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HomeMy WebLinkAboutResolution #3287 RESOLIITION N0. 3287 A RESOLIITION APPROVING A MRT SERVICE AGREEMENT AND A LICENSE AGREEMENT BETWEEN THE CITY OF CANTON AND BADGER METER, INC. AND DIRECTING THE MAYOR TO ERECIITE AND DELIVER SAID AGREEMENTS ON BEHALF OF THE CITY OF CANTON, ILLINOIS. WHEREAS, the Legal and that it is necessary and in Canton to enter into a MRT License Agreement with Badger herein incorporated as Exhibit WHEREAS, the Canton C: determination. Ordinance Committee has determined the best interest of the City of Service Agreement together with a Meter, Inc., hereto attached and "A"; and, Lty Council has made a similar NOW, THEREFORE, BE IT RESOLVED BY THE CITY COIINCIL OF THE CITY OF CANTON, Fulton County, Illinois as follows: 1. That the MTR Service Agreement together with a License Agreement, copies of which are hereto attached as Exhibit "A" between the City of Canton and Badger Meter, Inc. is hereby approved. 2. That the Mayor is hereby authorized and directed to execute and deliver said MRT Service Agreement on behalf of the City of Canton, Illinois. 3. That this Resolution shall be in full force and effect immediately upon its passage by the City Council of the City of Canton, Illinois. PASSED by the City Council of the City of Canton, Fulton County, Illinois at a regular meeting this 5th day of July, 1995, upon a roll call vote as follows: AYES: Aldermen Molleck, Hartford, Sarff, Phillips, Meade, Shores, May. NAYS: None. ABSENT: Alderman Bohler. APPR Donald E. E wards, Mayor ATTEST: ~~~~~~ Na y Whit s, City Clerk. ~. Badger Meter, inc., Utility Division 4545 W. Brown Deer Road, P.O.Box 23099 ® Milwaukee, WI 53223-0099 (414) 355-0400 SCHEDULE N0.2, PAGE 1 Effective Date August 10, 1994 MRT SERVICE AGREEMENT (G-5298-RD-0893) BADGER METER, INC. 4545 West Brown Deer Road Miwaukee, WI 53223 between Customer Name: City Of Canton address: 210 E. Chestnut St. ciryistate: Canton, IL. 61520-2731 Badger Meter, Inc. ("Badger") agrees to provide and the MRT Customer ("Customer') agrees to accept maintenance and related service in accordance with the terms and condkions of this MRT Service Agreement ("Agreement"). The Agreement specifies all services provided by Badger and its service subcontractor in the support of the MRT Utility Management System ("System"). 1. EQUIPMENT This Service Agreement is limited to the MRT Utility Management System computers and computer support equipment as follows: Includi Hardware (Service or Replacernent) Software: (Upgrades and Fixes) RMSplus License No. 8098 Carbon Copy (support only) Not Covered: This Agreement specifically exGudes service provisions for the field installation equipment. 2. EFFECTNE DATE/SERVICE TERM/TERMINATION 2.1 Effective Date This agreement shall remain in full force and effect for ~ month(s) and shall be renewed automatically on an annual basis after the expiration of the initial ~ month(s) period unless either of the parties provides the other with written notice of Rs desire to terminate the * 60 days prior to the expiration of the term then in effect. The Agreement shall otherwise remain in full force and effect unless terminated by virtue of any schedule attached hereto, or by either party upon 60 days' prior written nntice to the other. 2.2 Maintenance Service Term This initial maintenance service term for the System specified herein is for 1~ mor~h(s) canmencing from the Effective Date. Equipment added to the Customer's location and placed under service shall have the maintenance service term remaining for said installation site wfth charges prorated. 3. SERVICE PROVIDED BY BADGER 3.1 Service Subcontract Agreement Maintenance and remedial service will be provided to the System by Badger or a subcontractor for Badger. A service subcontract agreement has been established in which Badger has appointed a third party vendor as the exclusive agent to pertorm maintenance and remedial service for the System. The performance of maintenance or remedial service to the System by any other third party service organization is prohibked by this Agreement. Obtaining such prohibited service rrx~y void this Agreement. Notwith-handing the foregoing Badger may at any time elect to provide the maintenance and service which are the subject of this agreement or Badger may elect to have another subcontractor provide such maintenance and service. *Agreement not less than 3.2 Services Provided