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Res 125-2015 12/15/2015Resolution No. 125-2015 Resolution authorizing the upgrade of the City’s Harris 800 MHz Trunked Public Safety Radio System from Dailey-Wells Communication Inc. in the amount of $3,765,744 for a P25 compliant communication system WHEREAS, the City’s budget includes funds to upgrade the City’s existing Harris 800 MHz trunked Public Safety Radio system that is in excess of 11 years old ; and, WHEREAS, the current system is becoming increasingly difficult to maintain due to the availability of replacement parts; and, WHEREAS, a quote was received from Dailey-Wells, Inc., through the H-GAC contract for the purchase of this equipment; and, WHEREAS, after reviewing this upgrade proposal, it is in the City’s best interest to award the upgrade to Dailey-Wells Communications, Inc. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The purchase of an upgrade to the City’s 800 MHz Trunked Public Safety Radio System from Dailey-Wells Communication, Inc. in the amount of $3,765,744 and the contract documents related to this project in a form to be reviewed by the City Attorney are hereby approved. PASSED AND APPROVED this the 15th day of December, 2015. ______________________________ M A Y O R ATTEST: ____________________ City Clerk COMMUNICATIONS SYSTEM AGREEMENT DAILEY and WELLS Communications, Inc., a Texas corporation ("DAILEY & WELLS"), and The City of Wichita Falls, Texas ("City") enter into this Communications System Agreement (the "Agreement'), effective as of December 30, 2015, the last date this Agreement was signed (the "Effective Date"), pursuant to which City will purchase and DAILEY & WELLS will provide City with an 800 MHz P25 Phase II Trunked Two Way Radio System Upgrade. Whereas; The City entered into a contract with Dailey and Wells on May 18, 2004 for an APCO 16 radio communications network. Whereas; The City will utilize the Houston Galveston Council of Governments (H-GAC) competitive cooperative purchasing contract No. RA05-15 to procure the APCO 25 Phase II upgrade. Therefore; The City now contracts with Dailey and Wells to upgrade portions of said APCO 16 network to the latest APCO 25 Phase II network. Section 1 EXHIBITS The Exhibits below are hereby incorporated into and made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement will take precedence over the Exhibits and any inconsistency between the Exhibits will be resolved in the order in which the Exhibits appear below. Exhibit A Statement of Work Exhibit B Acceptance Test Plan ("Acceptance Test Plan" or "ATP"). Exhibit C Hardware and Software Deliverables and Pricing Exhibit D Project Implementation and Payment Schedule Exhibit E Certificate of Insurance Provisions Section 2 DEFINITIONS Capitalized terms used in this Agreement and not otherwise defined within the Agreement have the following meanings: a) "Acceptance Tests" shall mean the testing procedures set forth in Exhibit B, the Acceptance Test Plan, as mutually agreed upon by City and DAILEY & WELLS to be performed to determine whether the System has met the acceptance criteria set forth in the Acceptance Test Plan. ©Copyright 2015 DAILEY&WELLS Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 1 b) "Hardware and Software Deliverables" shall mean those items of Hardware included in Exhibit C. c) "Certificate of Insurance" shall mean the certificate to be provided by DAILEY & WELLS evidencing the insurance coverage of DAILEY & WELLS and the form of which certificate is set forth in Exhibit E attached hereto. d) "City of Wichita Falls" is the City of Wichita Falls, Texas referred to herein as "City" or "CWFTX" e) "Communications System" or "System" is the communications system described in this Agreement and the Exhibit(s), including the Hardware, Software, and services described in the System Description, Statement of Work, Acceptance Test Plan and Equipment Lists. f) "City Design Review" shall mean the joint preparation of the final design of the System as set forth in Section 4-b of this Agreement. g) "Effective Date of the Agreement" shall be the date on which the Agreement is signed by the last of the parties to sign the Agreement. The "Effective Date" shall be the date inserted on the first page of the Agreement. h) "Equipment Lists" shall mean collectively the Backbone Equipment list in Exhibit C. i) "Harris Software" is software whose copyright is owned by Harris, Inc. j) "Final Acceptance" shall mean acceptance of the System after the successful completion of the Cut-Over as discussed in this agreement. k) "Hardware" shall mean the equipment, parts and materials to be provided by DAILEY & WELLS for the System as listed in Exhibits C, the Equipment Lists, together with the other Backbone Equipment and User Equipment to be provided by DAILEY & WELLS prior to Final Acceptance of the System and in order to satisfy DAILEY & WELLS' obligations set forth under the terms and provisions of this Agreement. I) "Non-Harris Software" is software whose copyright is owned by a third party other than Harris, Inc. m) "Project" All Hardware, materials, Software and services