HomeMy WebLinkAbout2019-503-E AMS - Siemens Controls Desigo CC Software upgrade
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[Departmental Use Only]
TITLE Desigo Controls
FY 2019-20
NORTH CAROLINA
CONSTRUCTION AGREEMENT UNDER $250,000.00
ORANGE COUNTY
THIS CONSTRUCTION AGREEMENT (hereinafter called “Agreement”), made as of the 15th
day of July, 2019, by and between Siemens Building Technologies, (hereinafter called the “Contractor”),
and Orange County, a body politic and a political subdivision of the State of North Carolina, (hereinafter
called the “County,” “Orange County,” and/or “Owner”).
W I T N E S S E T H:
That the Contractor and the Owner, for the consideration herein named, agree as follows:
1. CONTRACT DOCUMENTS; PRIORITY
The Contract Documents consist of this Agreement, the Request for Proposals, Proposal,
Construction Drawings, and Written Specifications. The Contract Documents form the Contract. In the
event of any inconsistency between or among the Contract Documents the Contract Documents shall be
interpreted in the following order of priority:
a. This Agreement.
b. Designer Approved Bulletins and/or Field Orders.
c. Request for Proposals and addenda thereto.
d. Proposal.
2. SCOPE OF WORK
The Contractor shall furnish and deliver all of the materials, and perform all of the work
required by this Agreement within the time period stipulated in a written Notice-to-Proceed to be
executed by the Contractor and Owner and in accordance with the following enumerated documents,
which are made a part hereof as if fully contained herein:
a. Construction Drawings prepared by N/A (Sheet dated )
b. Written specifications prepared by the project engineer.
c. Siemens Building Technologies proposal dated February 21, 2019 which fully describes
the work to be performed. Such work will hereafter be called the “Work”.
d. Related documents listed under Section 1 above.
3. TERM AND SCHEDULING
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a. The Contractor agrees to commence work pursuant to the written Notice to Proceed.
b. The Contractor agrees to complete substantially all Work by June 30, 2020.
c. Time is of the essence with respect to all dates specified in the Contract Documents as
Completion Dates.
d. The Contractor shall perform the Work in the time, manner, and form required by the
Contract Documents and as stipulated in a written Notice-to-Proceed to be executed by the
Contractor and Owner.
e. It is expressly understood that the Owner will employ other contractors to perform work as
a part of the Project whose work will be performed simultaneously and sequentially with
the performance of the Work by the Contractor. It shall be necessary for the Contractor to
coordinate its activities with such other contractors, particularly with respect to access to
work areas, storage of materials and other common facilities.
f. Should the Owner determine that the Contractor is behind schedule Owner may require, at
no additional cost to the Owner, the Contractor to expedite and accelerate its efforts,
including providing additional resources and working overtime, as necessary, to perform
the Work in accordance with the approved project schedule.
4. STANDARD OF CARE
a. The Contractor shall exercise reasonable care and diligence in performing the Work in
accordance with the highest generally accepted standards of this type of Contractor
practice throughout the United States and in accordance with applicable federal, state and
local laws and regulations applicable to the performance of these services. Contractor is
solely responsible for the professional quality, accuracy and timely completion and/or
submission of all work.
b. The Contractor shall not load or permit any part of the Work to be loaded with a weight
that will endanger its safety, intended performance or configuration.
c. Contractor shall be responsible for all errors or omissions caused by its employees, agents,
contractors, or assigns in the performance of the Agreement. Contractor shall correct any
and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional
cost to the Owner.
d. Contractor is an independent contractor of Owner. Any and all employees of the
Contractor engaged by the Contractor in the performance of any work or services required
of the Contractor under this Agreement, shall be considered employees or agents of the
Contractor only and not of the Owner, and any and all claims that may or might arise under
any workers compensation or other law or contract on behalf of said employees while so
engaged shall be the sole obligation and responsibility of the Contractor.
e. If activities related to the performance of this Agreement require specific licenses,
certifications, or related credentials Contractor represents that it and/or its employees,
agents and subcontractors engaged in such activities possess such licenses, certifications,
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or credentials and that such licenses certifications, or credentials are current, active, and
not in a state of suspension or revocation.
f. The Contractor is responsible for all physical damage to owned or rented machinery, tools,
equipment, forms, and other items owned, rented or used by the Contractor and/or
Subcontractor(s) in the performance of the Work including all of Owner’s property in
Contractor’s care, custody, or control, and all such property while it is in transit.
g. The Contractor is solely responsible for obtaining all permits necessary to complete the
Work in compliance with all local, state, and federal laws.
