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HomeMy WebLinkAboutReso 1973-6774Form No. 342 Rev. 9-71 RESOLUTION N0. 6774 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, APPROVING AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND BURROUGHS CORPORATION AMENDING THE AGREEMENT FOR LEASE OF A B2510 COMPUTER AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the City of Chula Vista does hereby resolve as follows: NOW, THEREFORE, BE IT RESOLVED that that certain agreement between THE CITY OF CHULA VISTA, a municipal corporation, and BURROUGHS CORPORATION, amending the agreement for lease of a B2510 computer, dated the 21st day of February 1973 a copy of which is attached hereto and incorporated herein, the same as though fully set forth herein be, and the same is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista be, and he is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by -_ ~'~~ George D. Lindberg, City Attorney Approved as to form by ~~~' ~~ George Lindberg, City Atto y ADOPTED AND APPROVED by the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA, this 13th day of March 193 by the following vote, to-wit: AYES: Councilmen Hyde, Egdahl, Scott, Hobel, Hamilton NAYES: Councilmen None ABSENT: Councilmen None ( / ATTEST ~- znc~ c_,~ City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) .---= Mayor of the City of Chula Vist I, City Clerk of the City of Chula Vista, California, DO HEREBY CERTIFY that the above is a full, true and correct copy of Resolution No. and that the same has not been amended or repealed. DATED City Clerk ~~ .~ BANKoFAMERICA CHULA VISTA BRANCH AllguSt lO, 1978 Gordon K. Grant Director of Finance City of Chula Vista 276 Fourth Avenue Chula Vista, California 92010 BILL OF SALE All right, title, and interest is hereby transferred to you on the following equipment: Style No. Description B2510 Central Processor B2004 40K Bytes Core Memory B2740-1 Operator Console B9340 Console Printer & Keyboard B2340 Console Printer Control B9111 Card Read (800 cpm) B9342-1 Line Printer (1100 lpm) B2242 Line Printer Control B9941 Additional 12 Print Positions B9381-23 Mag. Tape Cluster .3 Station .800 BPI .36KB .9 Tract B9372-1 Disk File Storage .lOM Bytes .20ms. Access B2373 Disk File Control ~~~~~~-~ D. J. Oma.hen Assistant Vice President Loans nm -.,_ BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION 295E STREET CHULA VISTA, CALIFORNIA 9201 0 J %' ./ BURF2OUCGHS PLACE DETROI-I , MICHIGAN 4f3'37_ February 21, 1973 Mr. Gordon Grant Director of Finance City of Chula Vista Chula Vista, California 92010 SUBJECT: City of Chula Vista Agreement For Lease of Personal Property and Purchase Option of a B2510 Computer System.' Dear Mr. Grant: We are pleased to acknowledge your order for the acquisition of a B2510 system, The order executed by you on December 20, 1972 has been accepted by Burroughs with the understanding that the inclusion of several contract clauses are appl.i.cahle and acceptable to you. Accordingly, your concurrence is requested to the insertion of the follow- ing changes to the above cited order, and that this letter shall be made a part of the order as though incorporated therein by reference: 1. Sales taxes and personal property taxes are the responsibility of the Bank of America National Trust and Savings Association. In no event shall Burroughs be liable for any sales taxes and personal property taxes based on this order. 2. Burroughs shall be allowed the recovery of transportation charges and rigging charges, if applicable. 3. Delete paragraph 3, page 3, "Software", in its entirety and insert the following: ++Form No. Title of Designated Agreement 3685-6 Program Froducts License" -- - ,, J !~ ^~`, Mr. Gordon. Grant. -2- February 21~ 1973 4. Add new paragraph "8. Assignment" as follows: "8. Assi.*n~, merit -Lessee agrees to assign its rights title and interest hereu~zder to Banl: of America National Trust and Savings Association under assignment terms acceptable to Lessor. Provided. such assignment is not effected on or before date the equipment ordered hereunder is delivered and installed, ready for use, the Lessee agrees to immediately enter into a supplemental agreement providing for payments hereunder: equal to Lessorts standard lease rates based on term of lease to be selected by Lessee." We appreciate this additional expression of the City of Chula Vi.stats confidence in Burroughs ability to satisfy its data processing requirements. Very truly yours, W Ten `ink ~~ Vice President - Marketing Western Region Business Machines Group Concur with the above. CITY OF ULA VIS ~~~yu~-~-' L" Jy Mayor of the City_ o~f ChulaC/Vista Date ~~ ~~t~~'~~[~L 1 1 l ~~ ~~ City Clerk Date .,s ~ / - ~~~~ ( proved As To Form) City Attorney Date ~3 - l 4 - r;3 /caw ~~ ~:~~ ~; ~,~ AGRL;T:r1l;rd`i' LEASE OF PERSONAL PROPERTY AI~1D OPTION WIIERLAS, the CITY OF CIIULA VISTA, CALIFORNIA, (hereinafter called '°Lessee") is simultaneously entering into an agreement with BURROUGIIS CORPORATION entitled "Lease of Personal Property"; WHEREAS, it is contemplated that such agreement may be assigned to a third party at the request of the "Lessee"; and WI-iER1,AS, the parties wish to set forth their rights and obligations with respect to the furnishing, use and performance of the equipment covered {or to be covered) by such agreement and the software and other services to be performed which rights and obli- gations shall continue after the sale to the third party. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the parties agree as follows: 1. That Lessor. hereby leases unto the Lessee and Lessee hereby hires of and from Lessor for a period of ~g months from and including the 1st day of January , 1973, to and including the last day of June , 19~, (her_einafter called the "full term") the following described property (herein called equipment) to wit: STYLE NO. DESCRIPTION r,,, B2510 Central Processor B2004 40K Bytes Core Memory B2740-1 Operator Console B9340 Console Printer & Keyboard B2340 Console Printer Control B9111 Card Read (800 cpm) B9342-1 Line Printer (1100 lpm) B2242 Line Printer Control B9941 Additional 12 Print Positions B9381-23 tag. Tape Cluster .3 Station .800 BPI .36KB .9 Tract B9372-1 Disk File Storage .lOM Bytes .20ms. Access B2373 Disk File Control TOTAL PURCHASE PRICE - $190,000.00 2. Lessee agrees to pay the amount of total unpaid rental charges in instalments as follows: (See Schedule "A" attached.) 3. Upon written notice to Lessor, given not later than ninety (90) days prior to the end of any fiscal year of Lessee, Lessee may terminate without penalty the Lease as of the end of that fiscal year. 4. Lessee agrees that the said equipment will be used by Lessee for the ordinary and usual work for which it is designed. It is further stipulated and agreed that during the term of this lease, - 1 - nr »~ Lessee shall be responsible for and shall pay all the charges for upkeep and/or storage of said equipment and shall make, at its own expense, any and all repairs and supply and pay for any and all parts and accessories needed to maintain and operate said equipment in proper condition and good running order, and that at the end of aforesaid term or any other termination thereof, as aforesaid, the Lessee shall redeliver said equipment, to Lessor, in as good condi- tion as when delivered to Lessee, reasonable wear and tear excepted; but any and all damage or depreciation caused by accident, negligence, fire or other casualty, or by failure to neglect to make repairs as needed, is not excepted. 5. Lessor covenants and warrants that said equipment is in good and safe operating condition and that Lessor is the sole owner of said equipment and that no other person, party, firm or corporation has any right, title, or interest in or to same and that during the term of this lease said Lessor will not sell or encumber said equipment, or any interest therein, except subject to the rights given the Lessee by virtue of this lease. 6. Lessee requires that Lessor's installation services shall include all wiring, assembly and connection of all internal cabling, all wiring and cabling carrying direct current, all wiring and connection of data communications cables and cables carrying information signals, the assembly and reaction of all "garage house", all wiring and cabling of alternating current within the system beyond the input circuit breaker; but shall not include the instal- lation, supply or connection of external electric alternating current. The Lessee shall be responsible for the supply installation and pro- vide connection of all external electric alternating current meeting manufacturer's electric power requirements from the main power source, either through conduit to the input circuit breaker or through flex- ible cord extending to within fifteen feet of the location of the equipment. Other than the foregoing, Lessor's installation services shall be limited to the assembly, adjustment and testing of equipment and instructions in the operation of the equipment and shall not cover supply or connection of electric power or other utilities or auxiliary facilities. 7. Lessee shall procure and maintain fire, extended coverage, vandalism and malacious mischief insurance to the full insurance value of the equipment, with loss payable to Lessor (and its assigns) and Lessee as their interests shall appear. 8. This agreement shall, in every respect, be binding on the parties hereto, and their respective successors and assigns. 9. Lessee and Lessor acknowledge receipt of an exact copy of this agreement. 