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HomeMy WebLinkAbout4.493 Original Contract . . . </. </93 .- . '. -- CONTRACT BETWEEN THE THE CITY OF PORT ANGELES AND S & B INC. FOR WASTEWATER UTILITY SCADA SYSTEM UPGRADES PROJECT 04-22 THIS CONTRACT is made and entered into this I ~ day of Q1 ~ Q , 2005, by and between THE CITY OF PORT ANGELES, a non-charter e city of the State of Washington, (hereinafter called the "CITY") and S & 8 Inc., a Washington Corporation (hereinafter called the "CONTRACTOR"). WHEREAS, the CITY desires to continue the development and implementation of a Supervisory Control And Data Acquisition (SCADA) System to assist in monitoring and controlling the City's Wastewater System, and WHEREAS, the CITY desires to engage the professional services and assistance of a qualified firm to perform the scope of work as detailed in Exhibit A, and WHEREAS, the City Council has passed a Resolution designating S &8 Inc. as the sole source for the design, acquisition, and installation of additional SCADA System facilities for the CITY's Wastewater System and declaring an exception to normal bidding requirements, and WHEREAS, the CONTRACTOR represents that it has the background, experience, and ability to perform the required work in accordance with the standards of the profession, and WHEREAS, the CONTRACTOR represents that it will provide qualified personnel and appropriate facilities necessary to accomplish the work; NOW, THEREFORE, in consideration of the above representations and the terms, conditions, covenants and agreements set forth below, the parties hereto agree as follows: I. SCOPE OF WORK The scope of professional services to be performed and the results to be achieved by the CONTRACTOR shall be as detailed in the attached Exhibit A and shall include all services and material necessary to accomplish the work. The CITY may review the CONTRACTOR'S work product, and if it is not satisfactory, the CONTRACTOR shall make such changes as may be required by the CITY. Such changes shall not constitute "Extra Work" as related in Section XI of this Contract. The CONTRACTOR agrees that all services performed under this Contract shall be in accordance with the standards of the profession and in compliance with applicable federal, state and local laws. The Scope of Work may be amended upon written approval of both parties. City of Port Angeles - Apnl 2005 Page 1 of 7 II. OWNERSHIP OF DOCUMENTS Upon completion of the work, all documents, exhibits, photographic negatives, or other presentations of the work shall (except as applicable in Section XVII below) become the property of the CITY for use without restriction and without representation as to suitability for reuse by any other party unless specifically verified or adapted by the CONTRACTOR. However, any alteration or reuse of the documents, by the City or by others acting through or on behalf of the City, will be at the City's sole risk. III. DESIGNATION OF REPRESENTATIVES Each party shall designate its representatives in writing. The CONTRACTOR'S representative shall be subject to the approval of the CITY. IV. TIME OF PERFORMANCE The CONTRACTOR may begin work upon execution of this Contract by both parties. The time of performance (performance period) for the Contract is 90 days from the date of award. V. PAYMENT The CITY shall pay the CONTRACTOR as set forth in this section of the Contract. Such payment shall be full compensation for work performed, services rendered, and all labor, materials, supplies, equipment and incidentals necessary to complete the work. A. The CONTRACTOR shall submit invoices to the CITY on a monthly basis. Invoices shall indicate the specific task or activity in the Scope of Work to which the costs are related. 8. The CITY shall review the invoices and make payment for the percentage of the project that has been completed less the amounts previously paid. C. The CONTRACTOR invoices are due and payable within 30 days of receipt. In the event of a disputed billing, only the disputed portion will be withheld from payment. D. Final payment for the balance due to the CONTRACTOR will be made upon the completion of the work and acceptance by the CITY. E. Payment for "Extra Work" performed under Section XI of this Contract shall be as agreed to by the parties in writing. VI. MAXIMUM COMPENSATION Unless otherwise agreed to in writing by both parties, the CONTRACTOR'S total compensation and reimbursement under this Contract, including labor, direct non-salary reimbursable costs and outside