The URL can be used to link to this page

2014-204•'1 � • � � �� . � � � . � � � � � �' • � ' •'' �, �. . � ....� . . . � . � . . � � , � � , � � � � • ' � ' �'' � • . . . . * . . . ; . � �; � � . . �; . �� . .• • � � . � .' �' ' �;� . . . . . . • �' • � * � •,' ' : �� . 1 ''• � � �. • . .�� ,�;.� . � � �� . � � � • '� � '��:1 11! WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY OR.DAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the 66File" listed hereon, and on file in the office af the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 5526 Advanced Control Systems $480,000 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Depaxtment. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items speciiied in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5526 to the City Manager of the City of Denton, Texas, or his designee. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2414. �` __�.- _ ...� CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: � ... APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � � �„� � ,f�, � � �� : �s � •, �.��`` � � - � BY. �� _ �,� . � ..*;- .. � .m... �_.. m �� f CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND ADVANCED CONTROLLED SYSTEMS, LLC. FILE # 5526 THIS CONTRACT is made and entered into this �� r��y �� A.D., 2014, by and between Advanced Control Svstems, Inc, a corporation, whose s��c � ss is 7�� Northwoods Parkway, Norcross, GA 30071, hereinafter referred to as "Supplier,"' and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subseyuent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Supplier shall provide products in accordance with the Supplier's proposal in response thereto, a copy of which is attached hereto and incorporated herein for all purposes as Exhibit "D". The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A") (b) City of Denton Standard Terms and Conditions (Exhibit "B") (c) Form CIQ — Conflict of Interest Questionnaire (Exhibit "C"). (d) Supplier's Proposal. (Exhibit "D"); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." FILE 5526 Page 1 of 18 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY ,� BY: ... e. _ � � � , APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � ,� � JN� y t �r �'� :+eY''f�y+'➢ '� ++'� �' BY. _�� "' „ a � �`�.1,�' �.. ��' f`� �': - ' SUPPLIER �� i,.: .�.�~, �r� ,�' � BY. �'�r� ��`°�`��.r t�„� Ai.�T� �R��L� SIGNATURE ,� Date: .rvf .!'a � A7 j.y �Y� ' d Name; � s�� •�` tw� � r `�� v �� Title; �--�°� � ... �� ,.�� PHONE NUMBER �v�::�� .. ��`�� ..�� . FAX NUMBER � � � �<,� , � ��;;>;� . �,� � �-� � . _,�� , � � � �� BY: �.`� $ � :-�.��._ GEORGE �". C',��IF�k31:�.s�, �1"`C'� �� MANAGER '�" � � �� L�r��e: FILE 5526 Page 2 of 18 Exhibit A Special Terms and Conditions The Quantities indicated on Exhibit D are estimates based upon the best available information. The City reserves the right to increase or decrease the quantities to meet its actual needs without any adjustments in the bid price. Individual purchase orders will be issued on an as needed basis. Product Changes During Contract Term The supplier shall not change specifcations during the contract term without prior approval. Any deviation in the specifications or change in the product must be approved in advance by the City of Denton. Notice of a change shall be submitted in writing to dentonpurchasin�(c�citvofdenton.com, with the above fle number in the subject line, for review. Products found to have changed specifications without notifcation, and acceptance, will be returned at the supplier's expense. Products that have been installed will be replaced at the supplier's expense. Authorized Distributor The supplier is the sole source provider of the proposed products. Contract Terms The contract term will be three (3) years, effective from date of award or notice to proceed as determined by the City of Denton Purchasing Department. Pricing Pricing shall remain firm for the three (3) years from contract execution. An escalation fee of 5% will be applied for unit prices for deliveries requested beyond the base three years. Shippine Prices shall be F.O.B Destination, prepay and invoice at cost. The minimum shipping costs shall be $20. Additional shipping fees are per Exhibit D. Total Contract Amount The contract total shall not exceed $480,000. Pricing shall be per Exhibit D attached. Delivery Lead Time Product or services shall be delivered to the City per the days/weeks noted in Exhibit D after receipt of the order. FILE 5526 Page 3 of 18 Exhibit B City of Denton Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's solicitation are applicable to Contracts/Purchase Orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller herein after referred to as the Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the Supplier's Proposal response, Invoice or Statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the Contract/Purchase Order these written provisions will take precedence. By submitting an Offer in response to the Solicitation, the Supplier agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specifed in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a Solicitation to purchase Goods, and Sections 9, 10, 11 and 22 shall apply only to a Solicitation to purchase Services to be performed principally at the City's premises or on public rights-of-way. 1. SUPPLIER'S OBLIGATIONS. The Supplier shall fully and timely provide all deliverables described in the Solicitation and in the Supplier's Offer in strict accordance with the terms, covenants, and conditions of the Contract and all applicable Federal, State, and local laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. SUPPLIER TO PACKAGE DELIVERABLES: The Supplier will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Supplier's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box 1 of 4 boxes, and (d) the number of the container bearing the packing list. The Supplier shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Supplier is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Supplier's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non-conforming deliverables. If the City has the right to inspect the Supplier's, or the Supplier's Subcontractor's, facilities, or the deliverables at the Supplier's, or the Supplier's Subcontractor's, premises, the Supplier shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. FILE 5526 Page 4 of 18 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complying tender shall constitute a breach and the Supplier shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Supplier may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Supplier access to the sites where the Supplier is to perform the services as required in order for the Supplier to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Supplier acknowledges that it has satisfed itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Supplier's obligations under the contract. The Supplier hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. 10. WORKFORCE A. The Supplier shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract. B. The Supplier, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. C. If the City or the City's representative notifies the Supplier that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Supplier shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Supplier represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996. 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Supplier, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Supplier shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Supplier's obligations under this paragraph. Environmental Protection: The supplier shall be in compliance with all applicable standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seg.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. § 1251 et seg.). 12. INVOICES: A. The Supplier shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation FILE 5526 Page 5 of 18 charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Supplier's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Supplier's invoice. C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Supplier shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Supplier will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Supplier to such extent as may be necessary on account o£ i. delivery of defective or non-conforming deliverables by the Supplier; ii. third party claims, which are not covered by the insurance which the Supplier is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Supplier to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or suppliers, which is not covered by insurance reyuired to be provided by the Supplier; v. reasonable evidence that the Supplier's obligations will not be completed within the time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Supplier to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii, failure of the Supplier to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Supplier agrees that there shall be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Supplier. The City shall provide the Supplier written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per diem expenses in connection with the Contract shall be paid by the Supplier, unless otherwise stated in the contract terms. 15. FINAL PAYMENT AND CLOSE-OUT: FILE 5526 Page 6 of 18 A. If a DBE/MBE/WBE Program Plan is agreed to and the Supplier has identified Subcontractors, the Supplier is reyuired to submit a Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Supplier is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: i. a waiver of all claims by the City against the Supplier, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing a8er final inspection, (3) arising from failure of the Supplier to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Supplier's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii. a waiver of all claims by the Supplier against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Supplier for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall become the property of the City and shall be identified by the Supplier as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Supplier shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Supplier shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Supplier which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereo£ Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such dra8s or electronic fles are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Supplier identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Supplier shall comply with all requirements approved by the City. The Supplier shall not initially employ any Subcontractor except as provided in the Supplier's Plan. The Supplier shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Supplier is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Supplier by a Subcontractor shall be pursuant to a written contract between the Supplier and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: i, reyuire that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Supplier. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. reyuire Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Supplier in sufficient time to enable the Supplier to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specifed for the Supplier, with the City being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Supplier is required to indemnify the City. FILE 5526 Page 7 of 18 C. The Supplier shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Supplier is responsible for the Supplier's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Supplier shall pay each Subcontractor its appropriate share of payments made to the Supplier not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY-PRICE: A. The Supplier warrants the prices quoted in the Offer are no higher than the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. B. The Supplier certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Supplier, or otherwise recover, any amounts paid for items in excess of the Supplier's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Supplier warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Supplier shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. 21. WARRANTY — DELIVERABLES: The Supplier warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Supplier, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identifed as such. B. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand either repair the non-conforming deliverables, or replace the non-conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Supplier is unable or unwilling to repair or replace defective or non-conforming deliverables as required by the City, then in addition to any other available remedy, the City may reduce the quantity of deliverables it may be required to purchase under the Contract from the Supplier, and purchase conforming deliverables from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Supplier is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Supplier shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Supplier shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Supplier warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Supplier may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. FILE 5526 Page 8 of 18 B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Supplier shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be borne by the Supplier. The City shall endeavor to give the Supplier written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. C. If the Supplier is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Supplier, and purchase conforming services from other sources. In such event, the Supplier shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non-conforming deliverables, the City prefers to accept it, the City may do so. The Supplier shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non-conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Supplier. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract. 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Supplier is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notifcation, the Supplier will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Supplier shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. 26. DEFAULT: The Supplier shall be in default under the Contract if the Supplier (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Supplier's Offer, or in any report or deliverable required to be submitted by the Supplier to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Supplier, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Supplier, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Supplier's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Supplier, the City may remove the Supplier from the City's vendor list for three (3) years and any Offer submitted by the Supplier may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Supplier shall promptly cease all further work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Supplier, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAIUD: Fraudulent statements by the Supplier on any Offer or in any report or deliverable required to be submitted by the Supplier to the City shall be grounds for the termination of the Contract for cause by the City and FILE 5526 Page 9 of 18 may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Supplier if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Supplier shall negotiate an equitable adjustment for costs incurred by the Supplier in the Contract price and execute an amendment to the Contract. The Supplier must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Supplier from delaying the delivery as notified. B. Neither party shall be liable for any default or delay in the performance of its obligations under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Supplier, their respective agents, officers, employees and subcontractors; the offcers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Supplier, the Supplier's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non-conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. B. THE SUPPLIER SHALL DEFEND (AT THE OPTION OF THE CITY�9 IIYDEMNIFY9 AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS� EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF� INCIDENT TO� CONCERNING OR RESULTING FROM THE FAULT OF THE SUPPLIER, Ox'rxE SUPPLIER'S AGENTS� EMPLOYEES OR SUBCONTRACTORS� IN THE PERFORMANCE OF THE SUPPLIER'S OBLIGATIONS UNDER THE CONTRACT. NOTHIIVG HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE SUPPLIER (INCLUDING, BUT NOT LIMITED TO� THE R[GHT TO SEEK CONTRIBUTION� AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in the solicitation document. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements. i. The Supplier shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over periods, and during any warranty period. ii. The Supplier shall provide Certificates of Insurance with the coverage's and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Supplier must also forward a Certifcate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Supplier shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Supplier hereunder and shall not be construed to be a limitation of liability on the part of the Supplier. iv. The Supplier must submit certificates of insurance to the City for all subcontractors prior to the FILE 5526 Page 10 of 18 subcontractors commencing work on the project. v. The Supplier's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Supplier, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Supplier shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance reyuirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Supplier. xi. The Supplier shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. xii. The Supplier shall be responsible for premiums, deductibles and self-insured retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Supplier shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Supplier. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Supplier which arises under or concerns the Contract, or which could have a material adverse affect on the Supplier's ability to perform thereunder, the Supplier shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Supplier. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 76201. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Reyuested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, telefax, or other commercially accepted means. Notices to the Supplier shall be sent to the address specified in the Supplier's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901B Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. FILE 5526 Page 11 of 18 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Supplier to the City shall become property of the City upon receipt. Any portions of such material claimed by the Supplier to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Supplier represents and warrants to the City that: (i) the Supplier shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Supplier in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Supplier does not know of any valid basis for any such claims. The Supplier shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of the deliverables infringes the intellectual property rights of any third party; or (ii) the Supplier's breach of any of Supplier's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co-counsel on the City's behalf. Further, Supplier agrees that the City's specifications regarding the deliverables shall in no way diminish Supplier's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Supplier. 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Supplier may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"). Supplier acknowledges and agrees that the Confidential Information is the valuable properly of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Supplier (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Supplier promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Supplier agrees to use protective measures no less stringent than the Supplier uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Supplier agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Supplier agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Supplier agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Supplier for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made-for-hire, the Supplier hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City o fl all worldwide right, title, and interest in and to such deliverables. With respect to such work made-for-hire, the Supplier agrees to execute, acknowledge, and deliver and cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work- made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. FILE 5526 Page 12 of 18 C. Additional Assignments. The Supplier further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Supplier's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shall continue after the termination of this Contract with respect to such deliverables. In the event the City should not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Supplier agrees to treat the same as Confdential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Supplier shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. 41. NO CONTINGENT FEES: The Supplier warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Supplier for the purpose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Supplier, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Supplier, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Supplier or any agent or representative of the Supplier to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Supplier in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Supplier shall render the Contract voidable by the City. The Supplier shall complete and submit the City's Conflict of Interest Questionnaire (Attachment B). 44. INDEPENDENT SUPPLIER: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Supplier's services shall be those of an independent supplier. The Supplier agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income taac, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Supplier or any employee of the Supplier, and it is expressly understood that Supplier shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. 