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MASTER PURCHASE AGREEMENT It-_";_ ~s · -. prmt Ulited Telqilale - Raida , , AGREEMENT NUMBER 364 MASTER PURCHASE AGREEMENT This Agreement is between UNITED TELEPHONE COMPANY OF FLORIDA, P. O. Box 165000-5000, Altamonte Springs,FI32716-5000("UTF")and City of Clearwater ("BUYER") 10 South Missouri Avenue Located at This Agreement and all terms and conditions of Schedules A and B, the Request for Proposal ("RFP") and the Response to the RFP attached hereto shall govern and apply to any and all Purchase Orders or Forms that Buyer may submit or place with UTF for Equipment. The parties acknowledge, by their initials and signatures, that they have read and understand all terms and conditions set forth in Schedules A and B, the RFP and the Response to the RFP. IN WITNESS HEREOF, UTF and Buyer have executed this Agreement or each has caused it to be executed on their behalf, on the dates indicated below their signatures. This Agreement is not binding until signed by an authorized representative of UTF at its headquarters. BUYER: By: CITY OF CLEARWATER, FLORIDA Elizabe$ ~~ City Manager Rita Garvey Mayor-Commissioner Approved as to form and legal sufficiency: Attest: IJ~ ~~ Pamela K. Akin City Attorney r~~z /L..o.. Cy hia E. Goudeau, . ' City Clerk UTF: D TELEPHONE COMPANY OF FLORIDA By: Darrell Kelley, President Print Name and Title 12/18/95 Date ~()R'. LFK ~ Q ~ ~~ 1iO . . ~ Page 1 of5 1:'/' ,~/" /: .) ( / I TAtwS AND CONDITIONS - SCHEDU$ A 1. Sale of Equipment. UTF shall sell and Buyer shall purchase the Equipment listed on subsequent Purchase Agreements issued by UTF for Buyer. 2. Delivery and Installation. UTF shall deliver, after providing Buyer ten (10) days prior written notice thereof, and shall install and test the Equipment at the location on Buyer's Purchase Orders or subsequent UTF Purchase Agreements. Installation shall be perfonned according to standard telephone industry practice using new materials unless otherwise stated, and shall comply with all applicable laws and regulations. The installation shall include the necessary labor, supervision, tools, and equipment, technical and professional services, mainframe, cabling and associated hardware as required, Buyer training and site cleanup. All of the work shall be in conformance with any plans, specifications, standards and drawings that fonn this Agreement. Buyer's Responsibilities are described in Schedule B. 3. Installation and Acceptance. Once the Equipment is installed and operating according to manufacturer's specifications, UTF shall certify by written instrument to Buyer and Buyer shall sign the Installation and Acceptance form as verifIcation that the installation and testing of the Equipment is complete and that the installed Equipment is in good working order. IF BUYER FAILS TO REJECT THE EQUIPMENT IN WRITING AS UNSERVICEABLE OR NOT IN ACCORDANCE WITH THE CONTRACT WITIllN 7 DAYS AFTER THE DATE OF INSTALLATION AND ACCEPTANCE, BUYER SHALL BE CONCLUSIVELY PRESUMED TO HAVE ACCEPTED THE INSTALLED EQUIPMENT. If Buyer timely rejects the installed Equipment as unserviceable or not in accordance with the Agreement, UTF shall have the right to cure any defects in perfonnance within a reasonable time, taking into account the necessity of procuring replacement Equipment or parts and correcting or modifying the installation of the Equipment. 4. Warranty. UTF will pass any manufacturer's warranty through to Buyer for the period specifIed as Initial Maintenance Period (IMP) or until expiration of the warranty, whichever occurs first, and to the extent permitted or required by existing Agreements between manufacturer and UTF. Should any defects covered by this warranty appear within the warranty period, UTF shall, at its option, repair or replace the defective part or parts at no expense to Buyer. Repair or replacement parts, which shall be furnished on an exchange basis, may be new or used with equivalent-to-new performance. Return parts shall be the property of UTF. UTF's repair or replacement of defective or failed Equipment shall be the Buyer's sole remedy with respect to the warranty. EXCEPT AS EXPRESSLY MADE HEREIN, UTF MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF Page 20f5 MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Manufacturer's warranty shall NOT cover the following: a. Repair or replacement of lost or stolen parts or materials, repair or replacement of parts, materials or software damaged through accident, negligence, abuse, misuse, failure to electrical power, air conditioning or humidity control, riot or other civil disturbance, strike or other labor trouble, sabotage, fire, flood, lightning or electrical storms or other acts of God. b. Failure or malfunction of attached, related, collateral or ancillary equipment not covered by this Agreement. c. Repairing of damaged caused by servicing of Equipment by persons other than UTF or its contractors. 5. Limitation of Liability. UTF shall not be liable for any indirect, incidental, or consequential damages (including lost profits) sustained or incurred in connection with or arising out of the Equipment or services furnished or to be furnished by UTF under this Agreement, regardless of the form of action, whether in contract, tort including negligence, strict liability, or otherwise, and whether or not such damages were foreseen or unforeseen. In no event shall UTF be liable for damages, loss or expenses of any nature whatsoever that may result from the fraudulent or unauthorized use of Equipment, services, or facilities purchased hereunder. 