10. Commencing at the time such risks pass to Lessee from the supplier of the equipment and continuing until Lessee has delivered possession of the equipment to Lessor, Lessee assumes the entire risk of loss, theft, destruction, damage of the equipment or liability of Lessor from any cause whatsoever and no such loss or liability shall relieve Lessee of its obligations hereunder. Lessee agrees to keep the equipment insured with responsible insurance companies satis- factory to Lessor to protect all interests of Lessor, at Lessee's expense, for the following risks and amounts of not less than One Million Dollars combined single limit on bodily in-,'ury and property damage liabilities and physical damage coverage in an amount not less than the original cast of the equipment; and Lessor may, but shall not be obligated to, insure said equipment at the expense of Lessee, - 2 - o-~~ CP ~ / if Lessee does not do so. Said insurance shall not be excess over other coverage but shall be primary insurance up to and including the stated policy limits. 111.1 such insurance shall provide for a ten (10) days prior written notice to Lessor of cancellation, alter- ation or reduction of coverage, and shall cover the interest of both. Lessor and Lessee in the equipment, or as the case may be, shall protect both Lessor and Lessee in respect to all risks arising out of the condition, maintenance, use or operation of the equipment. The liability insurance requirement herein shall be deemed satisfied when Lessor is named as an additional insured under the current comprehensive general liability insurance contract, in satisfactory amount, now in force on behalf of Lessee. For purposes of clarifi- cation, Lessee is specifically not required to carry "Electronic Data Processing Errors and Omissions" liability insurance coverage by this agreement, but may do so at the option of the Lessee. All such policies or certificates of insurance shall be delivered t.o Lessor. The proceeds of such insurance shall be applied toward the repair or replacement of said equipment or the satisfaction of liability asserted against Lessor. In the event Lessee is not in default here- under and has repaired or replaced the equipment or has satisfied any liability claims asserted against Lessor, the proceeds of any insurance resulting from any loss or casualty or liability asserted against Lessor, shall be remitted to Lessee upon satisfactory proof of such repair or replacement of said equipment or satisfaction of liability asserted against Lessor. Lessee's obligation to keep the equipment insured as provided herein shall continue so long as Lessee has physical custody or possession of the equipment notwithstanding that the lease of equipment may have expired according to its terms or have been terminated for any reason as set forth in the lease, or otherwise. 11. If the Lessee shall fail to pay any rental or other sums due under this lease or shall fail to observe or perform any other term, condition or provision of this lease, Lessor, in addition to any other rights or remedies it may have by law, at its election may: (a) Without retaking possession of the leased property, hold Lessee liable for all rents and other sums accrued and unpaid prior to any such default by Lessee and for all rents and other sums which shall become due thereafter under the terms of this lease and may recover such sums from Lessee from time to time as they become due or at any time thereafter (subject to any applicable statutes of limitation), or (b) Retake possession of the leased property and either, after having given Lessee written notice of its intention so to do and within ten (10) days following said written notice if Lessee has not by then cured the default by payment of any and all sums then due or by performance of the other obligations of Lessee hereunder, (i) terminate this lease and the Lessee's interest in said property by giving Lessee written notice to that effect in which event the Lessee shall be liable for all rents and other sums accrued and unpaid prior to such termination, or (ii) without terminating this lease, lease the property to a third party for the account of Lessee and recover monthly from Lessee any deficiency between the rents provided for herein and those received from such third party. 12. This instrument constitutes the entire agreement between Lessor and Lessee. When the word Lessor is used herein, it shall include all assignees of Lessor. If there be more than one Leasee named in this lease, the liability of each shall be joint and several. Lessor and Lessee agree that the property leased hereunder is now - 3 - ~~ ~~~ and shall remain personal property. No failure or delay on the part of Lessor in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or any other right, power or privilege. All rights and remedies existing under this lease are cumulative to, and not exclusive of, any rights or remedies other- wise available. 13. All notices required or permitted to be given shall be in writing and may be personally served or sent by United States mail and shall be deemed to have been given when deposited in the United States mail, registered, with postage prepaid and properly addressed. For the purposes hereof, the addresses of the parties hereto (until notice of a change thereof is served as provided in the preceding sentence) shall be that shown in this lease. 14. Upon the termination of the full term lease period all the right, title and interest of said Lessor in and to said equipment, shall vest in and become the property of said Lessee upon payment of One Dollar ($1.00) for clear title, and said Lessor covenants that it wi_11 thereupon execute to Lessee, a bill of sale of all its right, title and interest in and to said equipment as evidence of said transfer of title, anything in this lease to the contrary notwithstanding. All replacements, equipment, repairs or accessories made to or placed in or upon said equipment shall become a component part thereof and title thereto shall be immediately vested in Lessor and shall be included under the terms hereof. All advances made by Lessor to preserve said equipment or the interest of Lessor therein, including attorney's fees, or to pay insurance premium for insurance thereof or to discharge and pay any taxes, liens or en- cumbrances thereon shall be added to the unpaid balance of rentals due hereunder and shall be repayable to Lessee to Lessor immediately upon demand, and, if not paid upon demand, shall bear interest at the rate of 8o per annum until paid. IN WITNESS WHEREOF, the parties hereto have as of this 20th day of December , 1972, executed this Agreement by their duly authorized representatives. BURROUGHS CORPORATION Approved as to form by ~~~ City Attorney VICE Pi;ESIt7ENT-fu1APKETING ADDRESS: ADDRESS: ~ ~ ~~ CITY OF CHULA VISTA WARRANTY PROVISIONS WHEREAS, the CITY OF CHULA VISTA, CALIFORNIA, (hereinafter called "Lessee") is simultaneously entering into an agreement with BURROUGHS CORPORATION entitled "Lease of Personal Property"; WHEREAS, it is contemplated that such agreement may be assigned to a third party at the request of the Customer; and WHEREAS, the parties wish to set forth their rights and obligations with respect to the furnishing, use and performance of the equipment covered (or to be covered) by such agreement and the software and other services to be performed which rights and obli- gations shall continue after the sale to the third party. NOj-9, THEREFORE, in consideration df the mutual promises and covenants herein contained, the parties agree as follows: 1. Burroughs Warranty. Burroughs warrants that: (1) no applicable statute, regulation or ordinance of the United States or of a state has been violated in the manufacture and/or sale of the equipment (2) Burroughs has title to said equipment and the right to sell same; (3) for a period of one (1) year from installation, the equipment delivered under this agreement shall be free from defects in material and workmanship under normal use and service. Written notice and an explanation of circumstances concerning a claim that the equipment has proven defective in material or work- manship shall be given promptly by Lessee to Burroughs. Lessee's sale and exclusive remedy in the event of defect is expressly limited to the correction of such defect whether it be adjustment, repair or replacement, at Burroughs' election and at its sole expense, except that there shall be no obligation to replace or repair items which by their nature are expendable, such as, but not limited to, trans- istors, tubes, lamps, resistors, capacitors, belts and diodes. No representation or other affirmation of fact, including but not limited to, statements regarding capacity, suitability for use, or performance of the equipment shall be or be deemed to be a warranty of Burroughs for any purpose, nor give rise to any liability or obligation of Burroughs whatsoever. Burroughs warrants that the B2510 Computer configuration and the software when installed will be in good working order and will perform according to Burroughs' official published specifica- tions. THIS WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED INCLUDING, BUT NOT LIb'IITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OK FITNESS FOR A PARTICULAR PURPOSE. 