necessary to install, warranty and test the Communications System as provided in the Statement of Work and Acceptance Test Plan may be referred to herein as the "Project." n) "Proiect Implementation Schedule" shall mean the schedule mutually agreed upon by DAILEY & WELLS and City in writing and attached as Appendix A to the Statement of Work. o) "Software" includes Harris, Inc. and any Non-Harris, Inc. Software that may be furnished with the Communications System. p) "User Equipment" shall mean those items of Hardware and associated software included in Exhibit C. Section 3 SCOPE OF AGREEMENT a) SCOPE OF WORK: DAILEY & WELLS will assemble, stage, and integrate the Hardware and Software, and deliver, install, optimize, test, and warranty the Communications System and train System users, as specified in Exhibit A (Statement of Work), in accordance with the terms and provisions of this Agreement. City will perform its responsibilities, as specified in Exhibit A (Statement of Work), in accordance with the terms and provisions of this Agreement. Optional on-going maintenance after initial warranty period shall be addressed on a separate agreement. b) CHANGE ORDERS: Changes may be requested within the general scope of this Agreement in accordance with State of Texas Statutes and City of Wichita Falls ordinances. ©Copyright 2015 DAILEY&WELLS Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 2 If a requested change causes an increase or decrease in the cost of or time required for the performance of this Agreement, DAILEY & WELLS and City will agree to an equitable adjustment in the Agreement price or Project Implementation Schedule, or both. DAILEY & WELLS is not obligated to comply with any requested changes unless and until a written Change Order is executed by both parties. Change order procedures are detailed in the Statement of Work, Exhibit A. c) CHANGES IN HARDWARE DELIVERABLES: In the event that hardware is ordered for this system by Daily & Wells and the City wishes to cancel that order, the City will be subject to a 25% restocking fee under the following circumstances (i) the item(s) have been sent to the City from either the OEM or Daily & Wells; or (ii) Daily & Wells can effectively demonstrate that the item(s) will be subject to a restocking fee from the OEM. d) HARDWARE MAINTENANCE SERVICE: DAILEY & WELLS, or it's designated agent, subject to city approval, or the City will provide the maintenance services for the System described in Section 10 of this Agreement during the twelve (12) month Warranty Period (as defined in Section 9 of this Agreement). This is based upon the City providing first response to dispatch outages, and contacting Dailey & Wells for support. e) Harris, Inc. SOFTWARE: DAILEY & WELLS agrees to provide the specific Harris, Inc. single user Software for the System in accordance with the terms and provisions of DAILEY & WELLS' Proposal. f) NON-Harris, Inc. SOFTWARE: DAILEY & WELLS agrees to provide the Non-Harris, Inc. Software for the System in accordance with the terms and provisions of this agreement. DAILEY & WELLS purchases as part of the PC and/or device, various vendor licenses for the Non-Harris, Inc. Software (i.e. Microsoft, etc...) which is transferred with title to the City. The price of the Non-Harris, Inc. Software single user license is included in the price of the applicable item of Hardware provided by Dailey & Wells. Optional Software subscription (upgrade) services are voluntary and available directly from the various Non-Harris, Inc. providers of the software (i.e. Microsoft, etc...). g) INSURANCE: DAILEY & WELLS shall comply with the insurance provisions of this Agreement set forth in Exhibit F and, on or before the Effective Date of this Agreement, provide City with the required Certificate of Insurance. Section 4 PROJECT IMPLEMENTATION SCHEDULE a) STATEMENT OF WORK: DAILEY & WELLS and City agree to perform their responsibilities in accordance with the Statement of Work, Exhibit A, and the Project Implementation Schedule, Exhibit "E" b) CITY FINAL SYSTEM DOCUMENT REVIEW: Prior to the effective date of this agreement, DAILEY & WELLS and the City have jointly worked on completing the Final System Documents as described in the Statement of Work. Upon contract effective date and completion of the Final System Document Review and approval, in writing, by DAILEY & WELLS and the City, DAILEY & WELLS shall then proceed with the ordering, assembly, integration, staging, delivery, installation, optimization, and testing of the System. DAILEY ©Copyright 2015 DAILEY &WFLI S Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 3 & WELLS and the City shall complete the Final System Document Review immediately after the effective date of the contract during the project "Kick-Off' meeting. c) TERMINATION FOR CONVENIENCE: In the event: (i) the City is unable to obtain funding for the Project, or (ii) the City subsequently loses the funding for the Project, either party may terminate this Agreement for convenience upon fifteen (15) days written notice to the other party. The receiving party will, upon receipt of the notification of