HomeMy WebLinkAbout4.446 Original Contract
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CONTRACT
BETWEEN THE
THE CITY OF PORT ANGELES
AND
S & B INC.
FOR WATER UTILITY SCADA SYSTEM UPGRADES
PROJECT 03-16
THIS CONTRACT is made and entered into this '1~ day of ~ ~ ~o A_ ,
2003, by and between THE CITY OF PORT ANGELES, a non-charter c de 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 Water 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 Water 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 Exhibit 8 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.
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City of Port Angeles - November 2003
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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 o~ 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.
B. 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 $14,030.00,
not including applicable Washington State sales tax for the City of Port Angeles (8.2%).
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City of Port Angeles - November 2003
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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:
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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 - November 2003
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XI. EXTRA WORK
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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 I
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.
8. 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
A. 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.
B. 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
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City of Port Angeles - November 2003
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.
A. 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. .
B. 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.
C. 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 - November 2003
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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.
D. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII.
E. 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.
F. 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 - November 2003
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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 B - Specifications Sheets for GUI and Duty Notebook
Exhibit C - S & B's General Terms and Conditions
Exhibit D - Software and Licensing Agreem~nt
In WITNESS THEREOF, the parties hereto have executed this Contract as of the day and
year first written above.
CITY OF PORT ANGELES
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~AYOR
CONTRACTOR
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TITLE: VICe PXES/C:i5NJ
APPROVED AS TO FORM:
ATTESTt
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BECKY UP N, Y CLER
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N.\PROJECT S\03-16 SCADA Upgrades\S&Bcontract2003.wpd
City of Port Angeles - November 2003
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EXHIBIT A
SCOPE OF WORK
1. CONTRACTOR will design, furnish and install the following: (1) upgrade the existing
WinCC V4.0 to WinCC V6.0, and (2) supply a new GUI 2003 machine. The new computer
will have adequate storage and the ability to offload data onto DVD media. See attached
specification sheet in Exhibit B for additional details on system specifications and'supplied
software. The cost to complete this item of work is $9,420, not including tax.
2. CONTRACTOR will furnish and install one Duty Notebook Computer to replace the
existing one. . The new computer will be a Dell Latitude Series notebook computer with a
licensed copy of Windows 2000, Microsoft Office, TISOFT, DirectSOFT and pcAnywhere
loaded on it. See the attached specification sheet in Exhibit B for additional information.
The cost to complete this item of work is $2,860, not including tax.
3. CONTRACTOR will design, furnish and install hardware and PLC application software to
upgrade the existing 4-channel headquarters dialer to an 8-channel dialer. The equipment
includes an 8-point card from RACO and an additional 8-point relay output module with
wire harness for the additional points. The cost to complete this item of work is $1,050,
not including tax.
4. CONTRACTOR to provide one day of start-up and training on site. The cost to complete
this item of work is $700, not including tax. If an additional day is required to complete the
work, up to $700 will be charged for that day.
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EXHIBIT B
SPECIFICATIONS SHEETS FOR GUI AND DUTY NOTEBOOK
(two pages)
OCT-23-2003 10:27 FROM S&B INC.
TO
913604174542 P.03
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'-:J'"raUlliC user J.nlerl8ce l bUI, peclIlcanon
Graphic User Interface (GUI)
P~ntium IV 2.6 GHz or better, PCI bus
r'^eoMIo-"........._ ..._...1...:1"'....
~"""I''''1.4".,& &...~.UU~.3.
512 ME DDR .RAM (miiiimwn)
80Gb Bam Dlsk
4X M:ax DVD+RW/+R Drive and 16X D\i'D
1.441'..11; 3.5" Fluppy Drive
Super VGA, 64MB Graphics Adapter
2 RS-232 Serial Communications Pori
Parallel Printer Port
10/100 Base T Eihcmei Network Card
56k baud, Y.9O Modem
PS2 Mouse Port and Mouse
PS2 Standard Keyboard
Windows 2000 Professional SPJ
ManufacturersIPart Numbers:
S&B WinCC@ GUI.03
MONITOR:
18" Flat Panel Di$play
0.285mm dot pitcl4 Hori7.ontah 31-80kH7,
Vertical: 55-85kHz
1280x1024ni
ManufacturerslPart Numbers:
Den UltraSharpTK 1800 FP
GUl SOFTWARE:
(Required for each System)
Kit Includes:
Siemens WinCC@ v6.0 RunTime
1024 Tag Software
pcAnywbere™ dO (2-host, 2-client)
MicroSoft Office Basic 2003
S&B Applications Software
Complete Doc:umentation
Mouse Pad
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PLC INIERFACE: Serial Communication RS232
S&B GUf machines represent current computer technology, specifications of equipment may change
without notice to equipment with improved speed, capacity <md/or features. All computer equipment
includes a one-year pOJt$ and labor service warranty_
TOTRL P.03
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913604174542 P.02
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PROCESSIITEM;
SCADA Duty Notebook Computer
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lJUtv ~OleDOOK \..,OmpUler ~pecllu;auun
PROCESSOR;
Pentium III 1.0 Glh or better, PCI bus
Comjiuur In~ludes;
128 MB DDR RAM (minimum)
20Gb Pgrd IYJSk
24X CD ROM
1.44 Mb 3.5" :Fluppy DriVl:
1 RS-232 Serial CommuDkations Port
Parallel Printer Port
1 USH Port
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.lV/.lUV ~ .I ~W-=CIl-=L .I."'t:LWUCa. \.-anI
56k b8ud, V.92 Modem (Integrated)
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vue .1 ype .1 ur .1 ype U UlIU "IU,"
DuaiPoint Pointing Dnice (Touch Pad and
Track Stick)
Windows 2000 Professional SP3
ManufactnrerslPart Numbers:
S&B Duty Notebook-03
I MONITOR:
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IPLC INTERFACE:
12.1" XGA color TIT Active Matrix Display
1024x768 XGA M.Qx R~ution
3 Ye-ar Limjt~ W~l'r'!Ll!ty Plu~ 3 Y~r NBD ~-Site
Seni<< and Complete Care
3 Year C..Qld TeoCh"'''AJ Support
(R..nnin>d tnr ....,.h ~vct..ftI\
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Kit Includes;
pc..t\.n.ywhere™ Ver 10 (Pw.!rchased in G!JI-03
Upgrade)
Micr~S~ft Office Sma!! Bu&..n.ess
TISOFTTM (City's Copy)
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Serial Cmnmumcation RS232
S&B Duty Notebook computers represenr CU"enI compUler rechnology, specificarions of equipment may
change without notice to equipment with impruved speed, capaciry and/or jeatures. All computer
equipment includes a one-year parts and labor service warranry(unless stared otherwise).
TOTAL P.02
EXHIBIT C
S & B's GENERAL TERMS AND CONDITIONS
(two pages)
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S&Binc.
13200 SE 30th Street, Bellevue, W A 98005 (425) 644-1700 FAX (425) 746-9312
GENERAL TERMS AND CONDITIONS - INSTRUMENT SYSTEMS
1. SCOPE
These terms and condlnons apply to the sale of all mstrument systems assembled by S&B Inc. (Seller) and any InConsIstent terms and condItIOnS m Purchaser's purchase order
are not bindIng on Seller, tmless accepted, or these terms and condlnons are modified by an authonzed S&B Inc. representanve.
2. ACCEPTANCE
Purchase orders receIved from Purchaser do not bmd Seller unless accepted by an Officer of Seller, eIther by acknowledgment, wntten acceptance, prormse to shtp, or
shtpment of the mstrument systems commurncated to Purchaser. Acceptance IS expressly made condInonal on Purchaser's assent to Seller's Matena! Terms and CondItions
whtch are additional to or dIfferent from Purchaser's terms, unless Seller agrees otherwtse m wnnng
3. PRlCEANDPAYMENT
Unless othelWlse speCIfied, quoted selhng pnces are FOB Seller's factory or Its supplier's shlppmg pomt, WIth freIght allowed to destmal10n and are subject to change If not
accepted wlthtn 30 days from the quotanon date The quotanon may be withdrawn at any time pnor to acceptance or extended beyond 30 days. InVOIces are due and payable
NET 30 days, tmless othelWlse speCIfied, at the company offices at 13200 S.E 30th Street, Bellevue, W A. 98005. Late payment of mVOIces are subject to mterest InvOIces
shall be rendered accordmg to the followmg schedule
Benchmark
Upon nonce from purchaser that all draWIngs have been approved for fabncatIon
Upon nonce from Seller that the mstrument system IS ready for factory tests
Upon notIce from Seller that the mstrument system has been ShIpped or that factory tests are complete
and eqUIpment IS bemg held for convemence of customer
Upon notIce of acceptance from Purchaser or 180 days from notIce of shIpment, whIchever occurs first.