45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Supplier and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Supplier without the prior written consent of the City. Any attempted assignment or delegation by the Supplier shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it FILE 5526 Page 13 of 18 being the intention of the parties that there are no third party beneficiaries to the Contract. 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Supplier or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Supplier invoice, order or other document shall have any force or effect to change the terms, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner to be fair to both parties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC defnition shall control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision-making authority regarding the dispute. The purpose of this and any subseyuent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Supplier agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Supplier will share the mediator's fees equally and the parties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken FILE 5526 Page 14 of 18 provision. The provisions of this section shall not prevent this entire Contract from being void should a provision which is the essence of the Contract be determined to be void. 52. HOLIDAYS: The following holidays are observed by the City New Year's Day (observed) MLK Day Memorial Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Dav (observed) If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON-SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub-awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilitees Act (ADA) Compleance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable, in addition to the specific federally funded requirements. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Supplier, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (2) For components manufactured by the Supplier, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means- (1) An unmanufactured end product mined or produced in the United States; or FILE 5526 Page 15 of 18 (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. v. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. l0a - lOd) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Supplier shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this solicitation, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded supplier or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the supplier. 59. PREVAILING WAGE RATES: All suppliers will be required to comply with Provision 5159a of "Vernon's Annotated Civil Statutes" of the State of Texas with respect to the payment of prevailing wage rates and prohibiting discrimination in the employment practices. http://www.access.gpo.QOV/davisbacon/tx.htm l 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Supplier must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants. The Supplier shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Supplier shall demonstrate on-site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W-2's to common law employees. Supplier is responsible for both federal and State unemployment insurance coverage and standard Worker's Compensation insurance coverage. Supplier shall ensure compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Supplier or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Supplier shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Supplier's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The supplier shall comply with the applicable provisions of the Drug-Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug- free work environment; and the final rule, government-wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the supplier shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. SUPPLIER LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Supplier shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Supplier and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any FILE 5526 Page 16 of 18 performance pursuant to the Contract. The Supplier shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJEURE: The City of Denton, any Customer, and the Supplier shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the Supplier will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Supplier continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Supplier shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance. 65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Party's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY: The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Supplier shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called for in the Contract. The Supplier shall retain all such records for a period of four (4) years after the expiration of the Contract, or until the CPA or State Auditor's Offce is satisfed that all audit and litigation matters are resolved, whichever period is longer. The Supplier shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. FILE 5526 Page 17 of 18 EXHIBIT C _ - . — __ ._ CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ ' For vendor or other person doing business with local governmental entity _ -_ This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date person who has a business relationship as defined by Section 176.001(1-a) with a local governmental Received entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. _ . � tdar�� of person who has a trusin�ss r�l�tlrsns3�ip with local gr�v�rnm�nka[ �rr��ty. _ __ 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7`h business day after the date the c�riginally filed questionnaire becomes incomplete or inaccurate.) _ ._ . 