termination for convenience by the other party, take all reasonable steps to mitigate and minimize termination costs including the immediate issuance of stop work orders, in writing, to its subcontractors and notifying subcontractors of the termination of the Agreement. The City shall be liable to DAILEY & WELLS for verifiable Hardware and services costs incurred prior to the date of receipt of the notice to terminate for convenience and for reasonable and verifiable costs which may be borne by DAILEY & WELLS in the termination of subcontracts, removal of installation and test equipment, and other verifiable costs directly related to an unforeseen and abrupt termination. The portions of DAILEY & WELLS' termination claim that are not disputed by the City shall be paid within forty five (45) days of receipt of DAILEY & WELLS' request for reimbursement. The City shall provide written notice to DAILEY & WELLS of its dispute of any verifiable costs in DAILEY & WELLS' termination claim (and the reasons, in reasonable detail, for such dispute) within forty-five (45) days after receipt of DAILEY & WELLS' termination claim. Section 5 PAYMENT SCHEDULE a) PRICE AND PAYMENT TERMS: The total System price is Three Million, Seven Hundred Sixty Five Thousand, Seven Hundred Forty Three Dollars and Eighty Five Cents. ($3,765,743.85). The Agreement price includes all equipment, materials, software user fees, and services necessary for the installation, testing, training, warranty and maintenance of the System through the initial Warranty Period. It also includes travel expenses for DAILEY & WELLS personnel and its subcontractors providing installation, warranty and maintenance services during the initial Warranty Period, all as described in this Agreement and the Statement of Work, Acceptance Test Plan and Equipment Lists. The City will make payments in accordance with the Project and Payment Schedule set forth in Exhibit D. b) FREIGHT CHARGES: The total Agreement price includes freight charges FOB Wichita Falls for all Hardware, software & materials provided as part of this system. c) FUTURE PRICES: The City may purchase Hardware and Software in the future from Dailey & WELLS in accordance with the product discounts offered at the then current H-GAC contract discounts off of the then current manufacturer's suggested list prices. The City and/or Dailey & Wells may, from time to time, update the availability of new products, services, and related items offered for sale similar to those as contained in this contract, and the contract discount percentage offered from updated MSLP shall remain effective for the duration of this contract. The City reserves the right to modify quantities, product models/features, and/or services as delineated in this contract and addenda. Any such changes shall be in the form of a "change order" mutually executed by both parties. ©Copyright 2015 DAILEY&WELLS Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 4 d) DISCONTINUED MODELS: If DAILEY & WELLS, at its election, replaces a model of Hardware with a new model, City may purchase the new Hardware model (and associated Software) and accessories at the same list price with percentage discount level as the discontinued Hardware model (as discussed in Section 5 (c) above) or the current price offered by DAILEY & WELLS, if lower. Section 6 TRAINING DAILEY & WELLS will provide the training for the City set forth in Exhibit "A"- The Statement of Work. Section 7 SYSTEM TESTING/FINAL SYSTEM ACCEPTANCE Prior to "Final System Acceptance" (as hereinafter defined), the following five phases of the Project Implementation Schedule must be completed: • Dispatch P25 Switch and console installation and optimization • Acceptance Testing • System Cut-Over • Final System Acceptance Each phase is described below in more detail. a) System Infrastructure Installation, Optimization and ACCEPTANCE TESTING: DAILEY & WELLS will test the Communications System in accordance with the Acceptance Test Plan, Exhibit B. The four parts of the Acceptance Test Plan to be performed by DAILEY & WELLS and City (in the following order) are: i) Staging Technical/Feature/Functional tests ii) On-Site Technical/Feature/Functional/ Physical As-Built Review iii) and Final System Acceptance. DAILEY & WELLS will provide sufficient training to the designated City personnel to be able to participate and monitor the Acceptance Tests. DAILEY & WELLS shall notify the City in writing that the System has been installed, fully optimized and is ready for Acceptance Tests. The City and DAILEY & WELLS shall jointly commence all other Acceptance Tests on the date specified in DAILEY & WELLS' notice (or other mutually agreeable date). Unless otherwise directed by the City, all testing shall be monitored by appropriate City representatives at the time of testing. If the System does not fulfill the requirements of the Acceptance Tests, DAILEY & WELLS shall use its best efforts and diligently proceed to correct the defects, at DAILEY & WELLS's expense. Upon correction of the defects or system problems and at no additional charge to the City, the Acceptance Tests for the