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Ordinance No. 10,213ORDINANCE NO. 10,213 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE INTERIM CITY CLERK TO ATTEST TO AN AGREEMENT WITH ELINEAR SOLUTIONS FOR THE PURCHASE AND CONFIGURATION OF A SERVER AND WORKSTATIONS FOR THE NEW EMERGENCY OPERATIONS CENTER; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT OF FIFTY-ONE THOUSAND SEVEN HUNDRED EIGHTY-NINE AND NO/100 DOLLARS ($51,789.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section I: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute and the Interim City Clerk to attest to an agreement with eLinear Solutions for the purchase and configuration of a server and workstations for the new Emergency Operations Center. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to eLinear Solutions in an amount not to exceed FIFTY-ONE THOUSAND SEVEN HUNDRED EIGHTY-NINE AND NO/100 DOLLARS ($51,789.00) for services in accordance with the contract. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25%). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 22nd day of November, 2005. cl� S�� — CALVIN MUNDINGER, Mayor APPROVED AS TO FO d� Mf4ACIO RAMIREZ, SR., Ci ttorney RAKaren\Files\City Council\Ordinanees\2005\7\ovember 22\ELinearSolutionsContractOrdinanceRevised.doc • AGREEMENT THE STATE OF TEXAS § COUNTY OF HARRIS § This Agreement (this "Agreement".) is made and entered into on this _ day of November, 2005 (the "Effective Date") by and between the CITY OF BAYTOWN, a municipal corporation located in Harris and Chambers Counties, Texas, hereinafter called "City" or "Buyer," and eLinear Solutions, a Texas corporation located in Harris County, Texas, hereinafter called "eLinear." Buyer: I. DEFINITIONS As used in this Agreement, the following words and phrases are defined to mean: means City. City: means and refers to the City of Baytown, Texas, and all attendant boards, agencies, commissions and related bodies, along with their respective officers, agents and employees. City Manager: means the City Manager of the City of Baytown or his designated representative. eLinear: means eLinear Solutions, its officers, directors, agents, employees and assigns. Representative of eLinear: means Mike Lewis, President/CEO, or his duly designated representative. Work: means that work as described in the Scope of Work, which is attached hereto as Exhibit "A," is incorporated herein by this reference for all intents and purposes. I1. eLinear's WORK eLinear covenants and agrees to install, configure and test an IBM XSeries 366 server preloaded with Microsoft (MS) Windows 2003, MS Exchange and MS Sharepoint Portal for the new Emergency Operations Center Also to provide fifteen (15) IBM Thinkcentre S51 personal computers and monitors. These obligations are further detailed in Exhibit "A." Such Work shall be finally completed on or before January 1, 2006. Agreement, Page I BIT A 0 0 III. COMPENSATION The City agrees to pay eLinear a total of FIFTY-ONE THOUSAND SEVEN HUNDRED EIGHTY NINE AND N0/100 DOLLARS ($51,789.00) in accordance with Exhibit "A," within thirty (30) days after receipt of a written invoice therefor or 30 days after the completion and acceptance of the Work by the City Manager, whichever is later. 1► 104Ra1 This contract shall be in effect from and after the Effective Date and shall continue until the completion and acceptance of the Work by the City Manager and the expiration of all warranty periods, unless sooner terminated under the provisions of this Agreement. V. RIGHT TO INSPECT EQUIPMENT AND ELINEAR'S OPERATIONS The City, through its officers, agents, and employees, reserves the right to enter the place of business of eLinear for the purpose of inspecting equipment and eLinears's operations in relation to the Work. In accordance therewith, eLinear shall fully cooperate with the City and shall supply the City, upon request, with all information necessary for the City to ensure that eLinear is fulfilling its obligations under this Agreement. It is expressly understood that the City, its officers, agents or employees have full authority to reject any and all Work found to be not in accordance with this Agreement. Neither observations by the City nor inspections or approvals