services, shall not exceed the maximum sum of $19,277.40, which includes the applicable Washington State sales tax for the City of Port Angeles (8.3%). City of Port Angeles - April 2005 Page 2 of 7 VII. EMPLOYMENT Employees of the CONTRACTOR, while engaged in the performance of any work or services under this Contract, shall be considered employees of the CONTRACTOR only and not of the CITY, and claims that may arise under the Workman's Compensation Act on behalf of said employees while so engaged, and any and all claims made by a third party as a consequence of any negligent act or omission on the part of the CONTRACTOR'S employees while so engaged, on any of the work or services provided to be rendered herein, shall be the sole obligation and responsibility of the CONTRACTOR. In performing this Contract, the CONTRACTOR shall not employ or contract with any CITY employee without the City's written consent. VIII. NONDISCRIMINATION The CONTRACTOR shall conduct its business in a manner which assures fair, equal and nondiscriminatory treatment of all persons, without respect to race, creed, color, sex, Vietnam era veteran status, disabled veteran condition, physical or mental handicap, or national origin, and, in particular: A. The CONTRACTOR will maintain open hiring and employment practices and will welcome applications for employment in all positions from qualified individuals who are members of the above-stated minorities. B. The CONTRACTOR will comply strictly with all requirements of applicable federal, state or local laws or regulations issued pursuant thereto, relating to the establishment of nondiscriminatory requirements in hiring and employment practices and assuring the service of all patrons and customers without discrimination with respect to the above- stated minority status. IX. SUBCONTRACTS A. Except for electrical work, the CONTRACTOR shall not sublet or assign any of the work covered by this Contract without the written consent of the CITY. B. In all solicitation either by competitive bidding or negotiation made by the CONTRACTOR for work to be performed pursuant to a subcontract, including procurement of materials and equipment, each potential subcontractor or supplier shall be notified by the CONTRACTOR of CONTRACTOR's obligations under this Contract, including the nondiscrimination requirements. X. CHANGES IN WORK Other than changes directed by the CITY as set forth in Section I above, either party may request changes in the scope of work. Such changes shall not become part of this Contract unless and until mutually agreed upon and incorporated herein by written amendments to this Contract executed by both parties. City of Port Angeles - Apnl 2005 Page 3 of 7 XI. EXTRA WORK The CITY may desire to have the CONTRACTOR perform work or render services in connection with this project, in addition to the Scope of Work set forth in Exhibit A and minor revisions to satisfactorily completed work. Such work shall be considered as "Extra Work" and shall be addressed in a written supplement to this Contract. The CITY shall not be responsible for paying for such extra work unless and until the written supplement is executed by both parties. XII. TERMINATION OF CONTRACT A. The CITY may terminate this Contract at any time upon not less than ten (10) days written notice to the CONTRACTOR. Written notice will be by certified mail sent to the CONTRACTOR's designated representative at the address provided by the CONTRACTOR. Mutually agreed-upon compensation for work already completed and reasonable costs incurred shall be made to the CONTRACTOR by the CITY. B. In the event this Contract is terminated prior to the completion of the work, a final payment shall be made to the CONTRACTOR, which, when added to any payments previously made, shall compensate the CONTRACTOR for the amount of work completed. C. In the event this Contract is terminated prior to completion of the work, documents that are the property of the CITY pursuant to Section II above, shall be delivered to and received by the CITY prior to transmittal of final payment to the CONTRACTOR. XIII. INDEMNIFICATION/HOLD HARMLESS 1. The CONTRACTOR shall defend, indemnify, and hold harmless the City, its officers, officials, employees, and volunteers against and from any and all claims, injuries, damages, losses, or lawsuits, including attorney fees, arising out of or in connection with the performance of this Contract, except for injuries and damages caused by the sole negligence of the CITY. It is further provided that no liability shall attach to the CITY by reason of entering into this Contract, except as expressly provided herein. 