6. Late Pa:rment Charges. If the Buyer does not pay any amount when due, UTF shall be entitled to interest pursuant to Florida Statutes Section 218.70, Florida Prompt Payment Act from the due date until paid. Payment of such interests shall not prejudice any other rights or remedies of UTF provided under this Agreement or by law. In the event Buyer fails to pay any sums when due, or otherwise fails to perform any obligation under this agreement when required, UTF, in addition to all other remedies available to it in law or equity and not in limitation thereof, may at its option: a. Cease installing the Equipment b. Disconnect the Equipment from the public telephone network c. Deactivate the Equipment, or otherwise render the Equipment inoperable until paid the amount due in full d. Enter the Buyer's premises with or without notice and take possession of and remove any Equipment that has not been paid for in accordance with the payment terms and either terminate this Agreement, retaining all sums paid, or dispose of the Equipment, which has not been paid for, for Buyer's account at the best price obtainable at public or private sale with Buyer to remain liable for any defIciency. INITIALS ~~ER ~~b UTF I I TERMS AND CONDITIONS - SCHEDULE A CONTINUED 7. Liquidated Damages. In the event the Buyer repudiates, gives notice of cancellation, or otherwise breaches this Agreement prior to delivery of the Equipment to the installation site, UTF shall be entitled to receive from the Buyer (as liquidated damages, not as a penalty) a sum equal to the direct and verifiable cost and expenses incurred by UTF up to and including the date of repudiation, receipt of the notice of cancellation or breach of the Agreement. These costs and expenses shall not exceed the Total Equipment Purchase Price of Equipment. 8. Miscellaneous. The following terms and conditions shall apply to this Agreement: a. Taxes. The price of the Equipment (including delivery and installation) and maintenance do not include any Federal, State or Local Taxes such as, but not limited to , taxes on manufacture, sales , gross income, receipts, occupation, use, or similar taxes. Where applicable, such tax or taxes shall be payable by Buyer. b. Risk of Loss. Risk of loss of the Equipment shall pass from UTF to Buyer upon delivery to the installation site. c. Title. Title to the Equipment shall pass from UTF to Buyer upon Buyer's payment of the Total Equipment Purchase Price of such Equipment. d. Landlord Consent-Mortgages Consent. Buyer shall be responsible for obtaining any consents that may be necessary from a landlord or mortgagee with the respect to the installation or maintenance of the Equipment. e. Licenses and Permits. Buyer shall be responsible for obtaining any licenses, permits, consents, or approvals from any federal, state or local government which may be necessary to install, possess, own or operate the Equipment. f. Duty to Defend and Indemnify. Each party shall indemnify and defend the other from and against any claim or cause of action, whether for personal injury, property damage (including but not limited to personal injury or property damage suffered by the parties' employees or agents), which arises out of or is related to the performance of this Agreement and which is attributable either to the indemnifying party's negligence or breach of this Agreement, and the indemnifying party shall indemnify and hold the other party harmless from any cost, expenses (including reasonable attorney's fees), awards or judgments in connection therewith. Nothing contained herein shall be construed as a waiver of sovereign immunity. g. Whole Agreement. This Agreement and the attached Schedules and Addendum represent the whole Agreement between the parties and is a final, complete and exclusive statement of the terms thereof h. Representations. The parties have not made or relied upon any representations, understandings, or other agreements not specifically set forth herein. L Prior Dealings. No course of prior dealing between the parties and no usage of the trade shall be relevant or admissible to supplement, explain, or vary any of the tenus of tlllS Agreement. j. Wah'er. No waiver by either party of any of the provisions of this Agreement shall be deemed to be a waiver of any other provisions of this Agreement. Any waiver must be in writing and signed by the party against whom such waiver is sought to be enforced. k. Purchase Orders. Any purchase order issued by Buyer shall be deemed to have been issued pursuant to and in accordance with this Agreement and shall be governed by the terms and conditions contained herein. Said purchase order shall reference the Agreement Number listed on page one hereof. If any printed term or conditions contained in any purchase order or other form used by Buyer to order Equipment conflicts with any term or condition contained herein, the provisions of this Agreement shall control and take precedence. I. Assignment. Neither party may assign their rights or duties under this Agreement without the prior written consent of the other party; provided that, nothing herein shall be deemed to prevent UTF from assigning this entire Agreement, or any part thereof, to any affiliated company of Sprint Corporation, Inc., or subcontracting its duties, or any part thereof, to any other person. This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, successors, and assigns (provided that the provisions concerning assignment and delegation contained in this Agreement are complied with). m. Notices. Any notice required or permitted to be given under any of the provisions of this Agreement or governing law shall be given in writing and either hand delivered or sent by first- class mail, postage prepaid, to the address on the face hereof. INITIA~_ . UTF ~UYER Z::kP Page 3 015 .' I I TERMS AND CONDITIONS - SCHEDULE A CONTINUED D. Force Majeure. UTF shall not be liable for any failure to perform any part of this Agreement due to federal, state, or local government action, statute, ordinance or regulation. strike or other labor trouble. riot or other civil disturbance, sabotage, fire, flood. lightning or electrical storm. environmental hazard, or acts of God, inability to secure the Equipment or necessary ancillary material or supplies, or, without limiting the foregoing. by any other cause, contingency. or circumstance within or without the United States not subject to its control which prevents or hinders UTF's performance of this Agreement or the effect of which would substantially deprive UTF of its economic benefit in this Agreement. o. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. I). Attorney's Fees. In the event either UTF or Buyer must pursue legal action to compel compliance with the terms of this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorney's fees and costs, as well as any collection costs incurred. q. Credit Check. Buyer consents to a search by UTF of its credit history and financial stability with any credit or reporting company or agency. 9. Termination. Ex1ended Customer Protection Plan service provided under this Agreement shall automatically remain in force for the Initial Maintenance Period and, thereafter, shall renew under the terms and conditions of the Centurion Agreement set forth in the Addendum, unless either party gives the other party written notice of termination at least thirty (30) days in advance of any scheduled renewal. 10. PrOI)erty of UTF. Buyer acknowledges that UTF shall install a data collection device and other UTF Equipment at Buyer's location to be used in performing services hereunder. All such property and Equipment shall remain the property of UTF. Buyer is purchasing only that Equipment specifically described on UTF's Purchase Agreements. At the expiration or termination of this Agreement or any service plan hereunder, UTF shall be entitled to enter Buyer's premises to remove all UTF property . 11. Bond. Upon execution of this Agreement, UTF shall provide Buyer with a Performance Bond in the form set forth in the attached Addendum. 12. Schedule. UTF shall deliver and install the Equipment in accordance with the Installation Scheduleattached hereto. UTF shall not be liable for any delay in the installation which is caused by any force majeure condition listed in section 8 (n). 13. Payment. Upon delivery of the Equipment to the installation site, Buyer shall pay UTF 25% of the total contract price for said Equipment. Once Buyer has accepted the installed Equipment pursuant to section 3, UTF shall invoice Buyer for the remaining balance of the Equipment which has been installed and accepted. Buyer shall pay any amount due within thirty (30) days of receipt of said invoice. 14. Time. Agreement. Time is of the essence with respect to this INITIALS UTF ~;J'( BUYER t, z:~:t:> Page 4of5 .., I I LS · --. prmt lnted TeJqitme- Naida BUYER'S RESPONSIBILITIES - SCHEDULE B United Telephone Company of Florida, Business Services Division (UfF), would like to thank Buyer for selecting UTF to provide Buyer's new telephone system. Here are some critical concerns pertaining to the on-going maintenance and installation of the Equipment. 1. It is important to select the proper environment for the Equipment. Today's technology in telephone systems is totally computerized and needs to be in a dust-free and well ventilated environment. Except for some large installations where special environmental controls may be required, any normal clean and air- conditioned area will do. Buyer may, however, wish to locate the Equipment and wiring in a special area for esthetic reasons. 2. UTF, in most cases, attempts to provide the complete installation using concealed wiring. In some instances, where UTF experiences a problem with getting access due to unforeseen circwnstances or building construction methods, Buyer may need to obtain an electrician to assist by providing conduit to complete the installation. Cost for conduit is Buyer's responsibility. In most cases, it is possible to identify where special fire resistant cabling is required prior to your acceptance of the Agreement. It is not always possible, however, to identify this need before starting the installation. Where the nature of the installation requires that wire or cable be run above false ceilings or in air plenwns where local building codes require the use of fire resistant cables, Buyer agrees to accept added charges for this special wiring. 3. All telephone equipment requires AC power for operation (specifications vary with the type of equipment installed). It is usually advisable for Buyer to have the AC outlet as close as possible to the telephone equipment. It is also advisable for the telephone equipment to be serviced on an individual circuit. Copiers, motors and other types of electrical equipment can generate large amounts of interfering noise that Buyer may experience as degraded telephone service. It is the responsibility of Buyer to provide proper AC power. 4. Foreign voltages and lightning effects on telephone equipment can be very significant during electrical storms. UTF highly recommends a ground wire be connected to the Multi-ground Neutral for Buyer's building, to be provided by your electrician. All of the above items are critical to the well being of the Equipment. If these general guidelines are closely adhered to, Buyer should be able to expect many years of service out of the Equipment with very few maintenance problems. If the above items are not complied with, in some cases, Buyer's manufacture's warranty or maintenance plan could be voided, causing Buyer additional ex-pense. INITIALS ~ . ~ UTF J::;5'- 0 ft-BUYER Original - Contract Administration Copy - Customer Copy - Sales Account Manager C~ Distributions: