R-21-15 Resolution Approving an Agreement with Brainiff Communications, Inc. Resolution No. I -31
A Resolution Approving an Agreement with Brainiff Communications, Inc.
WHEREAS, the President and Board of Trustees desire to enter into an Agreement with
Brainiff Communications, Inc., substantially in the form attached hereto as Exhibit A;
BE IT RESOLVED by the Village President and Board of Trustees of the Village of
Lemont as follows:
SECTION ONE: The foregoing findings and recitals, and each of them, are hereby
adopted as Section One of this Resolution and are incorporated by reference as if set forth verbatim
herein
SECTION TWO: The Village Administrator is authorized to execute the Agreement
attached hereto as Exhibit A, to make minor changes to the document prior to execution which
does not materially alter the Village's obligations, and to take any other steps necessary to carry
out this Resolution.
SECTION THREE: This Resolution shall be in full force and effect from and after its
passage and approval as provided by law.
PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES
OF THE VILLAGE OF LEMONT,COUNTIES OF COOK,WILL AND DUPAGE,
ILLINOIS on this 13th day of April,2015.
PRESIDENT AND VILLAGE BOARD MEMBERS:
AYES: NAYS: ABSENT: ABSTAIN
Debby Blatzer
Paul Chialdikas V
Clifford Miklos
Ron Stapleton
Rick Sniegowski
Jeanette Virgilio
B ' . '. AVES
#637388 1
President
ATTEST:
4•01_ 44/41,1101/11
C EN M. SMOL
EN
Village Clerk
#637388 2
EXHIBIT A
Agreement with Brainiff Communications, Inc.
#637388 3
BRAINIFF COMMUNICATIONS,Inc.
This Agreement ("Agreement") is made and entered into this 13th of
April , 2015, by and between Brainiff Communications, inc., an Illinois
Corporation ("BRAINIFF"), and the Village of Lemont, an Illinois municipal corporation
("Village"). BRAINIFF and the Village are hereinafter sometimes referred to individually as a
"Party" and collectively as the "Parties."
1. BRAINIFF Responsibilities. BRAINIFF will provide and install a signal siren and
SCADA controls as indicated in Exhibit A. (Term #5 of Exhibit A shall be not considered part of
this Agreement).
2, Subcontractors. BRAINIFF shall disclose all subcontractors to the Village's
designee prior to any work and/or installation being performed. The Village shall have the sole
discretion to deny the use of a particular subcontractor.
3. Installation. The Village authorizes BRAINIFF, its agents, employees and
approved subcontractors to install and/or service the signal siren and SCADA controls, and in
doing so, make any necessary inspections, tests, changes and repairs required. Village shall
allow BRAINIFF, its agents, employees and approved subcontractors reasonable access to the
site in which said installation and maintenance shall be performed. Reasonable access shall be
allowed to BRAINIFF upon the receipt and confirmation of notice to the Village from BRAINIFF.
in the event of an emergency,the Village has the right to waive this notice requirement.
4. Term and Termination. This Agreement shall be effective as of the date this
Agreement is signed by all Parties. The Village may terminate this Agreement at any time upon
30 days written notice to BRAINIFF. In the event that this Agreement is so terminated,
BRAINIFF shall be paid for all materials and labor provided up to the date of Termination.
5. BRAINIFF shall deliver and install the signal siren and SCADA
controls within 4 months of the execution date of this Agreement.,
6. Warranties.
BRAINIFF warrants each new product manufactured by BRAINIFF to be free from defect
in material and workmanship, under normal use and service, for a period of two years on parts
replacement and one year on labor from the date of delivery to the first user-purchaser. During
this warranty period,the obligation of BRAINIFF is limited to repairing or replacing, as BRAINIFF
may elect, any parts of such product which, after examination by BRAINIFF disclosed to be
defective in material and/or workmanship. BRAtNIFF will provide warranty for any unit which is
delivered, transported prepaid, to Braniff's facility or designated authorized warranty service
center for examination and such examination reveals a defect in material and/or workmanship.
This warranty does not cover travel expenses, the cost of specialized equipment for gaining
access to the product, or labor charges for removal and re-installation of the product.
BRAINIFF's warranty shall not apply to components or accessories, not manufactured by
BRAINIFF, that have a separate warranty by the original manufacturer, such as, but not limited
to, distributed emergency lighting, warning and notification equipment and batteries. This
warranty does not extend to any unit which has been subject to abuse, misuse, improper
installation or which has been inadequately maintained, nor to units which have problems
relating to service or modification at any facility other than BRAINIFF's facility, a facility used or
approved by BRAINIFF or authorized warranty service centers. THERE ARE NO OTHER
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT
SHALL BRANIFF BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT OR CONSEQUENTIAL
DAMAGES ARISING OUT OF ANY SUCH DEFECTS IN MATERIAL OR WORKMANSHIP.