2. Should a court of competent jurisdiction determine that this Contract is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the CONTRACTOR and the CITY, its officers, officials, employees, and volunteers, the CONTRACTOR's liability hereunder shall be only to the extent of the CONTRACTOR's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the CONTRACTOR's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Contract. XIV. INSURANCE The CONTRACTOR shall procure and maintain for the duration of the Contract, insurance against claims for injuries to persons or damage to property which may arise from or in City of Port Angeles - Apnl 2005 Page 4 of 7 connection with the performance of the work hereunder by the CONTRACTOR, their agents, representatives, employees or subcontractors. Failure by the CONTRACTOR to maintain the insurance as required shall constitute a material breach of contract upon which the CITY may, after giving five working days notice to the CONTRACTOR to correct the breach, immediately terminate the Contract or at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the CITY on demand, or at the sole discretion of the CITY, off set against funds due the CONTRACTOR from the CITY. 1. Minimum Scope of Insurance The CONTRACTOR shall obtain insurance of the types described below: 1. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured Contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 11 85. There shall be no endorsement or modification of the Commercial General Liability insurance for liability arising from explosion, collapse or underground property damage. The CITY shall be named as an insured under the S=s Commercial General Liability insurance policy with respect to the work performed for the CITY using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 2. Minimum Amounts of Insurance The CONTRACTOR shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products-completed operations aggregate limit. 3. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance. City of Port Angeles - April 2005 Page 5 of 7 1. The CONTRACTOR's insurance coverage shall be primary insurance as respect the CITY. Any Insurance, self-insurance, or insurance pool coverage maintained by the CITY shall be excess of the CONTRACTOR's insurance and shall not contribute with it. 2. The CONTRACTOR's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the CITY. 4. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. 5. Verification of Coverage The CONTRACTOR shall furnish the CITY with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the CONTRACTOR before commencement of the work. 6. Subcontractors The CONTRACTOR shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the CONTRACTOR. xv. APPLICABLE LAW This Contract shall be construed and interpreted in accordance with the laws of the State of Washington, and in the event of dispute the venue of any litigation brought hereunder shall be Clallam County. XVI. SUPPLEMENTAL TERMS The supplemental terms set forth in the attached Exhibit C are hereby incorporated in and made part of this Contract, except that in case of conflict with any Section of this Contract, that Section shall have precedence over the conflicting part of Exhibit C. XVII. SOFTWARE AND LICENSING AGREEMENT All software is provided by the CONTRACTOR under a non-transferable, on-exclusive license for the CITY's use, as set forth in the attached Exhibit D. A designated representative of the CITY will sign the End-User License Agreement upon accepting the CONTRACTOR'S software documentation and using the software provided. All software and documentation are copyrighted by the CONTRACTOR and no copies of the software or documentation may be made except for CITY use as a "backup" copy, or as required or allowed by law. City of Port Angeles - Apnl 2005 Page 6 of 7 XVIII. EXHIBITS AND SIGNATURES This Contract, including its exhibits, constitutes the entire Contract, supersedes all prior written or oral understandings, and may only be changed by a written amendment executed by both parties. The following exhibits are hereby made a part of this Contract: Exhibit A - Scope of Work Exhibit 8 - S & B's General Terms and Conditions Exhibit C - Software and Licensing Agreement . In WITNESS THEREOF, the parties hereto have executed this Contract as of the day and year first written above. TITLE: ATTEST: ..6nQ>Q ..,U~i\ BECKYU 0, ITYC~ RK - , . N \PROJECTS\04-22 SCADA Upgrades\S&Bcontract200S wpd Page 7 of 7 CIty of Port Angeles - April 2005 EXHIBIT A SCOPE OF WORK (two pages) 1. Trickling Filter Bypass Control: S & B to provide engineering services and panel modifications to provide automatic control of the Trickling Filter Bypass valve. The Bypass valve will open/close based upon the Solids Contact Basin flow being greater than 10.6 MGD. S & B will make PLC additions to modulate the Bypass valve open/close to maintain 10.6 MGD through the Trickling Filters. The following tasks will be performed by S & B: Provide PLC, GUI, and DMS additions for the Bypass flow meters and valve. Provide Panel 2200 modifications for the flow rate, flow total and valve control. Provide updated schematic drawings and block diagrams. 2. Trash Rack Controls: S & B to provide engineering services and panel modifications to provide automatic control of the Trash Rack. The Trash rack will be called into operation based on differential level reaching an operator adjustable setting or on time period. The following tasks will be performed by S & B: Provide PLC, GUI, and DMS additions for the Headworks level and Trash Rack call. Provide Panel 2200 modifications for the Headworks level and Trash Rack call. Provide updated schematic drawings and block diagrams. Provide functional acceptance testing and startup. 3. Plant Drain Wetwell Control: S & B to provide engineering services and panel modifications to provide monitoring and alarm for the Drain wet well levels. The following tasks will be performed by S & B: Provide PLC, GUI, and DMS additions for the Drain wetwelllevel. Provide Panel 2200 modifications for the Drain wetwelllevel. Provide updated schematic drawings and block diagrams. Provide functional acceptance testing and startup. 4. Trickling Filter Recirculation Control: S & B to provide engineering services and panel modifications to provide automatic control of the trickling Filter Recirculation valve. The recirculation valve will be opened based upon the Trickling Filter Pump Wetwell Levels (operator adjustable). S & B will make PLC additions to open the recirculation valve when the wetwelllevel is between operator adjustable settings. The following tasks will be performed by S & B: Provide PLC, GUI, and DMS additions for the Recirculation flow meter and valve. Provide Panel 2200 modifications for the flow rate, flow total and valve control. Provide updated schematic drawings and block diagrams. Provide functional acceptance testing and startup. 5. WAS Actuator Valve Control: S & B to provide engineering services and panel modifications to provide automatic control of the WAS valve. The existing valve has been replaced with a motor operated valve. The interface to the valve requires additional conductors. The control logic will remain the same. The following tasks will be performed by S & B: Provide Panel 2200 modifications for the new valve control. ' Provide updated schematic drawings and block diagrams. Provide functional acceptance testing and startup. 6. CONTRACTOR will design, furnish and install the following: (1) upgrade the existing WinCC V5.0 to WinCC V6.0. The new program will have adequate storage and the ability to offload data onto DVD media. (2) supply software upgrades and convert our existing application software. This includes the version 6.0 upgrade for the server, and two for the client computers. (3) Includes on-site startup, testing and review of features with operators. EXHIBIT B S & B's GENERAL TERMS AND CONDITIONS (two pages) . - . J 13200 SE 30th Street, Bellevue, WA 98005 (425) 644-1700 FAX (425) 746-9312 GENERAL TERMS AND CONDITIONS - INSTRUMENT SYSTEMS " 1. SCOPE These tenDs and conditions apply to the sale of all instrument systems assembled by S&B Inc. (Sel1er) and any inconsistent lenns and conditions in Purchaser's purchase order are not binding on Sel1er, unless acc:epted, or these tenDS and comhtions are modified by an authorized S&B Ine. representative. 2. ACCEPTANCE '. Pun:base orders received from Purcbascr do Dol bind Seller unless accepted by an Officer of Seller, either by acknowledgment, writIeD acc:eplIIDCe, promise to ship, or shipment of the instrument systems COIDIIIIIDicated to Purchaser. Acceptance is expressly made conditional on Purchaser's assent to Seller's Material Terms 8Dd Conditions II wbiclI are additional to or differeDt from Pun:haser's tenDS, unless Sel1er agrees othawise in writing. 