% of Total Price
20%
AddInonal 50%
Addinonal 25%
Fmal 5%
If Purchaser defaults m any payment when due, Seller may at Its opnon, and m addlnon to Its remedIes tmder the U.C C WIthout mcurring any hablhty thereof to Purchaser or
Purchaser's customers, declare all payments for work completed ImmedIately due and payable WIth maxImum legal mterest thereon from due date and stop all further work and
shIpments tmtIl all past due payments have been made and/or reqwre that any further dehvenes be paId for prior to shtpment
4. ITEMS INCLUDED
The pnce quoted mcludes only the Instrument system speCified, and does not mclude acl11a1 Installanon, accessory or' assocIated matenals such as wmng, plpmg, etc., not
specIfically mcluded. EqUIpment pnces quoted mclude InstallatIOn mformatIon and start-up assIstance proVIded by the Seller's field engineer or techmclan. Such serVIces WIll
be provided m a mUl11ally agreeable manner and tIme. Seller WIll proVIde, upon request, at Seller's estabhshed current rates, an expenenced Project Engineer or SerVIce
TechniCIan to provide on-sIte supenntendence of the eqUIpment mstallanon Responslblhty for proper operanon of eqwpment, If not Installed by Seller or mstalled m
accordance WIth Seller's mstructions, rests entirely WIth Purchaser
S. TAXES
Any federal, state or local sales, or use or other taxes apphcable to thIS transacl10n are not mcluded m the pnce quoted, and unless a vahd certIficate of exemptIon is prOVIded,
any such tax shall be added to the pnce and IS for the Purchaser's accotmt
6. SmPMENTS AND DELIVERY
Any shipment or dehvery dates reCIted herem represent Seller's best estImate No hablhty, dIrect or mdlrect, IS assumed by Seller for faIlure to ShIP or dehver on such dates
In any event, dehvery dates are based upon the effective date of the contract and prompt receIpt by Seller or all necessary mformatlOn and Instrucnons from Purchaser,
mcludIng approved submittal drawmgs. Seller shall have the nght to make partial shIpments, and mVOIces covering the same shall be due and payable by Purchaser m
accordance WIth the payment terms hereof
In the event that the mstrument system speCIfied herem IS to be ShIpped outsIde the Umted States, Purchaser shall obtaIn all necessary Import hcenses and permIts
reqUIred to clear the shIpment for entry mto the foreIgn country and pay all dunes, tolls and unports
If Purchaser requests postponement of shIpments or causes a delay m shIpment, the ennre purchase pnce shall be due and payable upon nonce from Seller that the
mstrument system IS ready for shIpment, and thereafter any storage, or other charge Seller mcurs, shall be for Purchaser's account, mcludmg mterest on any tmpald balance at
the maxImum legal rate. All claImS for damage, delay or storage for FOB Seller's plant shall be made dIrectly agamst the carner of the Purchaser When shIpments are FOB
destInatIOn" Purchaser shall Inspect the Instrument system shIpped and nonfy Seller of any damage or shortage wlthm 5 days of receIpt. FaIlure to notIfy Seller shall constItute
acceptance of Purchaser, reheVIng Seller of any hablhty for shlppmg damages or shortages
7. RlSK OF LOSS AND SECURITY INTEREST
Unless shtpments of mstrument systems are made FOB destmatlOn, all nsk of loss or damage shall pass to the Purchaser upon dehvery to a carner for shIpment Purchaser
shall protect and mamtaIn Seller's title, mcludmg adequate Insurance for Seller's benefit, and nght of repossessIon to the Instrument system speCIfied hereIn or m any change
order untIl the full purchase price has been paId In full and WIll not encumber or permIt others to encumber such systems by any secunty mstruments
Purchaser acknowledges that as secunty for payment of the purchase pnce, Seller WIll retaIn and Purchaser has granted, a secunty mterest In all mstrument systems
sold to Purchaser Seller shall have all of Its nghts and remedIes as a Seller and a secured party tmder the U C C or other appropnate law No waIver by Seller or any default
shall consntute a waIver of any subsequent or further default Seller may retam as hqUldated damages any part1ll1 paymentsmade and may peaceably repossess the eqUIpment
from the Purchaser's prermses WIthout prejudIce to any further claims 11 may have In the event legal actIOn be brought to enforce the prOVISIons of any order accepted by It,
Seller shall be enntled to recover Its court costs and reasonable attorney fees.
8. WARRANTY
Seller warrants that for a penod of one year after test and acceptance by the Purchaser, or 18 months from date of shIpment, wlnchever occurs first, all products assembled by
Seller shall be free from defects m matenal and workmanshIp Seller WIll at Its sole optIon e1ther repay the purchase pnce, or repaIr or replace at a locatIon to be desIgnated by
1t, any product defects whIch develop Wltlnn such period under nonnal and proper use provided 1t receIves prompt wntten notIce of claimed warranty perlod. 11us warranty
shall not apply to any products altered or repaired outsIde Seller's factory or WIth other than Seller's replacement parts, unless such repair was authonzed m wnting by Seller,
or to products or parts subject to nususe, abuse, neglect or acCIdent or damaged by unproper mstallatIon or applIcatIon. In no event shall Seller be lIable for nonnal wear and
tear, nor for any mcidental or consequentIal damages due to moperab1l1ty of its products. The foregomg are Seller's sole warranties and guarantees, and all express or unplied
warrantIes, mcludmg a1lunplIed warrantIes or merchantabIlIty and fitness for a partIcular pwpose, which exceed the above oblIgatIon, are hereby dlsclaimed by Seller.