made by the City, or persons authorized under this Agreement to make such inspections or approvals, shall relieve eLinear from its obligation to perform the Work in accordance with the requirements of this Agreement. VI. ASSUMPTION OF LIABILITY BY CONTRACTOR eLinear hereby assumes all liability and responsibility for injuries, claims or suits for damages to persons or property of whatever kind or character, whether real or asserted occurring during the term of this Agreement, arising out of or by reason of the Work all other operations arising under or otherwise incident to the provisions of this Agreement. VII. INDEMNIFICATION ELINEAR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS AGENTS AND EMPLOYEES (COLELCTIVELY REFERRED TO AS "CITY" IN THIS ARTICLE), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, Agreement, Page 2 0 INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WORK DONE BY ELINEAR PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF ELINEAR'S BUSINESS OR ACTIVITIES, OR FROM ANY ACT OR OMISSION BY ELINEAR, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY AND/OR BY THE SOLE OR JOINT NEGLIGENCE OF ELINEAR. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH ELINEAR AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY ELINEAR TO INDEMNIFY, PROTECT AND DEFEND THE CITY FROM THE CONSEQUENCES OF THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE AND FROM THE CONSEQUENCES OF ELINEAR'S OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, ELINEAR FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL---- ACCEPTABLE TO THE CITY. THIS INDEMNIFICATION PROVISION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT AND SHALL REMAIN IN FULL FORCE AND EFFECT. VIII. INSURANCE Throughout the term of this Agreement and any extension thereof, eLinear at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from eLinear's operations and/or performance of the work under this Agreement, whether such © operations and/or performance be by eLinear, its agents, representatives, volunteers, employees Agreement, Page 3 or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable, eLinear's insurance coverage shall be primary insurance with respect to the City, its officers, agents and employees, including the City. Any insurance or self-insurance maintained by the City, its officials, agents and employees shall be considered in excess of eLinear's insurance and shall not contribute to it. Further, eLinear shall include. all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: Commercial General Liability (CGL) General Aggregate: $1,000,000 Per Occurrence: $500,000 Fire Damage: $50,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 b. Including Products Liability Coverage C. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile Policy (BAP) Combined Single Limits: $1,000,000 Coverage for "Any Auto." Workers' Compensation: Statutory Limits Employer's Liability: $500,000 a. Waiver of Subrogation required Upon execution of the Agreement, eLinear shall file with the City valid Certificates of insurance and endorsements acceptable to the City. Such Certificates shall contain a provision —that- coverage -afforded -under the --policies will not be ..canceled,. suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the City via certified mail, return receipt requested. eLinear shall also file with the City valid Certificates of Insurance covering all subcontractors. The following are general requirements applicable to all policies: ➢ AM Best Rating of B+; Vll or better. ➢ Insurance carriers licensed and admitted to do business in State of Texas will be accepted. Liability policies will be on occurrence form. ➢ The City, its officials and employees are to be added as Additional Insured to liability policies. 9 Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or certificates of insurance shall be furnished to City of Baytown's Agreement, Page 4 • representative. Certificates of insurance showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to any work being performed at the site. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to City of Baytown's representative. IX. TERMINATION The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement with or without cause upon ten (10) days' written notice from the City Manager to eLinear of the City's election to do so. Upon delivery of any notice of termination required herein, eLinear shall discontinue all services in connection with the performance of the Agreement and shall proceed to cancel promptly existing reservations for transportation services insofar as such requests are chargeable to the City pursuant to this Agreement. Within ten (10) days after termination of the Agreement, eLinear shall submit a final statement showing in detail the services satisfactorily performed and all other appropriate documentation required herein for payment of services. If the contract is terminated for cause, the City will have the right to deduct and withhold permanently the amount of any and all damages for which eLinear may be liable. All remedies of the City shall be cumulative and the City shall not be required to elect any nor deemed to have an election by proceeding to enforce any one remedy. X. NOTICE All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective addresses of -the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: ELINEAR eLinear Solutions Mike Lewis Agreement, Page 5 2901 W. Sam Houston Pkwy. N., Ste E-300 - - Houston, TX 77043 Fax: (713) 896-0510 CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Fax: (281) 420-6586 • XI. TIME 'OF THE ESSENCE Both eLinear and the City acknowledge that time is of the essence in this Agreement. XII. INDEPENDENT CONTRACTOR it is mutually understood and agreed that nothing in this Agreement is intended or shall be construed as in any way creating or establishing the relationship of partners, co-partners, or joint venturers between the parties hereto, or as constituting eLinear as an agent, employee or representative of the City for any purposes or in any manner whatsoever. The relationship of eLinear to the City shall be that of an independent contractor. XIII. COMPLIANCE WITH RULES AND REGULATIONS eLinear shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. XIV. SALE OF INTEREST eLinear may not sell, transfer or assign all or part interest in its rights or obligations under this Agreement to another party or parties without the prior express written approval of the City Manager of such sale or assignment, nor shall Contractor assign any monies due or to become due to it hereunder without the previous consent of the City Manager. The City may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City; however, the City hereby reserves the right to withhold its consent for any reason or no reason whatsoever. XV. NON -WAIVER T Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. XVI. SEVERABILITY All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. Agreement, Page 6 r1 u XVII. VENUE The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. XVIII. NO RIGHT TO ARBITRATION Notwithstanding anything to the contrary contained in this Agreement, the City and eLinear hereby agree that no claim or dispute between the City and eLinear arising out of or relating to this Agreement shall be decided by any arbitration proceeding, including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, eLinear consents to be joined in the arbitration proceeding if Pexx's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. XIX. NO THIRD PARTY BENEFICIARIES This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit eLinear and the City only. XX. AMBIGUITIES In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. Should there be a conflict between the Terms and Conditions specified in Exhibit "B" and the terms hereof, this Agreement shall control. XXI. AGREEMENT READ The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. XXII. AUTHORITY The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he/she represents. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple ® copies, each of which shall be deemed to be an original, but all of which shall constitute but one Agreement, Page 7. and the same Agreement on the _ day of 2005, the date of execution by the City Manager of the City of Baytown. ELINEAR SOLUTIO M KE LEWIS, President./CEO CITY OF BAYTOWN: GARY JACKSON, City Manager ATTEST: KELVIN KNAUF, Interim City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney STATE OF TEXAS § COUNTY OF HARRIS § Before me, .LJAay A LA, -Ab %,� , the undersigned notary public, on this day personally appeared Mike Lewis, in his capacity as President and CEO of eLinear Solutions, on behalf of such corporation, known tome; proved to me on the oath of ; or through his current {description of identification card or other document issued by the federal government or any state government that ® contains the photograph and signature of the acknowledging person} Agreement, Page 8 0 no hcthe person whose name iusubscribed 10the foregoing instrument, and acknowledged tonoc that he executed that instrument for the purposes and consideration therein expressed. (]ivcnundernnyhundunduoo|ofo[�cethio\�� day of 2885. IA -WI -IDA LAMBIN 'No I ary Public my (-ornniission Expire, Mvcommission expires: 7 x:m"onmu\CommcmcL/nm,uvtut*nmzmn0/ncarDraft aoCxxm"mmnmix°, .om Agreement, Page y eLinear, Inc & Subsidiaries eLinear Solutions/Netview Technologies TanSeco Systems Dynamic Lan Solutions ®2901 W. Sam Houston Pkwy N Suite E-300 Houston, TX 77043 0 Ph: 713-896-0500 Fax: 713-896-0510 CUSTOMER: City of Baytown ACCOUNTS PAYABLE P.O. Box 424 Baytown, TX - 77522 Work Quote SHIP TO: City of Baytown Dennis Wells 2401 Market Street Baytown, TX - 77522 Ph:2814205817 Date: 11108/2005 WO No. 38553 PO # Terms Expected Start Date Expected End Date NET 30 - 11/1512005 11/15/2005 Work Order Account Account Rep Reference Page 5115 Scott Crain 1 of 1 L Item Description Drop Qty Ship Config Price M Amount 1 88631RU XSERIES 366 XEON-MP 1.0 $7,573.00 EA $7,573.00 2 73P2866 2X1GB ECC DDR2 SERAM 1.0 $757.00 EA $757.00 3 26K5654 36AGB 10K 2.51N SAS HDD 6.0 $454.00 EA $2,724.00 4 32P1020 APC 2U SMART UPS 1400VA 1.0 $940.00 EA $940.00 5 13N2227 SERVERAID 81 SAS CTRKR 1.0 $606.00 EA $606.00 6 P73-00594 GOV WIN SVR 2003 STD 1.0 $744.00 EA $744.00 7 P73-01313 WINDOWS SVR STD 2003 1.0 $30.00 EA $30.00 8 81712DU THINKCENTRE S51 P4-3.OGHZ 15.0 $1,257.00 EA $18,855.00 9 9417ABI THINKVISION L171 17.0 IN 15.0 $374.00 EA $5,610.00 10 21301TX IBM UPS 75OTLV 15.0 $330.00 EA $4,950.00 11 312-02716 EXCHANGE SVR 2003 ENG 1.0 $745.00 EA $745.00 12 381-01907 EXCHANGE CAL 2003 ALL 20.0 $72.00 EA $1,440.00 13 312-02810 M.S. Exchange 2003 Media Kit 1.0 $30.00 EA $30.00 14 H04-00497 SHAREPOINT PORTAL SVR 2003 1.0 $4.265.00 EA $4,265.00 15. H05-00420 SHAREPOINT PORTAL CAL 2003 20.0 $77.00 EA $1,540.00 16 H04-00499 MLF SHAREPOINT PORTAL 1.0 $30.00 EA $30.00 17 ES-TSG-CFG SERVER CONFIGURATION 10.0 $95.00 hr $950:00 Sub Total $51,789.00 S & H $0.00 Total Tax $0.00 Total $51,789.00 Balance $51,789.00 WMIT A Notes: 1. Prices are subject to change based on manufacturer price variations. The quote is valid for 30 days unless it is specified. 2. Only the Chief Executive Officer of eLinear may sign and authorize contracts on behalf of eLinear. Therefore, no contract, written or oral, is created between eLinear, Inc., or its subsidiaries, and you or any other party unless if is signed by the Chief Executive Officer of eLinear, Inc. AGREEMENT THE STATE OF TEXAS § COUNTY OF HARRIS § This Agreement (this "Agreement") is made and entered into on thi day of bbt t , 2005 (the "Effective Date") by and between the CITY OF BAYTO , a municipal corporation located in Harris and Chambers Counties, Texas, hereinafter called "City" or "Buyer,"and eLinear Solutions, a Texas corporation located in Harris County, Texas, hereinafter called "eLinear." I. DEFINITIONS As used in this Agreement, the following words and phrases are defined to mean: Buyer: means City. City: means and refers to the City of Baytown, Texas, and all attendant boards, agencies, commissions and related bodies, along with their respective officers, agents and employees. City Manager: means the City Manager of the City of Baytown or his designated representative. eLinear: means eLinear Solutions, its officers, directors, agents, employees and assigns. Representative of eLinear: means Mike Lewis, President/CEO, or his duly designated representative. Work: means that work as described in the Scope of Work, which is attached hereto as Exhibit "A," is incorporated herein by this reference for all intents and purposes. II. eLinear's WORK eLinear covenants and agrees to install, configure