7, Licenses. BRAINIFF shall obtain, at its own expense, all permits and licenses
which may be required to complete the Work, andjor required by municipal, state, and federal
regulations and laws.
8. Indemnification.
A. To the fullest extent permitted by law, BRAINIFF shall defend, hold
harmless, and indemnify the Village, their corporate authorities, trustees, officers, directors,
agents, and employees from and against any and all injury, death, loss, property damage,
judgments, liens, claims, suits, liabilities, actions,causes of action,demands, expenses,costs, or
other liabilities of any character (including reasonable attorneys fees) arising in whole or in
part, relating to or resulting from:
(1) BRAINIFF's and any subcontractor's performance of, or failure to
perform, the services or any part thereof, and concurrent negligence or fault of
BRAINIFF, except to the extent caused by the sole negligence of the Village;and
(2) the infringement of any patent,trademark or copyright;and
(3) the failure to comply with, or violation of, any federal, state or local law,
statute,regulation, rule,ordinance,order, or governmental directive;
In connection with any such liabilities, the Village, their officers, agents, employees,
representatives and their assigns shall have the right to defense counsel of their choice and
BRAINIFF shall be solely liable for all costs,fees and expenses of such defense. The terms of this
indemnity shall survive the suspension, expiration or termination of this Agreement.
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B. Kotecki Waiver. BRAINIFF (and any subcontractor into whose
subcontract this clause is incorporated) agrees to assume the entire liability for all personal
injury claims suffered by its own employees and waives any limitation of liability defense based
upon the Worker's Compensation Act and cases decided thereunder. BRAINIFF agrees to
indemnify and defend the Village from and against all such loss, expense, damage or injury,
including reasonable attorneys'fees, which the Village may sustain as a result of personal injury
claims by BRAINIFF's employees, except to the extent those claims arise as a result of the
Village's sole negligence.
9. Insurance. Contemporaneous with execution of this Agreement, BRAINIFF shall
provide the Village with certificates and policies of insurance, including, without limitation,
comprehensive general liability, automobile liability, and professional liability, all with
coverages and limits acceptable to the Village. BRAINIFF shall name the Village, its elected and
appointed officials, officers, employees and agents as an additional insured on any such
insurance. For good cause shown, the Village may extend the time for submission of the
required policies of insurance upon such terms, and with such assurances of complete and
prompt performance, as the Village may impose in the exercise of its sole discretion. Such
insurance shall provide that no change, modification in, or cancellation of any insurance shall
become effective until the expiration of 30 days after written notice shall have been given by
the insurance company to the Village. BRAINIFF shall, at all times during the term of this
Agreement, maintain and keep in force,at the BRAINIFF's expense,the insurance coverages.
10. Relationship of the Parties. BRAINIFF shall act as an independent contractor in
providing and performing all services. Nothing in,or done pursuant to,this Agreement shall be
construed (1) to create the relationship of principal and agent, employer and employee,
partners, or joint venturers between the Village and BRAINIFF;or (2)to create any relationship
between the Village and any subcontractor of BRAINIFF. BRAINIFF shall take direction solely
and directly from the Village.
11. Conflict of Interest. BRAINIFF represents and certifies that, to the best of its
knowledge, (1) no Village employee or agent is interested in the business of BRAINIFF or this
Agreement; (2) as of the date of this Agreement neither BRAINIFF nor any person employed or
associated with BRAINIFF has any interest that would conflict in any manner or degree with the
performance of the obligations under this Agreement; and (3) neither BRAINIFF nor any person
employed by or associated with BRAINIFF shall at any time during the term of this Agreement
obtain or acquire any interest that would conflict in any manner or degree with the
performance of the obligations under this Agreement.
12. No Collusion. BRAINIFF represents and certifies that (1) BRAINIFF is not barred
from contracting with a unit of state or local government as a result of(a) a delinquency in the
payment of any tax administered by the Illinois Department of Revenue unless BRAINIFF is
contesting, in accordance with the procedures established by the appropriate revenue act, its
liability for the tax or the amount of the tax, as set forth in Section 11-42.1-1 et seq., 65 iLCS
5/11-421-1 et seq.; or (b) a violation of either Section 33E-3 or Section 33E-4 of Article 33E of
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the Illinois Criminal Code of 1961, 720 ILCS 5/33E-1 et seq.; (2) only persons, firms, or
corporations interested in this Agreement as principals have been those disclosed to the Village
prior to the execution of this Agreement; and (3)this Agreement is made by BRAINIFF without
collusion with any other person, firm, or corporation. If at any time it shall be found that
BRAINIFF has, in procuring this Agreement, colluded with any other person, firm, or
corporation, then BRAINIFF shall be liable to the Village for all loss or damage that the Village
may suffer, and this Agreement shall, at the Village's option, be null and void.