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C& D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? Yes � No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes � No D. Describe each affiliation or business relationship. 4 w__.., v..— . �..e Signature of person doing business with the governmental Date �ntd# FILE 5526 Page 18 of 18 Exhibit D �.-� ' eFacec Advanced Control Systems 2755 Northwaods ParAwaY • Norcross, Geoig�a 3007I Tel: 170.446.BB5q • FaR: 770.A4B.0957 To: Denton Municipal Utilities 215 E McKinney Street Denton, TX 76201-4299 Attn: Brad Gibbons Phone #: (940)349-7607 Email: �ersr.�l.��sE��ayy�.�catyr�ir��f�[r�i'}��.�ar�a Page 1 of 6 Quotation __ _ _ _ _ — �ustomer P.O. or Contract #: Date: May 8, 2014 ACS Quote No.: 14-0194, R2 _ _— _ _ F.O.B. ( ) Norcross ACS Payment ( X ) Destination SChedule: 100% NET 30 at Shipping of Equipment to Gustomer Site Ship Via: Best Way Discount Schedule: 0- 10 units = O�o Discount is per each Purchase Order, 11-15units=5�o 16 - 20 units =109�o PO's can be submitted and then order delivery can I 21- 25 units =15% be scheduled throughout the 36 month period. PRICE ESCALATION NOTE: Prices will remain valid for 3 calendar years from date of purchase order. An escalation fee of 5% will be applied to unit prices for deliveries that are requested beyond the base 3 years with additional 5% increases for each additional 12 month period required to release delivery of all ordered units. _ __ _ __ Gustomer Requested Date: Sales Tax %: Not Induded ACS Estimated Shipping Date: 90 Days ARO for first batch of units Shipping Charges: Prepay & Invoice at (depending on ACS Factory schedule at time of order) Cost, minimum of $20 Item RtY i Qescrlptlon Un1t Prtce Total NTX-220 Substat9on Controller System __ _ _ 1 Z5 NTX-220 Substation Controller for New Substations as follows: $17,689 $442,225 NTX-220 Electronics Card Cage, P/N CF545051, 19" W x 5.25" H x 12" D, 19" rack mounted, with Power Supply, 5-slot System Node Mid-Plane and a 6 Slot Input Module mid-plane Motherboard. Advanced Control Systems Form ID:4.3-002-004 Orlg. Date: Nov..1976 Revlslon:10 Date:June 24.2010 File 5526 Exhibit D Page 2 of 6 NTX-220 System Controller Node with Termination, P/N A5545037/DA050205, Router/Gateway functionality with One 10/100baseT DNP3 and/or Modbus RTU over TCP/IP or UDP Ethernet Port, configurable as a client, a server, or multiples of both. Includes two configurable isolated EIA 561 RS-232 DTE/485 RJ45 serial ports, with DNP 3.0, and Modbus RTU primary/secondary protocols, Cooper 2179 primary IED protocol and AC57000, Harris 6000, LftG8979, SC- 1801, & SCOMD secondary protocols for master communications. Select the appropriate serial interface cable from optional items 2 or 3 or RS485 option 4. 32-bit ARM9E CPU running under an embedded version of the Linux operating system. Mini U5B Maintenance port and U56 for a thumb drive to update firmware and archive configuration files. IRIG-B Time Code Reader for unmodulated signaling and GPS Satellite Clock interface Mini-DIN connector using NMEA 0183 protocol induded with optional dock antenna available for NTX-220 time synchronization only. Supports NTP Synchronization via an Ethernet Connection. Includes NTX Logic Controller- Programmable Logic Controller application for the NTX-series that includes: NTU Logic Run-Time License induded for ACS or customer developed algorithms to be run on the System Controller in any NTX series so equipped. See option 10 for NTX Logic Development Software License, C/N 5080. NTX220 Local I/0 Controller, P/N 050235 for digital and analog input scanning - for up to 96 Analog Inputs (6 AIMs) or 192 Digital Inputs (6 DIMs) or any combination of modules in the 6 available I/0 slots. Mounted on top of the NTX System Controller Node. NTX Ethernet/Quad-Serial Gateway Node with Termination Module, P/N A5545008/DA050224, F/W P05-0105, with One 10/100baseT DNP3 and/or Modbus RTU over TCP/IP or UDP Ethernet Port, configurable for up to 64 IP clients, servers, or multiples of both. Includes Four configurable isolated EIA 561 RS-232 DTE/485 RJ45 serial ports, with DNP 3.0, and Modbus RTU primary/secondary protocols, Cooper 2179 primary IED protocol and ACS7000, Harris 6000, LEtG8979, SC-1801, Et SCOMD secondary protocols for master communications. Select the appropriate serial interface cable from optional items 2 or 3 or RS485 option 4. 32-bit ARM9E CPU running under an embedded version of the Linux operating system. NTX Binary Output Controller, P/N A5545016/050243 using an isolated 16 x 16 Binary Output relay driver Interface - for up to 256 External mounted control relay Interfaces. Two Spare NTX Gateway Node Slot available 96 Digital Input points using NTX Card File Mounted 32 Digital Input modules, A5545035/DA050410 x 3, SOE / Status / Accumulators, with 37-pin connectors for every 32 contact inputs - NTX-220 supplied isolated 24Vdc wetting voltage. Advanced Control Syatems Form ID: 4.3-002-004 Orlg. Date: Nov.. 1976 Revlslon: 10 Date: June 24, 2010 File 5526 Exhibit D Page 3 of 6 . _.___ _ — _ . i ltem Qty ; �� Descrlption Un1t PriGe TQtal _ - 32-point Digital Input Module lnterface Cable, AA400374 X 3, length to fit from NTX card file digital module to the first 32-pole Terminal block assembly and AA101268 X 3 to a second respective 32 pole terminal block assemblies. 