2. Burroughs Patent Indemnity. (a) Burroughs shall defend or settle any suit or proceeding brought against Lessee based on a claim that any device made to Burroughs' design and furnished hereunder constitutes an infringement of any existing United States patent, provided Burroughs is notified promptly in writing and is given complete authority and information required for the defense of same and Burroughs shall pay all damages and costs awarded therein against Lessee, but shall not be responsible for any cost, expense or compromise incurred or made by Lessee without Burroughs' prior written consent. - 1 - ~~~~ (b) In the event any device furnished hereunder is in Burroughs' opinion likely to or does become the subject of a claim for patent infringement, Burroughs may at its option and expense procure for Lessee the right to continue using said device, or modify it to become non-infringing, but in the event Burroughs is not rea- sonably able to modify or otherwise procure for Lessee the right to continue using it, Burroughs will remove such device and refund to Lessee the amount paid in excess of a reasonable rental for past use. (c) Burroughs shall not be liable for any infringement or claim thereof based upon any of the following: use of the device in combination with other devices or with software not supplied by Burroughs, or with modifications made by Lessee. (d) The foregoing states the entire liability of Burroughs for all loss and damage whatsoever to Lessee arising from patent infringement. 3. Limitation of Liability and Remedy. IN NO EVENT SHALL BURROUGHS BE LIABLE FOR LOSS OF PROFITS OR OTHER ECONOMIC LOSS, INDIRECT, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES ARISING OUT OF ANY BREACH OF THE WARRANTY OR OBLI- GATIONS UNDER THE WARRANTY. BURROUGHS SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY, INSTALLATION OR FURNISHING OF THE EQUIPPIENT OR SERVICES UNDER THE AGREEMENTS. It is understood that Lessee assumes full responsibility for the overall effectiveness and efficiency of the operating environment in which Burroughs equipment and software are to function, as well as responsibility for the cooperation of its personnel. No action arising out of any claimed breach of the warranty or obligation under the warranty may be brought by either party more than two (2) years of ter the cause of action has accrued. 4. Maintenance. Lessee will contract, until title passes to the Lessee under said agreement, by separate agreement with Burroughs to maintain the equipment in good condition. No maintenance (remedial or preventive) is to be provided under the terms of said agreement or this Supplemental Agreement. 5. Governing Law. This agreement shall be construed according to the laws of the State of California. 6: Additions. In the event Lessee desires to add com- ponents to the system as initially listed in the agreement, such lease of additional components may be affected by an amendment to the Agreement and Supplemental Agreement subject to mutually agreed upon payment terms and conditions. The total cash price for such additional components shall be the current applicable Burroughs standard price (including discounts, if any). If the Lessee and the assignee of the agreement mutually agree to the financing of such additional components upon amendment to the agreement, Burroughs agrees to assign to the assignee of the agreement its interest in such additional components upon terms and conditions substantially similar to those entered into with respect to the initial system upon receipt of payment of the total cash price for such additional components. - 2 - ~G7~y The upgrading of components initially intalled which do not require physical replacement, shall be affected in the same manner as the addition of components (paragraph 1 above) and the total cash price shall be the difference between the original total cash price of the component and the then current total cash price of the upgraded component. 7. Software. Burroughs agrees to make available to the Lessee at no adds it onal charge all standard systems software which Burroughs now makes available as a standard price book item to equip- ment users. Such systems software to consist of_ operating systems, programming language compilers, and utility routines. This provision conveys only a non-exclusive license under Burroughs proprietary rights to such program material for use on equipment installed pursuant to said agreement, but such license does not include the right to re- produce, publish, or license such program material to others. Burroughs expressly reserves and the Lessee expressly consents that the entire right and title to such program material shall remain in Burroughs, and Burroughs has the exclusive right to protect by copyright or otherwise to reproduce, publish, sell and distribute such material to any other customer. In recognition of Burroughs' property rights in program material delivered to Lessee, Lessee further agrees to place on each copy or reproduction of such program material for use on his equipment the identical notice contained on the program material furnished by Burroughs to Lessee. IN WITNESS WHEREOF, the parties hereto have as of this 20th day of December , 1972, executed this Agreement by their duly authorized representatives. CITY OF CHULA VISTA ~ ,'~ Mayor of t City of `~~la V s a ATTEST n~~~~ "ty Clerk Approved as _t~o form by ~~ Ji ~~~~ ~, City Attorney BURROUGH5 CORPORATION 1Jj~F Fi:~SICc.~JT-P.'",~K.E~I~1.9 . - 3 - '/~(s 77~