applicable part of the Acceptance Test Plan shall be repeated in accordance with the procedures set forth in the Acceptance Test Plan. Unless otherwise directed by the City, all tests for subsystems must be successfully passed to be eligible for Final System Acceptance, with a mutually agreed upon "punch list" of minor issues and associated withheld price, if any. b) CUTOVER: After successful completion of the Acceptance Tests and dispatcher training, DAILEY & WELLS and the City shall immediately or at a mutually agreeable time, commence the implementation of the Cutover Plan. Upon successful completion of the requirements of the Cutover Plan, the City shall provide the associated milestone payment to DAILEY & WELLS. ©Copyright 2015 DAILEY &W ELl S Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 5 c) PUNCHLIST ITEMS: The City and DAILEY & WELLS agree that in the process of completing the Acceptance Test Plan and the cut-over, a few Minor "punch listed" items requiring resolution that do not affect system two way radio communications, performance, or safety, or impact final system acceptance will be discovered. As these occur and are identified, the City and Daily & Wells will review the list of minor issues to determine if Final System Acceptance can be achieved prior to completion of the punch listed items accrued from previous tests. This shall not, however, release DAILEY & WELLS from its obligations to diligently complete the remaining punchlisted items on the punchlist schedule. Section 8 WARRANTY a) SYSTEM WARRANTY: DAILEY & WELLS is providing a "system warranty" that covers all hardware, and services provided pursuant to this agreement for 12 months from the date of Final System Acceptance. DAILEY & WELLS will be the point of contact for the City for all warranty issues during the warranty period. DAILEY & WELLS warrants for a period of twelve (12) months from the first day following the passing of the final acceptance tests (hereinafter referred to as the "Warranty Period"), that the Hardware and installation Services furnished by DAILEY & WELLS under this Agreement shall be free from defects in material and workmanship and shall conform to Harris' and/or OEM published specifications or, if there are no Harris published specifications, the specifications of the manufacturer of the non-Harris item of Hardware. Any and all claims for breach of this warranty are conclusively deemed waived unless made within the Warranty Period or a period of thirty (30) days after the end of the Warranty Period. Dailey & Wells shall convey any warranties offered by the OEMs exceeding the stated term above. (i.e. portable and Mobile radios carry a 2-year warranty) b) BATTERIES: For purposes of this Warranty the batteries sold by Dailey & Wells and supplied by Harris, Inc., for the portable radios shall be deemed defective if: (1) upon delivery, the battery tests at less than 100% rated capacity (2) the battery capacity is less than 80% rated capacity at the end of the warranty period, (3) the battery develops leakage, or the battery case develops problems with its physical contacts or the case, such as cracking. Replacement batteries shall be warranted only for the remaining un-expired portion of the Warranty Period. This warranty becomes void if: (1) the battery has been subjected to any kind of misuse which is out of the ordinary for normal Public Safety applications, detrimental exposure, or has been involved in an accident, or (2) the battery is used in Hardware or service other than the Hardware for which it is specified. c) WARRANTY OBLIGATIONS: During the Warranty Period if any component of the Hardware or portion of the installation services fails to meet the foregoing warranties, DAILEY & WELLS's and City's exclusive remedy under this warranty shall be the correction by DAILEY & WELLS, at DAILEY & WELLS's option: (1) by repairing or replacing any defective component of the Hardware with a new product/component, or (2) by furnishing and installing any necessary repaired or replacement parts, or (3) by the redoing of the faulty installation. Any such failure, or the repair or replacement of the defective component or the re-installation, shall not extend the Warranty Period unless the City has had the same problem, on the same unit two previous times and it appears that the previous problems were not appropriately corrected or it appears that a design or manufacturing problem requiring further correction is the source of trouble. Where such failure cannot be corrected by DAILEY & WELLS's and reasonable efforts, the parties will negotiate an equitable ©Copyright 2015 DAILEY &WELLS Communications, Inc. 12/23/2015 City of Wichita F-alls, Texas Agreement REV 2 Page 6 adjustment in price. All warranty labor must be performed by an authorized service group approved by DAILEY & WELLS either at its place of business, or mutually agreed upon City location, for mobile or portable Hardware, or at the City's location for fixed location Hardware should DAILEY & WELLS determine that it is not feasible to return the fixed location Hardware to DAILEY & WELLS's authorized service