by Badger a) The Customer Request for Service Ail requests for remedial maintenance by the Customer must be directed to Badgers Utility Division Technical Support 800#. The 8001 is available 7 dayslweek, 24 hours/day. Please call 1-000-456- 5023 (or 355-6917 in Milvreukee area only). A technician will provide assistance to diagnose the specific problem. When hardware problems are identified, the technician will take the folkmring action: b) Scheduling The technician will promptly schedule the service requirements, providing specific Customer information. c) Principal Period of Maintenance (for ACCESSpius Personal Computer Hardware only if Ilsted in Section 1) Maintenance or remedial service will be pertormed at the Customer's location 24 hours/day, 7 days/week. The normal response for remedial maintenance is the next business day after the receipt of the service request from Badger. Next business day service is limlted to the Customer kx~tices within 200 miles of an authorized service location. 4. SERVICE PART REPLACEMENT RESPONSIBILITY 4.1 Service Parts Badger or its subcontractor will provide service parts for the System components as described in Section 1. Replacement parts for the above specified components are the property of Badger or its subcontractor. The technician of Badger or its subcontractor will be responsible for removing defective parts from the Customer's location. if. Service Limitations a) Badger will not be responsible for providing service assistance except in the times designated in section 3.2 Subpart A. b) Badger is not obligated to accept any equipment for service hereunder which lt determines is not in a maintainable condition. Equipment is subject to inspection by Badger or its subcontractor to determine if lt is in maintainable condtion, including, but not limited to, the following situations: installed equipment, equipment which has been maintained by other than Badger or its subcontractor, or equipment which the Customer has stored. Charges for said inspectice and repairs required to bring the equipment into a maintainable condtion are not part of this service agreement. All such charges will be the responsibility of the Customer and will be billed in accordance with Badger's then current hourty rates and P~• c) Any service requested for equipment moved by the Customer is subject to the availability of Badger maintenance service resources at the new installation location, and in accordance with Badgers policies and charges then in effect. d) The Customer shall pay, as an additional charge, for any re~ir pertormed by Badger or lts subcontractor due to damage to the equipment resulting from the Customers failure to pertorm its SCHEDULE No. 2, page 2 responsibilities or from any abuse, misuse, or movement of the equipment. e) Maintenance service does not include: operating supplies, installing, deinstalling, or relocating equipment, maintaining or removing attachments that are not part of the System. In addition, Badger and its subcontractor shall not be responsible for the loss of use of equipment or for any other liability arising from software or the attachment of devices to the System that are not part of the System and authorized by Badger. Further, Badger and its subcontractor shall not be responsible for loss of equipment use or any other liability arising from equipment which is altered, adjusted, or repaired by other than Badger or its subcontractor. The Customer shall be responsible for and pay for service calls resulting from System malfunctions due to attachments for software programs. The eligibility of such equipment for continued maintenance service hereunder is subject to inspection under then current Badger policies and rates. Badger reserves the right to terminate maintenance service for the affected equipment upon 30 days written notice. f) If, in Badger's reasonable opinion, maintaining the equipment in good working condition is no longer possible for any reason, Badger shall notify the Customer. if the Customer elects not to refurbish the equipment within 60 days of said notice, Badger reserves the right to terminate the maintenance service for the affected equipment upon 30 days written notice. 6. CUSTOMER RESPONSIBILITY 6.1 Service Request Responsibility The customer agrees to promptty notify Badger's MRT Service Support Group of aN equipment anomalies, or failures. Failure to promptly notify Badger may void this service contract. 