty pursuant to Section 7.1 herein, NICE shall at its cost pay for on-site inspection and labor ("Warranty Service"), if such Warranty Service is deemed by NICE to be commercially practicable, and for the costs of any necessary shipment and handling to ship the Equipment or part thereof from Custaner to NICE and from NICE to Customer. If any Products or part thereof: (i) is excluded from warranty pursuant to Section 72 immediately below, (ii) is returned after the Warranty Period; or (iii) is found by NICE, in its sole discretion, not to be defective, Customer shall pay NICE for any costs incurred for shipping and handling and for any Warranty Service at NICE's then prevailing rates or such other rates as may be agreed by the parties in writing in a maintenance agreement. The warranty provided in this Section 7.1 does not include damage to the Products resulting from a cause other than part defect or malfunction, including without limitation: (i) improper storage, misuse or unreasonable use; (ii) neglect, accident, fire, lightning, power or air conditioning failure, unusual physical or electrical stress caused by forces or elements external to the Products, or other hazard; or (iii) installation, testing, operation, maintenance, servicing or modification of the Products or part thereof by anyone other than NICE. The above warranty also does not apply if the original identification marks on such Products or part thereof have been removed or altered. 7.2. THE WARRANTY SET FORTH IN SECTION 7.1 ABOVE 1S THE ONLY WARRANTY MADE BY NICE. NICE MAKES AND CUSTOMER RECEIVES FROM NICE NO OTHER WARRANTY EXPRESSED OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE. THE REMEDY SET FORTH IN SECTION 7.1 HEREIN IS CUSTOMER'S SOLE AND F;XCLUSIVE REMEDY FOR BREACH OF WARRANTY HEREUNDER. 8. NICE Software and Third Party Software. Any use by Customer of any and all software and user documentation provided by NICE in connection with the Products or otherwise shall be subject to and in compliance with any restrictions or other provisions set forth in the license agreement for the applicable software, regardless of whether such license is granted by NICE or a third party. Without limitation of the foregoing, Customer acknowledges and agrees that the license of any software to Customer is a limited right to use such software and does not constitute a sale of such software to Customer, and that all right, title, interest in and to any and all intellectual property therein is and shall remain at all times the property of NICE or the applicable software manufacturer. Customer shall not assign, sublicense, transfer, pledge, lease, rent or share rights under any license agreement provided hereunder, unless expressly permitted under such license agreement. Customer shall treat the software licensed hereunder as Confidential Information (as defined herein), subject to the provisions regarding Confidential Information set forth herein. 9. Cancellations of Purchase Order. Customer may cancel the Purchase Order by delivering to NICE a written cancellation notice ("Cancellation Notice"). Upon cancellation pursuant to a Cancellation Notice, Customer shall be subject to a restocking fee ("Cancellation Restocking Fee") as follows: (i) a fee to Customer of fifteen percent (15%) of the Fees if NICE receives a Cancellation Notice more than fifteen (15) days prior to the confirmed date of shipment; (ii) a tee to Customer of thirty percent (30%) of the Fees if NICE receives a Cancellation Notice between fifteen (15) and ten (10) days prior to the confirmed date of shipment; and (iii) a fee to Customer of eighty percent (80%) of the Fees if NICE receives a Cancellation Notice less than ten (10) days prior to the confirmed date of shipment. After receiving a Cancellation Notice and canceling the Purchase Order, NICF, promptly shall submit a written invoice to Customer specifying the applicable Cancellation Restocking Fees. 10. Confidential Information. To the maximum extent allowable under the laws of the State of Colorado, Customer shall treat as confidential all information Customer: ~/Ti(~/,~ C.~UKi1/Ty Purchase Order Number: Date: ~oZ ~o?z~~ designated by NICE verbally or in writing as confidential, and any other information provided by NICE that in good conscience ought to be kept confidential (collectively, "Confidential Information, shall not use Confidential Information except as set forth in this Agreement, and shall not disclose such Confidential Information to any third party. Confidential Information shall not include information that is required to be disclosed by court order. l L Indemnity by NICE. NICE shall defend or, at its option, settle any claim, suit or proceeding ("Claim") brought by a third party against Customer insofar as such Claim is based on a claim that any Equipment or NICE Software sold hereunder constitutes a direct infringement of any duly issued U.S. patent or copyright, and NICE will only pay the cost and damages finally awarded by a court of competent jurisdiction in any such Claim after exhaustion of all permissible appeals: provided that NICE is promptly informed in writing within five (5) business days after Customer's receipt of such notice, is fumished a copy of each communication, notice or other action relating to the alleged infringement, and is given all authority, information and assistance from Custormer as NICE may require to defend or settle said Claim. NICE shall have sole control of any defense and shall not be responsible for any compromise or settlement made without the prior written consent of NICE. If Customer participates in the defense or settlement of any matter, Customer shall be responsible for its own costs and expenses, including without limitation all legal tees and costs. if any Claim which NICE is obligated to defend has occurred, or in NICE's opinion is likely to occur, Customer agrees to permit NICE, at NICE's option and expense: (i) to procure for Customer the right to continue using the relevant Equipment or NICE Software; (ii) to replace with non-infringing alternates or modify the relevant Equipment or NICE Software so that it becomes non-infringing but its functionality after modification is substantially equivalent: or (iii) to terminate the Purchase Order with respect to the Equipment or NICE Software in question, to accept the return of such Equipment or NICE Software and to reimburse Customer for the Fees for such Equipment or NICE Software, less an amount equal to the Fees therefor as depreciated or amortized by an equal annual amount over a three (3) year period beginning from Installation. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF NICE, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO INFRINGF,MENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE EQUIPMENT OR NICE SOFTWARE OR ANY PARTS THEREOF. The foregoing indemnity shall not apply if the infringement or alleged infringement arises out of (i) NICE's compliance with specifications or designs of Customer or of a purchaser tram Customer; (ii) the Equipment or NICE Software being modified by, combined with, added to, interconnected with and/or used with any equipment, apparatus, device or software not supplied by NICE; (iii) the modification to the Equipment or NICE Software by any person or entity other than NICE; or (iv) misuse of the Equipment or NICE Software. In addition to the foregoing, Customer shall promptly notify NICE in writing of any actual, suspected or apparent infringement of NICE's proprietary rights that may come to Customer's attention. 12. Indemnity by Customer. 12.1. To the extent allowable by law, Customer shall indemnify, defend and hold harmless NICE and its affiliates, and their officers, directors, agents, employees, legal representatives, successors and assigns, and each of them from and against any and all Claims, liabilities, losses, penalties, damages, costs or expenses (including without limitation reasonable legal fees and expenses) (collectively, "Losses") arising out of, in connection with or based upon patent and/or copyright infringement (i) relating to the use or sale by Customer of any Products or part thereoT in any combination, method, process or programming application; (ii) arising out of compliance by NICE or NICE certified technicians with modification specifications furnished by Customer; (iii) based on a Claim that the manufacture or sale of any Products hereunder as modified by, combined with, added to, interconnected with or used with any equipment, apparatus, device or software not supplied by NICE hereunder constitutes such an infringement; and/or (iv) arising out of misuse of the Products. 122. Intentionally omitted. 13. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, NICE SHALL NOT BE LIABLE FOR ANY LOSSES TO PERSONS OR PROPERTY CLAIMED TO HAVE RESULTED FROM THE USE OF THE PRODUCTS PROVIDED HEREUNDER OR TO BE RELA"FED IN ANY WAY TO THE ACQUISITION OF SUCH PRODUCTS. IN NO EVENT SHALL NICE BE LIABLE TO CUSTOMER, ITS EMPLOYEES, AGENTS OR ANY OTHER PERSONS FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL.., SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION LOSS OF USF., LOSS OF OR DAMAGE TO RF,CORDS OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, REVENUE AND/OR PROFITS, SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN ANY EVENT, THE MAXIMUM EXTENT OF NICE'S SHALL NOT IN ANY CIRCUMSTANCES EXCEED THF. FEES ACTUALLY PAID • BY CUSTOMER TO NICE FOR SUCH PRODUCT ACTUALLY GIVING RISE TO LIABILITY TO CUSTOMER HEREUNDER FOR ANY PRODUCT HEREUNDER, LIABILITY, INDEMNITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER NICE HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR SUCH LIABILITY. IN NO EVENT SHALL NICE BE LIABLE FOR ANY CLAIM THAT AROSE MORE THAN ONE (1) YEAR PRIOR TO THE INSTITUTION OF SUIT THEREON. 