9. CANCELLATION, SUSPENSION AND DELAYS
After acceptance by Seller, thIS contract shall not be subject to cancellal1on, suspension or delay. Orders may be cancelled only WIth Seller's wntten consent and upon
payment of reasonable cancellation charges, whIch shall mclude all costs mcurred and work done pursuant to the contract to date of cancellatIon, suspensIOn or a delay plus
reasonable overhead and profit AddltIonally, all nsks incident to and charges related to storage and/or resumptIon of work, at Seller's plant or elsewhere, shall be for
Purchaser's sole account
10. LIMITATIONOFLIABILITY
Seller shall not be responSIble or lIable m any way for any faIlure to perform due to Acts of God, fire or flood, senous explOSIOns or acCIdents, foreIgn or Umted States
embargoes, war or nots, senous shortages, unavaIlabIlIty or SIgnIficant pnce mcreases m COmmOd111eS, matenals or components, labor dlsputes, mterruption of transportallon,
loss of essenl1al productIon ServIces, acts of any U.S. or fore1gn governmental authonty, or by any other event beyond the reasonable control of Seller or Its subcontractors.
Seller shall not be lIable to Purchaser for any mC1dental or consequential damages for any reason whatsoever.
II. CHANGES AND BACKCHARGES
Any changes m or any add1110ns to the scope of work herem descnbed or 1mtIated by the Purchaser or resulllng from any CIrCumstances beyond Seller's control shall be for the
account of and paId by the Purchaser Wntten change orders shalllmtIate changes, and shall be cons1dered as mdlVldual modlfical1ons and shall not delay payment to the
Seller for the origmal order.
Seller WIll not approve or accept returns or backcharges for labor, matenals or other costs incurred by Purchaser or others in modlficallon or adJuslnlent, servIce or repaIr of
Seller furnIshed matenals unless such return or backcharges are pursuant to Seller's warranty and have been authorized m wntmg by an Officer of Seller or by assigned
purchase order or work reqUIsItIOn
12. PROPRIETARY INFORMATION
All mfonnal1on furn1shed by Seller 1S subnutted solely for Purchaser's cons1deral1on m connectIon WIth thIS Job and shall be not be used by Purchaser nor dlsclosed to any
thud party WIthout Seller's wntten consent
13. DRAWINGS AND DESIGN
All draWIngs, descnptlVe matter, etc. subnutted WIth th1S proposal are merely mtended to gIve a general Idea of the equIpment descnbed and a set of drawmgs may be supplIed
for approval after acceptance Seller reserves the right to change or modIfy the deSIgn and construcl1on of any eqUIpment m order to incorporate Improvements or to Subslltute
matenal equal to or supenor to that ongmally speCIfied, and upon request, wIll ass1St WIth suggestIons WIthOUt lIabilIty for any resull1ng loss or damage to Purchaser
14. SOFTWARE AND LICENSE AGREEMENT
All software IS prOVIded under a non-transferrable, non-excluslve lIcense for Its use The purchaser, and If dlfferent, the end-user, shall be reqUIred to SIgn Seller's End-User
LIcense Agreement upon accepllng Seller's software documentatIon and using the software proVlded. All software and documentation are copynghted by Seller and contam
valuable trade secrets. No copies of tins software or documentallon may be made except as authonzed under the terms of the lIcense agreement. The software and
documentalIon are warranted agamst funcl10nal defects found dunng a penod of one year after delIvery Seller's sole oblIgallon shall be to correct any such defect in a manner
chosen by Seller m Its sole dIscretIon Seller shall have no hablhty for any lost profits or dIrect, mdlrect, mCldental, consequentIal, or other damages arJsmg from use of the
software and documentalIon or any assOCIated hardware
15. NON-ASSIGNMENT
Purchaser shall not asSIgn thIS contract, nor any interest herem or nghts hereunder, WIthOUt the wntten consent of Seller and any attempted assignment shall be VOIdable at
Seller's sole opllon
16. ENTIRE AGREEMENT
The contract expresses the enlIre agreement between the pattIes hereto and supersedes any preVlOUS communicatIOns, representatIOns or agreements, whether oral or wntten,
and IS not subject to modlficallon except by a wnting SIgned by an authonzed Officer of each party.
17. GOVERNING LAW
The contract shall be IOterpreted and governed by the law of the State of Wash 109 ton, mcludlOg but not hmlted to any dIspute, controversy or claIm anslOg out ofthe contract
Form 977
Rev Aug 1992
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EXHIBIT D
SOFTWARE AND LICENSING AGREEMENT
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S & B inc. 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 contain 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 MERCHANTABILITY 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:
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