3. PRlCEANDPAYMENT Unless otherwise specified, quoted selling prices are FOB Seller's factory or its supplier's shipping point, with ti'eighl al10wed to destinatioo 8Dd are subjec:t to change if DOt aa:epted within 30 days from the quotation date. The quotation may be withdrawn at any time prior to acceptance or extended beyond 30 days. Invoices are due 8Dd payable NET 30 days, UDless otheIwise specified, at the compBIIY offices al13200 S.E. 30th Street, Bellevue, W A. 98005. Late paymllIIt of invoices are subjec:t to interest. Invoices shall be reodcRd acc:ording to the foDowing schedule. Benchmark Upon notice from pun:haser that all drawings have been approved for fabricatiOlL Upon notice from Seller that the instnnnent system is ready for factory tests. Upon notice from Sel1el" that the instrument system has been shipped or thaI factmy tests are complete and equipment is being held for convenience of customer. Upon notice of aa:eptance from Purchaser or 180 days from notice of shipment, wbicbever occurs first. ". of Total Price 20% Additional SO% Additional2S% Final S% IfPurcbascr defaults in any payment when due, Seller may al its option, and in addition to its remedies UDder the U.C.C. without incurring any liability thereof to Purchaser or Purchaser's customers, declare all payments for work completed immediately due and payable with inaximum legal interest then:on from due date 8Dd stop all further work and shipments UDtil all past due payments have been made and/or requin: thaI any further deliveries be paid for prior to shipmenL 4. ITEMS INCLUDED The price quoted mcludes only the iDslrument system speCified, 8Dd does not include 8ClIIaI' installation,' accessory or associated materials such as wiring, piping, etc.. DOt specifically included. Equipment prices quoted include installation information 8Dd stan-up assiatance provided by the Seller's field engineer or tecImician. Such services will be provided in a mutually agreeable IIllIDIICI" and time. Seller will provide, upon request, at Seller's established current rates, an expel ienc:ed Projec:t Engineer or Service Technician to provide on-site superiDteDdeoc:e of the equipment iDstaIlabOlL Responsibility for proper operation of equipment, if not installed by Seller or installed in acc:ordance with Sel1er's instructions, rests entirely with Purchaser. " ' 5. TAXES Any federal, state or local sales, or use or other taxes applicable to this transaction are not included in the price quoted, and unless a valid certificate of exemption is provided, any such tax sha1I be added to the price 8Dd is for the Pun:haser's accounL , . 6. SIDPMENTS AND DELIVERY Any shipment or delivery dates n:cited ben:in represent Seller's best estimate. No liability, direct or indirect, is assumed by Seller for failure to ship or deliver on suc:b dates. In any event, delivery dates are based upon the effective date of the contract and prompt receipt by Seller or all nec:essary infonnation and instructions ftom Pun:baser, including approved submittal drawings. Seller shall have 1be right to make partial shipments, and invoices covering the same shall be due 8Dd payable by Pun:baser in acoordamc:e with the payment terms hereof. In the event that the instruml:Dt system specified ben:in is to be shipped outside the United States, Purchaser shall obtain all uecessary import licenses 8Dd permits required to clear the shipment for enll)' into the foreign COUDII)' and pay all duties, tolls and imports. If Purchaser requests postponement of shipments or causes a delay in shipment, the entin: purchase price shall be due and payable upon DOtice from Seller that the iD5lrUment system is ready for shipment, 8Dd thereafter any storage, or other charge Seller iDcun, shall be for Purchaser's account, including interest on any W1paid balance at the maximum legal rate. All claims for damage, delay or storage for FOB Seller's plant shall be made directly against the carrier of the Purchaser. When shipments are FOB destillBtion, Purchaser shall inspec:t the inslJumeDl system shipped 8Dd notify Seller of any damage or shortage within 5 days of rec:eipL Failure to notify Seller shall constitute acceptance of Purchaser, n:lieving Seller of any liability for shipping damages or shortages. 