32-point Terminal Block Assembly for each 16 digital inputs, P/N DA040310 x 6 32 pole compression terminal blocks with LED Contact State Indicators. Din rail mounted. Three Spare NTX I/0 Slots available Two 8-pt Relay Latching Module, 16 Latch relay outputs, DA075075 x 2, 2 form C contacts per relay rated at 10A C� 27Nac / 10A C� 32Vdc, DIN rail mounted. 32 Momentary Output Relays (16 T/C Pairs) using 8 point Control Relay Output Modules (10A, 150Vdc rated contacts), P/N DA075069 x 4 DIN rail mounted. NTX Power Supply, P/N 540100, 125Vdc/115Vac input with 24Vdc output for contact wetting and control output relay drivers and 5Vdc logic power. Card Cage Mounted with Power Panel A5545043 for 130Vdc. For 19" Rack Mounting in customer supplied 90" equipment rack. Includes complete assembly and system level testing of complete unit, and custom NTX-220 drawings. NTX Explorer Configuration ft Diagnostic U5B Serial Cable - 10', USB 2.0 Cable, Type A-5 pin (mini-B). C/N 4194 NTU CDRom with all instruction manuals and literature on substation systems products. ._ __ _ S ubtotal $442, 225 __ Shipping & Handlln� Prepay, Involced at Cast, Min $20 __- _ — Total System $442,225 _— _ _ _ _ Options �.s� ��R:s�c��€ ��,� 3zri�� ;c•;;��(.��a.r �i�:r: �t�:� �� Ez �� n!� _ Z � NTX Option: NTX-200 Series Serial Port Communications Interface Cable $79 As Required - RJ-45 to 25 pin (M) R5232 DTE/DCE, AA401398 _ _ __ _ 3 1 NTX Option: NTX-200 Series Serial Port Communications Interface Cable S79 As Required - RJ-45 to 9 pin (M) R232 DTE/DCE, AA401489 _ _ 4 1 NTX Option: NTX-200 Series Serial Port Communications Interface Cable $11Q As Required - RJ-45 to RJ-8A Weidmuller for RS-485, AA401509 5 1 � $183 As Required NTX Option: GPS Antenna with GPS Satellite Time Base Unit with 6-pin male Mini-DIN connector and 5 meter cable, P/N AA543020. _ 6 1 NTX Option: GPS Antenna extension cable, StarTech 6-pin PS/2 Mini Din $38 As Required Extension Cable, 25 foot cable lengths with up to 100 foot extension cable length maximum. P/N KXT102_25 Advanced Control Systems Form ID: 4.3-002-004 Orlg. Date: Nov.. 1976 Revlslon: 10 Date: June 24. 2010 File 5526 Exhibit D Page 4 of 6 '� ltem � Qty �� Descrlption `Unit Pr1ce Total 7 1 NTX Option: Add BASE NTX-220 components consisting of: 56,475 As Required Base NTX-220 Electronics Card Cage, P/N CF545051, 19" W x 5.25" H x 12" D, 19" rack mounted. NTX-220 System Controller Node with Termination, P/N AS545037/DA050205. Includes NTX Logic Controller- Programmable Logic Controller application for the NTX-series, C/N 5080. NTX220 Local I/0 Controller, P/N 050235 NTX Power Supply, P/N 540100, 125Vdc/115Vac. Card Cage Mounted with Power Panel A5545043 for 130Vdc. 8 1 NTX Option: Add NTX Ethernet/Quad-Serial Gateway Node w9th $1,525 As Required Termination Module, P/N A5545008/DA050224, F/W P05-0105, with One 10/100baseT DNP3 and/or Modbus RTU over TCP/IP or UDP Ethernet Port, configurable for up to 64 IP clients, servers, or multiples of both. Includes Four configurable isolated EIA 561 RS-232 DTE/485 RJ45 serial ports, with DNP 3.0, and Modbus RTU primary/secondary protocols, Cooper 2179 primary IED protocol and ACS7000, Harris 6000, L8G8979, SC-1801, ft SCOMD secondary protocols for master communications. Select the appropriate serial interface cable from optional items 2 or 3 or RS485 option 4. 32-bit ARM9E CPU running under an embedded version of the Linux operating system. _ 9 1 NTX Optlon: Add NTX Binary Output Controller, P/N AS545016/050243 $920 As Required using an isolated 16 x 16 Binary Output relay driver Interface - for up to 256 External mounted control relay Interfaces. - _- . — 10 1 NTX Option: Adr� 16 Analog Inputs using Card File Mounted 16 Analog $2,779 As Required Inputs (A5545034/DA050417 X 1, (0 t 1 mA), with two 26-pin connectors for every 8 plus, minus, and EG Shield terminations to terminal block assemblies itemized below. Groups of 16 inputs with full 16-bit A/D per group supported. Includes 16-point Analog Input Module Interface Cable, P/N DA543019 X 2, DB25F to Terminal Block assembly, length to fit from NTX-300 card file analog modules to respective 24 pole terminal block assemblies. ' Indudes 16-point Terminal Block Assembly for each 8 analog inputs, P/N A5545032 x 2 24 pole removable compression terminal block assembly. _ _ 11 1 NTX Option: Add/Delete 32 Digital Input Points using one NTX Card F91e $1,615 As Required Mounted 32 Digital Inputs, A5545035/DA050410 x 1, SOE / Status / Accumulators, with 37-pin connectors for every 32 contact inputs - NTX- 200 supplied isolated 24Vdc wetting voltage or optional customer supplied ' DC Battery voltage 48 or 130Vdc supported. Indudes 32-point Digital Input Module Interface Cable, DA543019 X 1, length to fit from NTX card file digital module to up to two respective 32 ' pole terminal block assemblies. Includes 32-point Terminal Block Assembly for each 16 digital inputs, P/N' AS545033 x 2 32 pole removable compression terminal blocks. Din rail mounted. Advanced Control Syatems Form ID: 4.3-002-004 Orlg. Date: Nov.. 1976 Revlslon: 10 Date: June 24. 2010 File 5526 Exhibit D Page 5 of 6 _..__ _ . _ ._ . __ _ Item �'�� RtY �� ' D�scrlption 1lMt Pri�e Tc�tal 12 1 NTX Option: Add/Delete External 8 Latching Relay Module, P/N DA075075, $717 As Required including DIN Rail Mounting �t Interface Ribbon Cable. _ . 