group. The City may be designated as an authorized service group. d) WARRANTY EXCLUSIONS: DAILEY & WELLS's and/or the OEM's obligations shall not apply to: (1) Hardware or components thereof which are normally consumed in operation, or (2) Hardware or components thereof which have a normal life inherently shorter than the Warranty Period, or (3) defects which are the result of improper storage, use, or installation performed by other than DAILEY & WELLS or a DAILEY & WELLS authorized service group, maintenance performed by other than DAILEY & WELLS or a DAILEY & WELLS authorized service group, or repair performed by other than DAILEY & WELLS, or a DAILEY & WELLS authorized service group, or (4) Hardware which has been subjected by the user to any other kind of misuse or detrimental exposure outside of normal Public Safety usage or has been involved in an accident, or (5) Hardware or installations altered or repaired by any party other than DAILEY & WELLS or a DAILEY & WELLS authorized service group without DAILEY & WELLS' prior written consent. f) SOFTWARE WARRANTY: DAILEY & WELLS provided Software is warranted in accordance with the terms of the Harris Software License Agreement, and of the various OEM's of the software provided, attached as Exhibit C. THE WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION AND IN THE SOFTWARE LICENSE AGREEMENT CONSTITUTE THE ONLY WARRANTIES WITH RESPECT TO THE HARDWARE, SOFTWARE AND SERVICES PROVIDED UNDER THE TERMS OF THIS AGREEMENT AND THE CITY'S EXCLUSIVE REMEDIES IN THE EVENT SUCH WARRANTIES ARE BREACHED. THEY ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL DAILEY & WELLS, and/or HARRIS, Inc. BE LIABLE FOR SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES. Section 9 SYSTEM MAINTENANCE, REPAIR AND SERVICE DURING THE WARRANTY PERIOD System maintenance to be provided by DAILEY & WELLS during the warranty period. a) MAJOR SYSTEM FAILURES (as described in "appendix A" of the maintenance agreement): The City's First Responder shall initially respond to such outages and if requested by the City, DAILEY & WELLS will respond to and be on site at City facilities in Wichita Falls for Major System Failures within six (6) hours of notification by City. A service technician shall telephone or contact the City representative reporting the failure within thirty (30) minutes after the call is received by City and/or Dailey & Wells. ©Copyright 2015 DAILEY & WFI LS Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page ? b) MINOR SYSTEM AND OTHER BACKBONE EQUIPMENT FAILURES: (as described in "appendix A" of the maintenance agreement) The City's First Responder shall initially respond to such outages and if requested by the City, DAILEY & WELLS will respond to and be on site at City facilities in Wichita Falls for Major System Failures within twenty four (24) hours of notification by City. A service technician shall telephone or contact the City representative reporting the failure within thirty (30) minutes after the call is received by City and/or Dailey & Wells. c) SPARE PARTS AVAILABILITY: Spare parts will be available directly from Harris for the following periods: Ten (10) years for Harris backbone equipment, Seven (7) years for Harris mobile radio equipment and Five (5) years for portables. The reference date for each term is referenced to the manufactures date of discontinuance. This is the standard Harris, Inc. parts policy. d) MAINTENANCE EXCLUSIONS: DAILEY & WELLS' maintenance obligation to provide maintenance service, at DAILEY & WELLS cost, shall not apply to Hardware conditions described in Sections 8d(3) — (5) of this Agreement. Section 10 REMEDIES a) DAILEY & WELLS' Default: In the event of a material breach of this Agreement by DAILEY & WELLS which shall continue for ninety (90) or more days after written notice of such breach (including a reasonably detailed statement of the nature of such breach) shall have been given to DAILEY & WELLS by City, City shall be entitled to avail itself cumulatively of any and all remedies available at law or in equity (provided such remedies are not otherwise limited under the terms of this Agreement) which shall include, at City's option, either: (1) to suspend performance of its payment obligations under the Agreement for as long as the breach continues uncorrected; or (2) to terminate this Agreement by written notice to DAILEY & WELLS if the breach remains uncorrected. Upon termination, the City may recover from DAILEY & WELLS actual damages not to exceed the amounts previously paid to DAILEY & WELLS by City under this Agreement less any amounts previously returned by DAILEY & WELLS to the City. b) City Termination: In the event the City elects to terminate this Agreement as provided in Section 7(a) above (failure to successfully complete the Acceptance Test Plans) then: (i) DAILEY & WELLS shall be required to refund to City any and all payments made to DAILEY & WELLS by City under this Agreement less restocking fees for items of Hardware not retained by the City; and (ii) the City shall return all other items of Hardware to DAILEY & WELLS that the City does not want to