7. RISK OF WSS AND SECURITY INTEREST Unless shipments of msttument systems are made FOB destination, all risk of loss or damage shall pass to the Purchaser upon delivery to a carrier for shipment. Purchaser shall protect and mamtain Seller's title, including adequate insurance for Seller's benefit, 8Dd right of repossession to the iDSlIUment system specified ben:iD or in any change order W1tilthe full purchase price has been paid In full and will not encumber or permil others to encumber such systems by any security iDStruments. Purchaser acknowledges that as secunty for payment of the purchase price, Seller will retain and Purchaser has granted, a security interest in all instrument systems sold to Purchaser. Seller shall have all of its rights and n:medies as a Seller and a secured party UDder the U.C.C. or other appropriate law. No waiver by Seller or any default shall constitute a waIver of any subsequent or further default. Seller may retain as liquidated damages any partial paymentsmade and may peaceably repossess the equipment from the Purchaser's premises without prejudice to any further claims it may have. In the evenllegal aclion be brought to enforce the provisions of any order accepted by it, Seller shall be entitled to recover its court costs and reasonable attorney fees. ~." . . .- ". 8. WARRANTY Seller warrants that for a period of one year after test and acceptauce by the Purchaser, or 18 months from date of shipment, whichever occ:un tint, all products assembled by Seller shall be free from defects in material and workmanship. Seller will at its sole option either repay the purchase price, or repair or replace II alocalioo to be designated by it, any product defects which develop within such period UDder nonnal and proper use provided it receives prompt written DOlice of claimed Wlll'Bnty period. This warranty shall not apply 10 any products altered or repaiIed outside Seller's factory or with other than Seller's replac:emeot parts, unless such repair was authorized in writing by Seller, or 10 products or parts subject 10 misuse, abuse, neglect or ac:c:ident or damaged by improper installation or app1ic:ation. In no event shall Seller be liable for D011DBI wear and tear, nor for any incidental or consequential damages due to inoperability of its produc:ts. The foregoing are Seller's sole warranties and guarantees. lIDlI all express or implied warranties, including all implied wammties or merchantability and fitness for a partic:ular purpose, which exceed the above obligation, are hereby disclaimed by Seller. 9. CANCELLATION, SUSPENSION AND DELAYS After acceptance by Seller, Ibis contnlCl sba1l not be subject 10 c:anc:ellatioD, suspension or delay. Orders may be c:anc:elled only with Se1ler'a written consent lIDlI upon payment of reasonable c:anc:eDation charges, which sba1l include all costs inc:urred and work done pursuant to the contnlCl to date of c:anc:ellation, lIlI5peIISioo or a delay plus reasonable overhead and profiL Additiona\ly, all risks incident to and charges related to StOIage and/or reswnption of wmk, at SeDer's pllnt or eIaewbere, sba1I be for Purcbaser's sole 8CCOUIIt. 10. LIM1TATIONOFLlABll.JTY \ SeDer sba1l not be responsible or liable in any way for any failure 10 perform due 10 Ac:ts of God, fire or flood. serious explosions or acc:idenlS, foreign or United States embargoes, war or riots, serious shortages, UDavailability or significant price inc:reases in commodities, materials or c:omponenlS, labor disputes, intenUplion of transportation, loss of essential production services, acts of any U.s. or foreign governmental authority, or by any other event beyond the reasonable control of Seller or its subc:ontnlctoIs. Seller sba1l not be liable to Purchaser for any incidental or consequential damages for any reason whatsoever. 11. CHANGES AND BACKCHARGES Any changes in or any additions 10 the scope of work berein described or initiated by the Purchaser or resulting from any c:in:umstanc:es beyond Seller's control sba1I be for the ac:c:ount of and paid by the Purchaser. Written change orders shall initiate changes. and shall be considered as individual modifications and sba1I not delay payment to the SeDer for the original order. Seller wiD not approve or accept returns or bac:kcbarges for labor, materials or other costs incurred by Purchaser or others in modification or Illljustment, service or repair of Seller furnished materials unless such return or backcbarges are pursuant 10 Seller's warranty and haye been authorized in writing by an Oftic:er of Seller or by assigned purchase order or work requisition. 