13 1 NTX Option: Add/Delete External 8 Momentary Relay Module, P/N $612 As Required DA075069, induding DIN Rail Mounting Et Interface Ribbon Cable. .. _ __ _ _ _ 14 1 NTX Option: Bell 202 Modem, FSK, A5545045 / DA050461. $725 As Required ACS card file mounted Bell 202 Modem using one Analog or Digital Input Module Slot. Indudes isolated Radio Keying PTT output and serial port interface cable. _ __ 15 1 NTX Option: NTX Logic Editor Software license Customer's per-PC installation charge for the customer to develop their own NTX Logic Applications. The Logic Editor is a complete programming environment used to develop highly portable applications. It fully supports IEC 61131 and IEC 61499 programming languages. The Logic Editor also provides tools for editing, debugging, code generation, documentation, library management, archiving, on-line monitoring, off- line simulation and on-line changes. The licenses are based on the amount of actual I/0 needed. There is no limit to the number of internal tags used in a program. Fully IEC 61131 compliant software that supports: • SPC: Sequential Function Chart • FBD: Function Block Diagram . LD: Ladder Diagram . IL: Instruction List . FC: Flow Chart 32 1/O Version $276 As Required 128 I/0 Version 5830 As Required 256 I/0 Version $1,107 As Required Unlimited I/0 Version $2,675 As Required 16 Lot Option: On-site instaUation, configuration, and site commissioning $ 1,680 per day $5040 Minimum assistance by an ACS Engineer/Technician (minimum Three days including travel t9me plus travel & living expenses) Expenses estimated for On-site assistance at $ 2,500 - To be Billed at Cost Estimate $2,500 Billed at Cost Advenced Control Systems Form ID: 4.3-002-004 Orlg. Date: Nov.. 1976 Revlslon: 10 Date: June 24. 2010 File 5526 Exhibit D 5ugplement�l Terms & Conditions of 5�9�s System Delivery A standard PRISM system lead-time is 120 days ARO or sooner. System services will be performed remotely, if possible. For On-Site services, all travel and living expenses will be billed at cost A premium (a fe2 equat to a percentage of the quoted total price) will be added to orders requesting expedited delivery. Requests for expedited delivery under 80 days will be addressed on a case-by-case basis and require a premium of 25%. All expedite processes must be authorized in writing, and cannot be cancelled once started. If ACS does not meet the required delivery, the expedite premium will be forfeited, but not the additional shipping charges. Parts Delivery Normal parts lead-time is 30 days ARO. A premium (a fee equal to a percentage of the quoted total price) will be added to orders requesting expedited delivery. Parts orders that require next day delivery will be billed at a+20% premium, with a minimum adder of $100. Shipment of parts not in stock will be addressed on a case-by-case basis. All expedite processes must be authorized in writing, and cannot be cancelled once started. If ACS does not meet the required delivery, the expedite premium will be forfeited, but not the additional shipping charges. 3, NTU Delivery � Normal NTU (RTU) lead-time is 90 to 120 days ARO or sooner. • A premium (a fee equal to a percentage of the quoted total price) will be added to orders requesting expedited delivery. a Requests for expedited delivery between 30 and 60 days will require a premium of +20% with a minimum adder of $500. • Requests for expedited delivery to less than 30 days will require a premium of +50% with a minimum adder of $3,000. 3 Orders for expedited delivery to 60-90 days will be addressed on a case-by-case basis. All expedite processes must be authorized in writing, and cannot be cancelled once started. � If ACS does not meet the required delivery, the expedite premium will be forfeited, but not the additional shipping charges. IED Profiles Each IED device profile qualified by ACS is based on information supplied by the IED vendor and includes specific IED firmware versions An IED vendor may change their specific device profile from the original profile that ACS has implemented and tested. In such a case, the customer is responsible for notifying ACS and coordinating with the IED vendor for device profile changes. In the case where device protocol or profile re-certification is required, ACS will work closely with the customer and the IED vendor. Either the customer or IED vendor will be responsible for the cost of any additional profile work determined not to be the fault of ACS. Any errors or omissions in the profile at the fault of ACS will be corrected as quickly as possible at no additional cost. Shipping & Handling Standard shipping within the continental US is typically 5-7 business days. A shipping ft handling fee of $35 will be added to each small package shipment. No separate freight invoice will be submitted. Packages exceeding $35 freight charges will be billed at cost, or fixed pre-quoted cost if applicable. Charges for premium shipping (next day morning delivery, afternoon delivery, etc.) will be billed at cost. �VIC�S AND DOCUMENTATION; tdvG�a�cee� Control Systems, Inc. 7'�r5 Northwoods Parkway ar�Fas�, Georgia 30071 eta�� IED Certification Laboratory Page 6 of 6 PURCHASE ORDERS: Advanced Control Systems, Inc. 2755 Northwoods Parkway Norcross, Georgia 30071 Attn: Order Entry Team EmaiI:ACS.Order. Entry.TeamC�efacec.com This quotation contains proprietary information. The above quotation is valid for ninety (90) days. All prices are based on system purchase. Alt purchase orders should be mailed to the above address. Please inUude Billing and Shipping Information. Rvv3�,M- CHnt C_owan Tirlo• C��hcraHnn SvctPms �,na�el c�le� r. uMr4oHn,o Advanced Control Systems Form ID: 4.3-002-004 File 5526 F'�r: Dan [�r�nn�n Titl�:: Saies dlrect�rr Orlg. Date: Nov.. 1976 Revlslon: 10 Date: June 24. 2010