and test an IBM XSeries 366 server preloaded with Microsoft (MS) Windows 2003, MS Exchange and MS Sharepoint Portal for the new Emergency Operations Center Also to provide fifteen (15) IBM Thinkcentre S51 personal computers and monitors. These obligations are further detailed in Exhibit"A." Such Work shall be finally completed on or before January 1, 2006. Agreement,Page 1 III. COMPENSATION The City agrees to pay eLinear a total of FIFTY-ONE THOUSAND SEVEN HUNDRED EIGHTY NINE AND NO/100 DOLLARS ($51,789.00) in accordance with Exhibit"A," within thirty (30) days after receipt of a written invoice therefor or 30 days after the completion and acceptance of the Work by the City Manager,whichever is later. IV. TERM This contract shall be in effect from and after the Effective Date and shall continue until the completion and acceptance of the Work by the City Manager and the expiration of all warranty periods, unless sooner terminated under the provisions of this Agreement. V. RIGHT TO INSPECT EQUIPMENT AND ELINEAR'S OPERATIONS The City, through its officers, agents, and employees, reserves the right to enter the place of business of eLinear for the purpose of inspecting equipment and eLinears's operations in relation to the Work. In accordance therewith, eLinear shall fully cooperate with the City and shall supply the City, upon request, with all information necessary for the City to ensure that eLinear is fulfilling its obligations under this Agreement. It is expressly understood that the City, its officers, agents or employees have full authority to reject any and all Work found to be not in accordance with this Agreement. Neither observations by the City nor inspections or approvals made by the City, or persons authorized under this Agreement to make such inspections or approvals, shall relieve eLinear from its obligation to perform the Work in accordance with the requirements of this Agreement. VI. ASSUMPTION OF LIABILITY BY CONTRACTOR eLinear hereby assumes all liability and responsibility for injuries, claims or suits for damages to persons or property of whatever kind or character, whether real or asserted occurring during the term of this Agreement, arising out of or by reason of the Work all other operations arising under or otherwise incident to the provisions of this Agreement. VII. INDEMNIFICATION ELINEAR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS AGENTS AND EMPLOYEES (COLELCTIVELY REFERRED TO AS "CITY" IN THIS ARTICLE), FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, Agreement,Page 2 INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WORK DONE BY ELINEAR PURSUANT TO THIS AGREEMENT, THE CONDUCT OR MANAGEMENT OF ELINEAR'S BUSINESS OR ACTIVITIES, OR FROM ANY ACT OR OMISSION BY ELINEAR, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER PERSON OR ENTITY AND/OR BY THE SOLE OR JOINT NEGLIGENCE OF ELINEAR. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH ELINEAR AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY ELINEAR TO INDEMNIFY, PROTECT AND DEFEND THE CITY FROM THE CONSEQUENCES OF THE CITY'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE AND FROM THE CONSEQUENCES OF ELINEAR'S OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, ELINEAR FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. THIS INDEMNIFICATION PROVISION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT AND SHALL REMAIN IN FULL FORCE AND EFFECT. VIII. INSURANCE Throughout the term of this Agreement and any extension thereof, eLinear at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from eLinear's operations and/or performance of the work under this Agreement, whether such operations and/or performance be by eLinear, its agents, representatives, volunteers, employees Agreement,Page 3 or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. eLinear's insurance coverage shall be primary insurance with respect to the City, its officers, agents and employees, including the City. Any insurance or self-insurance maintained by the City, its officials, agents and employees shall be considered in excess of eLinear's insurance and shall not contribute to it. Further, eLinear shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: Commercial General Liability (CGL) General Aggregate: $1,000,000 Per Occurrence: $500,000 Fire Damage: $50,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 b. Including Products Liability Coverage c. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile Policy(BAP) Combined Single Limits: $1,000,000 Coverage for"Any Auto." Workers' Compensation: Statutory Limits Employer's Liability: $500,000 a. Waiver of Subrogation required Upon execution of the Agreement, eLinear shall file with the City valid Certificates of Insurance and endorsements acceptable to the City. Such Certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the City via certified mail, return receipt requested. eLinear shall also file with the City valid Certificates of Insurance covering all subcontractors. The following are general requirements applicable to all policies: > AM Best Rating of B+; VII or better. > Insurance carriers licensed and admitted to do business in State of Texas will be accepted. > Liability policies will be on occurrence form. > The City, its officials and employees are to be added as Additional Insured to liability policies. > Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or certificates of insurance shall be furnished to City of Baytown's Agreement,Page 4 representative. Certificates of insurance showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to any work being performed at the site. > Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to City of Baytown's representative. IX. TERMINATION The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement with or without cause upon ten (10) days' written notice from the City Manager to eLinear of the City's election to do so. Upon delivery of any notice of termination required herein, eLinear shall discontinue all services in connection with the performance of the Agreement and shall proceed to cancel promptly existing reservations for transportation services insofar as such requests are chargeable to the City pursuant to this Agreement. Within ten (10) days after termination of the Agreement, eLinear shall submit a final statement showing in detail the services satisfactorily performed and all other appropriate documentation required herein for payment of services. If the contract is terminated for cause, the City will have the right to deduct and withhold permanently the amount of any and all damages for which eLinear may be liable. All remedies of the City shall be cumulative and the City shall not be required to elect any nor deemed to have an election by proceeding to enforce any one remedy. X. NOTICE All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: ELINEAR eLinear Solutions Mike Lewis 2901 W. Sam Houston Pkwy.N., Ste E-300 Houston, TX 77043 Fax: (713) 896-0510 CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Fax: (281)420-6586 Agreement,Page 5 XI. TIME OF THE ESSENCE Both eLinear and the City acknowledge that time is of the essence in this Agreement. XII. INDEPENDENT CONTRACTOR It is mutually understood and agreed that nothing in this Agreement is intended or shall be construed as in any way creating or establishing the relationship of partners, co-partners, or joint venturers between the parties hereto, or as constituting eLinear as an agent, employee or representative of the City for any purposes or in any manner whatsoever. The relationship of eLinear to the City shall be that of an independent contractor. XIII. COMPLIANCE WITH RULES AND REGULATIONS eLinear shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. XIV. SALE OF INTEREST eLinear may not sell,transfer or assign all or part interest in its rights or obligations under this Agreement to another party or parties without the prior express written approval of the City Manager of such sale or assignment, nor shall Contractor assign any monies due or to become due to it hereunder without the previous consent of the City Manager. The City may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City; however,the City hereby reserves the right to withhold its consent for any reason or no reason whatsoever. XV. NON-WAIVER Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. XVI. SEVERABILITY All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. Agreement,Page 6 XVII.VENUE The place of making