13, Sexual Harassment Policy. BRAINIFF certifies that it has a written Sexual
Harassment Policy in full compliance with 775 ILCS 5/2-105(A)(4).
14. Non-Discrimination. In all hiring or employment by BRAINIFF pursuant to this
Agreement, there shall be no discrimination against any employee or applicant for employment
because of age, race, gender, creed, national origin, marital status, or the presence of any
sensory, mental, or physical handicap, unless based upon a bona fide occupational
qualification. BRAINIFF agrees that no person shall be denied, or subjected to discrimination in
receipt of the benefit of any services or activities made possible by, or resulting from, this
Agreement.
15. Freedom of information Act. BRAINIFF agrees to furnish all documentation
related to this Agreement and any documentation related to the Village required under an
Illinois Freedom of Information Act (ILCS 140/1 et. seq.) ("FOIA") request within five (5) days
after Village issues notice of such request to BRAINIFF. BRAINIFF agrees to defend, indemnify
and hold harmless the Village, and agrees to pay all reasonable costs connected therewith
(including, but not limited to reasonable attorney's and witness fees, filing fees and any other
expenses) for the Village to defend any and all causes, actions, causes of action, disputes,
prosecutions, or conflicts arising from BRAINIFF's, actual or alleged violation of the FOIA or
BRAINIFF's failure to furnish all documentation related to a request within five (5) days after the
Village issues notice of a request.
Furthermore, should BRAINIFF request that the Village utilize a lawful exemption under
FOIA in relation to any FOIA request thereby denying that request, BRAINIFF agrees to pay all
costs connected therewith (such as reasonable attorneys' and witness fees, filing fees and any
other expenses) to defend the denial of the request. The defense shall include, but not be
limited to, challenged or appealed denials of FOIA requests to either the Illinois Attorney
General or a court of competent jurisdiction. BRAINIFF agrees to defend, indemnify and hold
harmless the Village, and agrees to pay all costs connected therewith (such as reasonable
attorneys' and witness fees, filing fees and any other expenses) to defend any denial of a FOIA
request by BRAiNIFF's request to utilize a lawful exemption to the Village.
16. Amendment. No amendment or modification to this Agreement shall be
effective unless and until such amendment or modification is in writing, properly approved in
accordance with applicable procedures, and executed by both the Village and BRAINIFF.
i
4
17. Assignment. This Agreement may not be assigned by the Village or by BRAINIFF
without the prior written consent of the other party.
18. Binding Effect. The terms of this Agreement shall bind and inure to the benefit
of the parties hereto and their agents,successors, and assigns.
19. Notice. All notice required or permitted to be given under this Agreement shall
be in writing and shall be (i) personally delivered, or (ii) delivered by a reputable overnight
courier, (iii)delivered by certified mail, return receipt requested, and deposited in the U.S. Mail,
postage prepaid, (iv) by telecopy. Telecopy notices shall be deemed valid only to the extent
that they are actually received by the individual to whom addressed and followed by delivery of
actual notice in the manner subscribed in either(i), (ii) or(iii) above within three business days
thereafter appropriate
r at the address set forth below.
Notices and communications to the VILLAGE shall be addressed to, and delivered at, the
following address:
Village of Lemont
Attn:Village Administrator
418 Main Street
Lemont, Illinois 60439
Notices and communications to BRAINIFF shall be addressed to, and delivered at, the
following address:
Brainiff Communications, Inc.
Attn: Jeffrey M. Ryba
4741 W. 136th Street
Crestwood, IL 60445
20. No Third Party Beneficiaries. No claim as a third party beneficiary under this
Agreement by any person, firm, or corporation other than BRAINIFF shall be made, or be valid,
against the Village.
21. Severability. if any term, covenant, condition, or provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void,or unenforceable,the remainder of
the provisions shall remain in full force and effect and shall in no way be affected, impaired, or
invalidated.
22. Entire Agreement. This Agreement constitutes the entire agreement between
the parties and supersedes any and all previous or contemporaneous oral or written
agreements and negotiations between the Village and BRAINIFF with respect to this Agreement
and the services provided hereunder.
23. Waiver. No waiver of any provision of this Agreement shall be deemed to or
constitute a waiver of any other provision of this Agreement (whether or not similar) nor shall
any such waiver be deemed to constitute a continuing waiver unless otherwise expressly
provided in this Agreement.
24. Rights Cumulative. Unless expressly provided to the contrary in this Agreement,
each and every one of the rights, remedies, and benefits provided by this Agreement shall be
cumulative and shall not be exclusive of any other such rights, remedies, and benefits allowed
by law.
25. Effective Date. This agreement shall be binding on the parties and effective only
as of the date fully executed by both parties.