retain. c) City's Default: In the event of: (1) any failure by City for thirty (30) or more days to make any undisputed payment when due, or (2) any other material breach of this Agreement by City which shall continue for ninety (90) or more days after written notice of such breach (including a reasonably detailed statement of the nature of such breach) shall have been given to City by DAILEY & WELLS, DAILEY & WELLS shall be entitled to avail itself cumulatively of any and all remedies available at law or in equity (provided such remedies are not otherwise limited under the terms of this Agreement) which shall include, at DAILEY & WELLS' option, either: (1) to suspend performance of "its obligations under this Agreement for as long as the breach remains uncorrected; or (2) to terminate this ©Copyright 2015 DAILEY&WEL.L S Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 8 Agreement by written notice to City if the breach remains uncorrected. Section 11 INDEMNIFICATION DAILEY & WELLS shall and does hereby agree to indemnify, defend and hold the City and, their officials, employees, agents and representatives (each an "Indemnified Person") harmless from and against any third party loss, liability, obligation, damage, penalty, judgment, claim, and expense (including, without limitation, interest, penalties, and attorneys' fees) for bodily injury including death or damage to the tangible property of third parties which any Indemnified Person may be liable for and which directly results from the willful misconduct, negligent acts or omissions of DAILEY & WELLS, its agents, subcontractors, employees or other persons for whom DAILEY & WELLS is legally liable. City agrees to notify DAILEY & WELLS and DAILEY & WELLS agrees to notify the City as soon as practical of any third party claim, demand or cause of action for which City may request indemnification from DAILEY & WELLS. City will provide DAILEY & WELLS with the necessary information and assistance to defend and settle such claim, demand or cause of action. Section 12 PATENT AND COPYRIGHT INFRINGEMENT a) DAILEY & WELLS warrants that the System furnished hereunder shall be delivered free of any rightful claim of any third party for infringement of any United States patent, copyright or intellectual property right. DAILEY & WELLS further warrants that all necessary third party consents with respect to the Software have been obtained by DAILEY & WELLS. If City notifies DAILEY & WELLS promptly of the receipt of any claim that the System infringes a United States patent, copyright or intellectual property right and gives DAILEY & WELLS information, assistance and exclusive authority to settle and defend such claim, DAILEY & WELLS at its own, and/or in conjunction with the Software owners expense and option shall defend, or may settle, any suit or proceeding against City so far as based on a claimed infringement which breaches this warranty. If, in any such suit arising from such claim, the continued use of the System for the purpose intended is enjoined by any court of competent jurisdiction, DAILEY & WELLS, and/or in conjunction with the Software owners shall, at its expense and option, either: (1) procure for City the right to continue using the System, or (2) modify the System so that it becomes non-infringing, or (3) replace the System or portions thereof so that it becomes non-infringing, or (4) remove the System and refund the purchase price (less reasonable depreciation for use). DAILEY & WELLS shall indemnify and hold the City and harmless from and against any judgment (including damages, interest and penalties) which results from patent, copyright or intellectual property right infringement as described above. The foregoing states the entire liability of DAILEY & WELLS for patent or copyright infringement by the System and is subject to any limitation of total liability set forth in this Agreement. b) The preceding subsection (a) shall not apply to: (1) any portion of the System which is manufactured to City's design, or (2) the use of the System in conjunction with any other apparatus or material not supplied by DAILEY & WELLS to the extent that such conjoined use causes the alleged infringement. As to any portion of the System or use described in the preceding sentence, DAILEY & WELLS assumes no liability whatsoever for patent infringement. c) THE PATENT, COPYRIGHT AND INTELLECTUAL PROPERTY RIGHT WARRANTY AND ©Copyright 2015 DAILEY&WELLS Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 9 INDEMNITY OBLIGATIONS RECITED ABOVE ARE IN LIEU OF ALL OTHER PATENT AND COPYRIGHT WARRANTIES AND INDEMNITIES WHATSOEVER, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. THE PATENT, COPYRIGHT AND INTELLECTUAL PROPERTY RIGHT WARRANTY AND INDEMNITY OBLIGATIONS RECITED ABOVE SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT AND SHALL REMAIN IN FULL FORCE AND EFFECT DURING THE TERM OF THE EDACS SYSTEM SOFTWARE LICENSE AGREEMENT (EXHIBIT C) AND THE FX SOFTWARE SERVICES AGREEMENT (EXHIBIT H) IF THE FX SOFTWARE SERVICE AGREEMENT IS EXECUTED BY THE CITY AS PROVIDED IN SECTION 3(C) OF THIS AGREEMENT. Section 13 DISPUTES a) MEDIATION: The parties have the mutual affirmative duty to attempt to negotiate and resolve any disputes that arise under this Agreement in good faith at the least possible expense prior to the initiation of any type of judicial proceeding. In order to achieve that objective and resolve their dispute, the parties agree to negotiate expeditiously and in good faith over a minimum period of thirty (30) days from the date of written notice of default (and during the applicable cure or grace period) and to contract for the services of a mutually agreed upon mediator to assist in non-binding mediation during the same thirty (30) day period. The parties will each pay one-half (1/2) of the cost of the services of the mediator. b) JUDICIAL PROCEEDINGS: Any dispute that cannot be resolved between the parties during the thirty (30) days of negotiation or non-binding mediation after the issuance of the notice of default may then be submitted (after the expiration of the applicable cure or grace period) by either party to a federal or local court of competent jurisdiction in the City of Wichita Falls, State of Texas. Each party consents to jurisdiction over it by such a court. The use of non-binding mediation described above will not be considered under the doctrine of laches, waiver, or estoppel to affect adversely the rights of either party. Except as provided in Section 12(c) of this Agreement, DAILEY & WELLS shall continue to perform under this Agreement during any disputes or disagreements. Section 14 LIMITATION OF LIABILITY Except for DAILEY & WELLS' liability to third parties for its willful misconduct or negligent acts or omissions as more particularly described in Section 11 of this Agreement (Indemnification), the total liability of DAILEY & WELLS, including its subcontractors or suppliers, for all claims of any kind for any loss or damage, whether in contract, warranty, tort (including negligence or infringement), strict liability or otherwise, arising out of, connected with, or resulting from the performance or non-performance of this Agreement or from the manufacture, sale, delivery, installation, technical direction of installation, resale, repair, replacement, licensing or use of any Hardware, Software or the furnishing of any service, shall not exceed the cost of completion of the terms, obligations and conditions by Dailey & Wells under the provisions of this Communications Systems Agreement, as referenced by, but not limited to, Section 3, Scope of Agreement, above. b) IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE BUT EXCLUDING INFRINGEMENT), STRICT ©Copyright 2015 DAILEY&WELL S Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 10 LIABILITY OR OTHERWISE, SHALL DAILEY & WELLS, OR ITS SUBCONTRACTORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE HARDWARE OR ANY OTHER HARDWARE, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR DOWNTIME COSTS. c) Any action for any claim of any kind for any loss or damages arising out of, connected with, or resulting from the performance, non-performance or breach of the Agreement, or from the manufacture, sale, delivery, installation, technical direction of installation, resale, repair, replacement, licensing or use of any Hardware, Software or the furnishing of any services, shall be commenced within four (4) years after the cause of action accrued or it shall be deemed waived or barred. d) The provisions of this Section, LIMITATION OF LIABILITY, shall apply notwithstanding any other provisions of this Agreement or any other agreement between DAILEY & WELLS and the City, whether past, present or future, and notwithstanding the conduct of DAILEY & WELLS or any of its employees, officers, agents, affiliates, subcontractors or suppliers in the performance of this Agreement. e) The provisions of this Section, LIMITATION OF LIABILITY, shall survive the expiration or termination of this Agreement. Section 15 ADDITIONAL REPRESENTATIONS AND WARRANTIES DAILEY & WELLS and the City warrant and represent to one another as set forth below that as of the Effective Date of this Agreement: a) DAILEY & WELLS warrants and represents that it is a Texas Corporation, duly organized, validly existing and in good standing under the laws of the State of Texas and has all power and authority to conduct its business in the State of Texas. b) DAILEY & WELLS warrants and represents that there are no lawsuits or administrative governmental actions pending in any court or before any administrative governmental body against DAILEY & WELLS that could result in an outcome which would materially affect the business operations of DAILEY & WELLS or DAILEY & WELLS' ability to carry out its obligations under this Agreement. c) City warrants and represents that there are no lawsuits or administrative governmental actions pending in any court or before any administrative governmental body against City that could result in an outcome which would materially affect the operations of City or City's ability to carry out its obligations under this Agreement. d) DAILEY & WELLS warrants and represents that, unless otherwise specified in this Agreement or the exhibits