12. PROPRIETARY INFORMATION All infonnation furnished by SeDer is submitted solely for Purcbaser's consideration in connection with Ibis job and shall be not be used by Pun:baser nor disclosed 10 any third party without SelIer's written consenL 13. DRAWINGS AND DESIGN All drawings, descriptive matter, etc. submitted with this proposal are merely intended to give a general idea of the equipment described and a set of drawings may be supplied for approval after ac:c:eptanc:e. Seller reserves the right to change or modify the design and c:onstJUction of any equipment in order to incorporate improvements or 10 substitute material equal 10 or superior 10 that originally specified, and upon request, will assist with SUggesuoDS without liability for any resulting loss or damage to Purchaser. 14. SOFrWAREANDLlCENSEAGREEMENT All software is provided under a non-transferrable, nOD-exc:lusive license for its use. The purchaser, and if different, the end-user, shall be required to sign Seiler's End-User License Agreement upon Kc:epling SeDer's software documentation and using the software provided. All software and doc:mnentation ~ copyrighted by Seller and contain valuable trade secrets. No copies of this software or documentation may be made except as authorized under the terms of the license agreemmL The software and docwnentation are warranted against fimcuonal defects found during a period of one year after delivery. SeDer's sole obligation shall be 10 c:orrect any such defect in a manner chosen by Seller in its sole discretion. Seller shall have no liability for any lost profits or direct, indirect, incidental, consequential, or other damages ariaing from use of the software and doc:wnentation or any associated hardware. 15. NON-ASSIGNMENT Purchaser shall not assign this contract, nor any interest herein or rights herelDlder, without the written consent of Seller and any attempted assignment shall be voidable at Seller's sole option. . 16. ENTIRE AGREEMENT The contract expresses the entire agreement between the parties hereto and supersedes any previous conununications, representations or agreements, wbetber oral or written, and IS not subject 10 modificauon except by a writing signed by an authorized Officer of each party. 17. GOVERNlNGLAW The contract shall be interpreted and governed by the law of the State of Washington, inc:ludmg but not limited to any dIspute, controversy or claim arising out of the c:onttacL Form 977 Rev. Aug. 1992 \FORMS\FORM977 .doc: EXHIBIT C SOFTWARE AND LICENSING AGREEMENT , ~.. ~ l ,.~ . 13200 SE 30th Street, Bellevue, WA 98005 (425) 644-1700 FAX (425) 746-9312 S&B END USER LICENSE AGREEMENT ACCEPTING THIS DOCUMENTATION AND USING THE SOFTWARE PROVIDED CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS. S&B Inc. (S&B), the developer of this fully integrated Software Package, grants you a personal, non- transferable, non-exclusive license to use the Software and Documentation enclosed in this package, but only on the computers on which it is originally installed, or if a computer malfunctions, then temporarily installed on a back-up computer. The Software and Documentation are copyrighted by S&B and C~)Dtain valuable trade secrets of S&B. You may not make any copies of the Software or Documentation, except a necessary back-up copy; you may not transfer the Software or Documentation or otherwise make it available to anyone else; and you may not disassemble, decompile, update, revise or enhance the Software. The Software and Documentation are warranted against functional defects found during a period of one year after delivery. S&B's sole obligation shall be to correct any such defect in a manner so chosen by S&B at its sole discretion. The media, on which the Software is recorded, shall be replaced without charge by S&B Inc., if the media should prove defective within one year after delivery. This warranty (1) does not extend to defects arising from changes made to Software and the hardware with which it is intended to operate, (2) will be rendered void by any evidence of tampering with the Software, and (3) does not extend to any hardware components, subsystems peripherals, or other non-S&B developed software, whether or not supplied by S&B. Except as provided above, the Software and Documentation are licensed to you (and any hardware delivered by S&B is delivered to you) "AS IS" with the original manufacturer's warranty. S&B DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. S&B shall have no liability for any lost profits or direct, indirect, incidental, consequential, or other damages arising from the use of the Software or Documentation or any associated hardware. ISSUED TO: CITY OF PORT ANGELES, W A WARRANTY REGISTRATION NO. EFFECTIVE: Receipt of Documentation Acknowledged By: Acknowledgement Date: H:\FORMS\S&BEndUserLic.doc