26. No Waiver of Tort Immunity. Nothing contained in this Agreement shall
constitute a waiver by the Village of any right, privilege or defense available to Village under
statutory or common law, including but not limited to the Illinois Governmental and
Governmental Employees Tort immunity Act,745 ILCS 10/1-101 et seq.,as amended.
27. Governing Law and Jurisdiction. The Village and BRAINIFF agree that this
Agreement and any legal actions concerning its validity, interpretation and performance shall
be governed by the laws of the State of Illinois without regard to any conflict of laws provisions,
which may apply the laws of other jurisdictions. It is further agreed that any legal action
between the Village and BRAINIFF arising out of this Agreement or the performance of the
services shall be brought in a court of competent jurisdiction in the County of Cook, State of
Illinois.
28. Compliance with Laws. BRAINIFF shall comply with all applicable laws,
regulations and rules promulgated by any federal,state, local, or other governmental authority
or regulatory body pertaining to all aspects of the performance of the services under this
Agreement, now in effect, or which may become in effect during the performance of the
Services. The scope of the laws, regulations, and rules referred to in this paragraph includes,
but is in no way limited to, the Illinois Human Rights Act, Illinois Equal Pay Act of 2003,
Occupational Safety & Health Act along with the standards and regulations promulgated
pursuant thereto (including but not limited to those safety requirements involving work on
elevated platforms), all forms of traffic regulations, public utility, Interstate and Intrastate
Commerce Commission regulations, Workers' Compensation Laws, Public Construction
P Bond
Act, Prevailing Wage Laws, Public Works Preference Act, Employment of Illinois Workers on
Public Works Act, USA Security Act, federal Social Security Act (and any of its titles), and any
other law, rule or regulation of the Illinois Department of Labor, Department of Transportation,
Illinois Environmental Protection Act, Illinois Department of Natural Resources, Illinois
Department of Human Rights, Human Rights Commission, EEOC, and the Village of Lemont.
29. Acknowledgement. The undersigned hereby represent and acknowledge that
they have read the foregoing Agreement,that they know its contents, and that In executing this
Agreement they have received legal advice regarding the legal rights of the party on whose
behalf they are executing this Agreement, and that they are executing this Agreement as a free
and voluntary act and on behalf of the named parties.
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IN WITNESS WHEREOF,the parties have executed this Agreement as of the date first set
forth above.
BRAINIFF COMMUNICATIONS, INC., VILLAGE OF LEMONT,
an Illinois corporation a municipal corporation
By: By:
C
Name: f1Cr, Name: 667e L �r
Title: $ (.e;s < _ Title: \! L ^'usr
Address; 7L1 ' 7 ^7 ' qjr \ -
Address: S
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Exhibit A
BRANIFF COMMUNICATtC?NS,INC.
4741 W.136w Ste Clwattwood.I bets 60445 QUOTATION
Voice:(708)697-3200 Fats:(708)597-3307
QUOTATION NO.MUST 08 REFERENCED ON YOUR QUOTATION NO.. WI-1312A21413.1
PURCItASE ORDER QUOTE DATE December 2,2014
PAGE?OE 2 QUOTE EFFECTIVE TWIU: Mar&T.3.710 is
WRNS/ Net 30 Days
SNIP AA: Job 5t8 Owlvery as Braniff Truck
QUOTED TO SHIP TO
Village at Lemont EMA VAtege of Lemont EMA
Mtn:Thomas Ballard,Director Attn Thomas Stallard.Drente*.
+118 Maln Street 418 Main Street
Lemont,It.60439 Lemont,IL 90439
Voice:630-257-6689
Fax.630-257-7468
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SALES TAX $0.00
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TOTAL $2T,73200
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USA ACCEPTED eV.
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BRANIFF COMMUNICATIONS.INC-
4741 W.13E^SW!,Cn.wwod,phn0ic80445 QUOTATION
Voice:(706)587-3200 Fax:(708)597-3307
QUOTATION NO.MUST RE REFERENCE()ON YOUR QUOt'TMON NO,: 8Q-1$1x!3146.1
PURCHASE ORDER QUOTE BATE December 3 2014
PAGE 2 OF 1 QUOTE EFFECTIVE POW: Marc 3.7015
TERMS: Nei 30 Darz
SHIP VIA: Job Site Delivery via 6cr.uff True*
QUOTEfl TO' SHIP TO:
Village of Lernoni EMA Village al Larnont FIMA
Attn:Thomas Balard,Director Attn:Thomas Bollard;Director
418 Main Street 418!lain$ttlef
Lentorrl,IL 50439 LanonL IL 60433
Voice:630.267$689
F 630-257-7468
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QUOTATION NOTES(hpalotian Sanoorsi
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SUBTOTAL 1.2 t,27Z 40
SALES TAX: 50.00
SHIPPING 6 MAf40LING-. 80 OD
TOTAL- $21,33200
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