6.2 Service Support Facilities The Customer agrees to provide as required at no charge access to the MRT control computers and computer support equipment, and all facilities such as storage, working space, electricity, and telephone service as required for Badger's or its subcontractors use. 6.3 Customer Neglect or Damage The Customer agrees to pay all charges for repair pertormed to the MRT control computer and computer support equipment for damages to the equipment resulting from the Customer's failure to pertorm its responsibilties or for any abuse, misuse, or movement of the equipment. 7. CHARGES a) Services not provided for in the Agreement, requested by the Customer of Badger or its subcontractor are to be invoked to the Customer as incurred and they are due and payable upon receipt of the invoice. b) If the Customer tails to pay any charges when due and payable, Badger may charge the Customer a late payment charge of 1 1 /2% of the past due balance per month but not to exceed the lawful maximum. SCHEDULE N0.2, page 3 S. INDEMNIFICATION The Customer shall indemnify and hold harmless Badger and its subcontr~or, from any loss, claim, or damage to persons or property, arising out of the Agreement or services provided, to the extent that such loss, claim, or damage is not caused by the fault of Badger or its subcontraclw. This indemnity survives the termination of this agreement. 8. NOTICES Any notice permitted or required hereunder shall be sent first class mail to the respective address in the heading of this Agreement to the attention of the partres specified below. 11. C3ENERAL 11.1 Except for the Customer's responsibility for payments, Walther party shall be responsible or liable in any way for any delays or failure to perform its obligations hereunder when such delays or failures are caused by conditions or circumstances beyond its control. 11.2 Except as otherwise required by law, no advertising, publicity release, or similar public information concerning this Agreement or the services to be pertormed hereunder shall be published or caused to be published by either Badger or the Customer without the prior consent of the other party, which consent shall not be unreasonably withheld. For Badger Meter, Inc.: Attention: Barbara Kramer For the Customer: Attention: Ray McKinney 10. LIMITATION OF REMEDY 10.1 In no event shall any parties to this Agreement be liable for any indirect, special, or consequential damages arising out of the Agreement or any service provided under the Agreement. 10.2 None of the parties to this Agreement may institute any action in any form arising out of the Agreement more than two years after the cause of the action has arisen, or in the case of nonpayment, more than two years from the date of last payment or promise to pay. 10.3 The Customers exclusive remedy and Badgers entire liability in contract, tort, or otherwise hereunder is the installation of the equipment, and repair or exchange of any equipment or part thereof which Badger determines to be defective or inoperable. ER METER, MIC. Jeanne McBride Printed Name Assistant Secretary Tithe May 5, 1995 Date 11.3 This Agreement is deemed to be made and entered into at Mihnraukee, Wisconsin and is governed in all respects by the laws of the State of Wisconsin. 11.4 THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NOT SPECIFIED HEREIN RESPECTING THE AGREEMENT OR THE SERVICE PROVIDED. 11.ti This Agreement represents the entire Agreement between the parties regarding the subject matter thereof and supersedes all prior and oral written proposals and communication. 11.6 This Agreement and any part thereof may be amended onty by a written document executed by authorized representatives of the Customer and Badger. 11.7 The parties acknowledge that they have read the Agreement and shall be bound by its terms and conditions. COST R ~1s'~f~~--~.