and the place of performance for all purposes shall be Baytown, Harris County,Texas. XVIII. NO RIGHT TO ARBITRATION Notwithstanding anything to the contrary contained in this Agreement, the City and eLinear hereby agree that no claim or dispute between the City and eLinear arising out of or relating to this Agreement shall be decided by any arbitration proceeding, including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, eLinear consents to be joined in the arbitration proceeding if Pexx's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. XIX. NO THIRD PARTY BENEFICIARIES This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit eLinear and the City only. XX. AMBIGUITIES In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. Should there be a conflict between the Terms and Conditions specified in Exhibit"B"and the terms hereof,this Agreement shall control. XXI. AGREEMENT READ The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. XXII. AUTHORITY The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he/she represents. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one Agreement,Page 7 and the same Agreement on the��vday of b`7'Lltj , 2005, the date of execution by the City Manager of the City of Baytown. ELINEAR SOLUTIONS . cc. C a M E LEWIS, President/CEO CITY OF BAY OWN: ARY JACK , City Manager ATTEST: LVIN KNA , nterim Ci lerk APPROVED AS TO FORM: NACIO RAMIREZ, SR ity Attorney STATE OF TEXAS § § COUNTY OF HARRIS § Before me, L)A..+ok LA"IS 1") , the undersigned notary public, on this day personally appeared Mike Lewis, in his capacity as President and CEO of eLinear Solutions, on behalf of such corporation, ✓ known to me; proved to me on the oath of ; or through his current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) Agreement,Page 8 to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this, day of e ,2005. to lie ' and for the State of L .;�:;;4. WANDAL Texas .. "\ '\ Notary Public State of Texas-,. t';. '� My Mycommission Commission expires: �? ado September 22,20077 R:\Karen\Files\Contracts\eLinear Solutions\2005\Elinear Draft EOC HardwareReviewed.doc Agreement,Page 9 eLinear, Inc& Subsidiaries eLinear Solutions/Netview Technologies TanSeco Systems Work Quote Dynamic Lan Solutions 2901 W.Sam Houston Pkwy N Date: 11/08/2005 Suite E-300 WO No. 38553 Houston,TX 77043 Ph: 713-896-0500 Fax:713-896-0510 CUSTOMER: SHIP TO: City of Baytown 1-City of Baytown ACCOUNTS PAYABLE Dennis Wells P.O. Box 424 2401 Market Street Baytown, TX-77522 Baytown, TX-77522 Ph: 2814205817 PO# Terms Expected Start Date Expected End Date NET 30 - 11/15/2005 11/15/2005 Work Order Account Account Rep Reference Page 5115 Scott Crain 1 of 1 Drop L Item Description Qty Ship Config Price M Amount 1 88631RU XSERIES 366 XEON-MP 1.0 $7,573.00 EA $7,573.00 2 73P2866 2X1GB ECC DDR2 SERAM 1.0 $757.00 EA $757.00 3 26K5654 36.4GB 10K 2.51N SAS HDD 6.0 $454.00 EA $2,724.00 4 32P1020 APC 2U SMART UPS 1400VA 1.0 $940.00 EA $940.00 5 13N2227 SERVERAID 81 SAS CTRKR 1.0 $606.00 EA $606.00 6 P73-00594 GOV WIN SVR 2003 STD 1.0 $744.00 EA $744.00 7 P73-01313 WINDOWS SVR STD 2003 1.0 $30.00 EA $30.00 8 81712DU THINKCENTRE S51 P4-3.0GHZ 15.0 $1,257.00 EA $18,855.00 9 9417AB1 THINKVISION L171 17.0 IN 15.0 $374.00 EA $5,610.00 10 21301TX IBM UPS 750TLV 15.0 $330.00 EA $4,950.00 11 312-02716 EXCHANGE SVR 2003 ENG 1.0 $745.00 EA $745.00 12 381-01907 EXCHANGE CAL 2003 ALL 20.0 $72.00 EA $1,440.00 13 312-02810 M.S.Exchanae 2003 Media Kit 1.0 $30.00 EA $30.00 14 H04-00497 SHAREPOINT PORTAL SVR 2003 1.0 $4,265.00 EA $4,265.00 15 H05-00420 SHAREPOINT PORTAL CAL 2003 20.0 $77.00 EA $1,540.00 16 H04-00499 MLF SHAREPOINT PORTAL 1.0 $30.00 EA $30.00 17 ES-TSG-CFG SERVER CONFIGURATION 10.0 $95.00 hr $950.00 Sub Total $51,789.00 S & H $0.00 Total Tax $0.00 Total $51,789.00 Balance $51,789.00 Notes: IB� i‘ 1.Prices are subject to change based on manufacturer price variations. The quote is valid for 30 days unless it is specified. I 2. Only the Chief Executive Officer of eLinear may sign and authorize contracts on behalf of eLinear. Therefore,no contract, written or oral,is created between eLinear, Inc., or its subsidiaries,and you or any other party unless it is signed by the Chief Executive Officer of eLinear, Inc.