14. Independent Contractors. It is expressly agreed that N[CE and Customer are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. This Agreement and/or the Purchase Order shall not be construed as authority for either party to act for the other parry in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except to the extent and for the purposes expressly provided for and set forth herein. I5. Force Majeure. A party hereunder shall not be liable for, nor be deemed to be in default by reason of, any delay or failure in the performance of its tasks (or any part thereof) under this Agreement or the Purchase Order, when such delay or failure is caused, in whole or in part, by circumstances constituting force majeure, including without limitation, an act of god, war, riot, strike, fire, flood or failure or delay on the part of subcontractors.. suppliers or carriers, change in governmental regulations, or any other cause or circumstance, direct or indirect, beyond such parry's reasonable control. Such failure or delay, to the extent it retards such party's performance or any other undertaking under this Agreement or the Purchase Order, will extend the time for performing the same for as many days beyond the applicable performance date as is required to correct the effects of such force majeure event. 16. General. This Agreement, the Purchase Order hereunder and any performance related thereto shall be governed by and construed in accordance with the laws of the State of Colorado, except for its conflict of law principles. The parties hereby consent to jurisdiction and venue in the federal and state courts of the State of Colorado. ti is expressly agreed by the parties hereto that this Agreement and the Purchase Order hereunder shall not be governed by the provisions of the Convention on tntemational Sale of Goods. Customer may not assign, without the prior written consent of NICE, its rights, duties or obligations under this Agreement or the Purchase Order to any person or entity, in whole or in part. Customer agrees that NICE shall have the right to assign its rights, duties or obligations under this Agreement or the Purchase Order to any person or entity, in whole or in part, as long as the assignee is capable of adequately performing the rights and duties so assigned, as provided for herein. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any other right hereunder. If any provision of this Agreement is determined to be invalid under any applicable statue or rule of law, the balance of the Agreement shall remain enforceable. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof. This Agreement and attached Schedules constitutes the entire agreement between Customer and NICE with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by an authorized representative of the party against which such amendment, change, waiver, or discharge is sought to be enforced. In the event of any conflict or difference between this Agreement and the Purchase Order attached hereto and incorporated herein, or any other documentation provided to Customer by NICE, this Agreement shall prevail. Sections 3, ~ (solely with respect to risk of loss passing to Customer and indemnification by Customer), 72, 12, 13, 14, 1 ~ and this Section 16 shall survive cancellation of this Agreement or the Purchase Order. NICE SY MS, INC. By: ,~p~~ Name: A.6'E.lfQClF~ Title: GE,A/f~fiNC /~4,,y,S`~E~. Date: ~_~y p~ COUNTY OF PITIjrIN, LORADO gy ~ ). ca..'~'-- Name: ~~C.tC '~M1?/~J~ Title: 1..0a1MlM.) [c.~-T1cYV1 k-~lnf t1Jv'L Datc: 1 Z I2'7 ~ J7 Pitkin County Sheriff Aspen Police BasaR Police Snowmass Vdlape Pofice Aspen Fire Aspen Ambulance ~ Basalt fire $ EMS Snowmass Wildcat Fire d EMS Carbondale Fire 3 EMS Aspen-Pi#Ocin County Communications Cen#er PURCHASE ORDER DATE: January 3, 2008 PURCHASE ORDER NUMBER: 07NIC00139A TO: NICE SYSTEMS, INC ATTN: Karl Hammes Fax: 888 396 3367 Bill to: Aspen/Pitkin County Communications Center 506 E. Main St. Dept. C Aspen, CO 81611 Attn: Mark Gamrat 970 920 5317 uantit Description Price 1 Digital System Logging Recorder $49,621.00 Remarks and Conditions See Contract and Pricing List for details. You may fax the invoice to 970 920 5339 if it is more convenient. Approved: Mark Gam t Communications Director 506 East Main Street, Dept C Aspen, Colorado 81611 970.920.5310 FAX 970.920.5339