~ By Donald E. Edwards Printed Name Mayor Title 7/5/'95 Date RMSplus® PROPRIETARY SOFTWARE LICENSE AGREEMENT This license agreement is entered into the date set forth below by and between Badger Meter, tnc., MiNvaukee, Wisconsin 53223 through its Utility Division ("Badger') and Licensee identified below, and governs the terms and conditions for Lkensee's use of Badger's trade secreUproprietary software associated with Badgers Automatic Meter Reading (AMR) system known as RMSplus for which good and valuable consideration has been paid by Licensee. Licensee security safeguards. Licensee agrees to give a copy of this agreement to every EDP employee now or hereafter assigned to work on the RMSplus AMR system and maintain the employee's receipt for such document in the employer's personnel file. LICENSEE'S EDP EMPLOYEES WILL BE INSTRUCTED TO FOLLOW THESE LICENSE RESTRICTIONS ON USE OF THE RMSplus DISKETTE Nature of Badger's proprietary rights in RMSplus software. Licensee acknowledges that Badger is the copyright owner and the trade secret owner of the proprietary software subject of this agreement. The subject matter of the RMSplus AMR system is the basis for patent application(s) filed by Badger with the U.S. Patent and Trademark office. Scope of RMSplus software licensed. This is a paid-up, nonexclusive license covering the operating diskette, which serial number is set forth below and is for use solely as operating software to the Headquarters System, together with any future modBCrttions or improvements supplied by Badger for these purposes. Limits on copying RMSplus software. Licensee agrees to make and keep only one archival copy of this software for safe keeping in a secure place acceptable to Badger, which acceptance will not be unreasonably withheld, such as a bank safety deposit box, or a company controlled safe off-premises from the Licensee's EDP facility. Licensee shall make no other copies without the prior written consent of Badger, which consent shall not be unreasonaby withheld. Limits on Licensee's use of the RMSplus proprietary software. Licensee and its employees may use the licensed software solely in conjunction with the RMSplus AMR System installed on Licensee's premises. Licensee shall not sublicense, rent, lease, give, transfer or loan the licensed software to any third party, including but not limited to other mun~ipalities, trade associations, software and EDP hardware suppliers, former empbyees, engineering consulting firms, provided however, that Badger's duly authorized service bureau representatives may use the software in connection with its service and maintenance activities. Licensee shall nnt permit the RMSplus AMR System to be installed by any party that is or could potentially become a competitor of Badger Meter, Inc. Licensee further agrees not to remove the licensed software from its on-premises EDP facility and to keep the software locked in a secure place on premises after office hours. Licensee shall notify licensor promptly if the licensed software is lost or destroyed. Replacement of defective diskettes. Defective diskettes will be replaced prompty upon return of the defective diskette to Badger at no charge. Expiration of this License. This license continues in full force and effect for the entire period during which Licensee owns, operates or possesses the RMSplus AMR System. Should Licensee dispose of its RMSplus System, Licensee shall prompty notify Badger and return ail copies of the RMSplus software to Badger. If Licensee desires to sell or lease the RMSplus AMR System to a third party, Licensee shall notify Badger immediatety. Badger shall detem~r-e whether ft desires to enter into a software license with the third party. In the event the third party is acceptable to Badger, Licensee may transfer the software to the third party after the License Agreement has been executed by the third party and Badger. In the event an agreement cannot be reached, Licensee must return the software to Badger. Licensee may so remain in possession of the software if it desires the opportunity to search for a third patty acceptable to Badger. Lkrrited Warranty. The RMSplus software is covered by the limited warranty issued by Badger on the entire RMSplus AMR system and is incorporated herein by reference. Entire Agreement. This is the entire understanding of the parties governing Licensee's use of the RMSplus software. Any changes to this license must be made in writing and signed by the party to be bound thereby. This license will be governed by the laws of Wisconsin. RMSplus SOFTWARE DISKETTES UNDER LICENSEE: Serial No. 8098 DATE OF THIS AGREEMENT: AUgUSt 10, 1994 AGREED: BADGER METER, INC. UTILITY DIVISION b its ssistant Secretary LICENSEE: City Of Canton Name of Municipal Utility 210 E. Chestnut St. Address Canton, IL. 61520-2731 City, St i Signature of Contracting Official fts Mayor Title EDP EMPLOYEES SHOULD FEEL FREE TO CONTACT THEIR SUPERIOR OR BADGER METER REPRESENTATIVES IN THE EVENT QUESTIONS ARISE CONCERNING THIS LICENSE.