hereto, all Hardware to be provided for the System (prior to the performance of any warranty or maintenance services) will be new equipment comprised of new and un-used component parts, and not refurbished or reconditioned parts. Products offered in this agreement may be "subject to prior sale", which means they may have been previously sold but not delivered to, or used by, the original purchaser. ©Copyright 2015 DAILEY &WEI_I_S Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 11 Section 16 GENERAL a) TITLE AND RISK OF LOSS: DAILEY & WELLS shall ship the Hardware to City and, in accordance with the dates set forth in the Project Implementation Schedule. Partial deliveries shall be permitted. b) TAXES: The purchase price does not include any amount for federal, state, or local excise, sales, lease, service, rental, use, property, ad-valorum, occupation, or other taxes, all of which will be paid by City or, except as exempt by law. City shall provide DAILEY & WELLS with the necessary tax exemption certificates to satisfy the applicable tax authorities. If DAILEY & WELLS is required to pay or bear the burden of any such taxes, DAILEY & WELLS will send an invoice to City who will pay to DAILEY & WELLS the amount of such taxes (including any interest and penalties) within thirty days after the date of the invoice. City will be solely responsible for reporting the Hardware for personal property tax purposes. c) ASSIGNABILITY: This Agreement may not be assigned by either party without the prior consent of the other party. d) WAIVER: Failure or delay by either party to exercise any right or power under this Agreement will not operate as a waiver of such right or power. e) SEVERABILITY: If any portion of this Agreement is held to be invalid or unenforceable, that provision will be considered severable and the remainder of this Agreement will remain in full force and effect as if the invalid provision were not part of this Agreement. f) HEADINGS AND SECTION REFERENCES: The headings given to the sections of this Agreement are inserted only for convenience and are not to be construed as part of this Agreement or as a limitation of the scope of the particular Section to which the heading refers. g) ENTIRE AGREEMENT: This Agreement (including the Exhibits) constitutes the entire agreement of the parties regarding the subject matter of this Agreement and supersedes all previous agreements and understandings, whether written or oral, relating to such subject matter. This Agreement may be altered, amended, or modified only by a written instrument signed by the duly authorized representatives of both parties. h) GOVERNING LAW: This Agreement will be governed by and construed in accordance with the laws of the State of Texas. i) AVAILABILITY OF FUNDS: Pecuniary obligations of the City of Wichita Falls and/or any Eligible User that is a Texas governmental entity are contingent upon appropriation of sufficient, readily available funds under the State Statutes of the State of Texas. j) NOTICES: Notices authorized or required under this Agreement must be in writing and sent to the below addresses: ©Copyright 2015 DAILEY&WELLS Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 12 To City To DAILEY & WELLS City of Wichita Falls Dailey & Wells Communications, Inc. Mr. Blake Jurecek Richard Wells 1300 7th Street 3440 E. Houston St. POB 1431 San Antonio, Texas 78219 Wichita Falls, Texas 76307 Addresses may be changed by written notice to all other parties. k) PROJECT MANAGEMENT: DAILEY & WELLS' Project Manager shall attend project meetings with the City's Project Director as reasonably requested and scheduled by the City. Project meetings shall be held as mutually scheduled, these meeting may be held by teleconference or in person. DAILEY & WELLS' Project Manager will provide written monthly status reports by the tenth day of each month to the City's project manager, as well as other reports reasonably requested by the City. Dailey & Wells and the City shall name their Project Directors responsible for primary interface prior to the commencement of the City Design Review. I) SHIPPING SCHEDULE: Hardware shall be shipped according to the implementation schedule and the Statement of Work. m) NAME AND LOGO: Neither party shall use the other party's name or logo, nor that of any of the other subcontractors or participating entities, without their prior written permission. o) TERM OF AGREEMENT: The term of this agreement shall be five (5) years from the day last executed. ©Copyright 2015 DAILEY&WELLS Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 13 In Witness Whereof, the parties have caused duly authorized representatives to execute this Agreement on the dates set forth below. CITY DAILEY & WELLS CITY OF WICHITA FALLS, TEXAS DAILEY AND WELLS Communications, Inc. By: f _ By: Name: r--- )/Aazv‘ T l�i�� Name: JoAnne Wells Title: /-:// Title: Vice President v Date: /- 1)-/d Date: 3 DEC 2015 Witness: Witness: /ANOP ( ibild(L° Witness Name: Witness Name: Sharee Varelas, J.D. ©Copyright 2015 DAILEY &WELLS Communications, Inc. 12/23/2015 City of Wichita Falls, Texas Agreement REV 2 Page 14