5. PAYMENT & TAXES
a. The Owner hereby agrees to pay to the Contractor for the faithful performance of this
Agreement, and the Contractor hereby agrees to perform all of the Work for a sum not-to-
exceed One Hundred Twenty Four Thousand Five Hundred Dollars ($124,500.00). Not
later than the fifth (5th) day of each calendar month the Contractor shall submit to the
Owner’s Representative, generally the architect if an architect is retained on the Work, a
Request for Payment for work done during the previous calendar month.
i. The Request for Payment shall be in form of a standardized invoice or AIA
Document G702-703 appropriately addressed to Owner’s Representative at Angel
Barnes PO Box 8181 Hillsborough NC 27278 and shall show substantially the
value of work done during the previous calendar month.
ii. The amount due for payment shall be ninety-five percent (95%) of the value of
work completed since the last Request for Payment and this amount shall be paid
by the Owner on or before the last business day of the month. Owner shall retain
five percent (5%).
1. Upon Owner’s Representative’s certification that ninety percent (90%) of
the Work has been satisfactorily completed retainage may be discontinued.
Retainage may be discontinued, at Owner’s Discretion, so long as work
continues to be completed satisfactorily and on schedule.
iii. Final payment shall not be due to the Contractor until thirty (30) days after one
hundred percent (100%) of the Work, including punch list work, has been
satisfactorily completed and an appropriate affidavit as required in Section 7(c)
below has been received by Owner.
b. Should Owner reasonably determine that Contractor has failed to perform the Work related
to a Request for Payment, Owner, at its discretion may provide the Contractor ten (10)
days to cure the breach. Owner may withhold the accompanying payment without penalty
until such time as Contractor cures the breach.
i. Should Contractor or its representatives fail to cure the breach within ten (10) days,
or fail to reasonably agree to such modified schedule, Owner may immediately
terminate this Agreement in writing, without penalty or incurring further obligation
to Contractor.
ii. This section shall not be interpreted to limit the definition of breach to the failure to
perform the Work related to a Request for Payment.
c. The Contractor has included in the Contract Price and shall pay all taxes assessed by any
authority on the Work or the labor and materials used therein. It shall be the Contractor's
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responsibility to furnish the Owner documentary evidence showing the materials used and
sales and use tax paid by the Contractor and each of its subcontractors.
6. INSURANCE AND BONDS
a. Minimum requirements – Contractor shall obtain, at its sole expense, Commercial General
Liability Insurance, Automobile Insurance, Workers’ Compensation Insurance, and any
additional insurance as may be required by Owner’s Risk Manager as such insurance
requirements are described in the Orange County Risk Transfer Policy and Orange County
Minimum Insurance Coverage Requirements (each document is incorporated herein by
reference and may be viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php). If
Owner’s Risk Manager determines additional insurance coverage is required such
additional insurance shall be designated here N/A (if no additional insurance required mark
N/A as being not applicable). Contractor shall not commence construction work until such
insurance is in effect and certification thereof has been received by the Owner's Risk
Manager.
b. Performance Bonds – Contractor shall furnish bonds covering the faithful performance of
the Contract and payment of all obligations arising under any of the Contract Documents
or related in any way to the Work. Contractor shall immediately furnish a copy of such
bonds to any requesting person who appears to be a potential beneficiary of bonds
covering payment obligations arising under any of the Contract Documents. This
subsection 6(b) applies only to Contracts of fifty thousand dollars ($50,000.00) or more
where the total cost for the project is three hundred thousand dollars ($300,000.00) or
more.
7. INDEMNITY
a. The Contractor shall indemnify, without limitation, and hold harmless to the maximum
extent permitted by law the Owner and its agents and employees from and against any and
all claims, damages, losses and expenses, including attorney's fees, arising out of or
resulting from the performance or nonperformance of the Work, provided that any such
claim, damages, loss or expense (A) is attributable to bodily injury, sickness, disease or
death or injury to, or destruction of, property, including the loss of use resulting therefrom;
and (B) is caused in whole or in part by any breach of any provision of the Agreement or
by any negligent or wrongful act or omission of the Contractor, any Subcontractor, or
supplier of the Contractor, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable. The indemnification obligation under
this paragraph shall not be limited in any way by any limitation of the amount or type of
damages, compensation or benefits payable by or for the Contractor or any subcontractor
under workers' compensation acts, disability benefits acts or other employee benefit acts.
b. The Contractor shall indemnify and hold harmless Owner from any lien of whatever type
through the purchase of appropriate bonds and insurance as designated in Section 6 above.
In the event any such lien is filed against Owner’s property Contractor shall, through such
bonds and insurance or at Contractors expense, defend Owner against all such claims of
lien.
c. Upon completion of the Work the Contractor shall execute an affidavit stating there are no
unpaid debts for any work that has been done or materials that have been furnished to the
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project prior to and as of the date of substantial completion and further stating that
Contractor shall indemnify, save and protect Owner and Owner’s lender, if any, harmless
from and against any and all claims, liabilities, losses, damages, causes of action, and
expenses (including court costs and reasonable attorney’s fees related thereto) arising out
of, in connection with, or resulting from any such debts and liens. Such indemnification
shall be in a form and substance acceptable to Owner.
d. By executing this Agreement Contractor agrees to abide by and be bound by the
indemnification provisions herein and of Section 7(c) specifically.
8. DISPUTE RESOLUTION AND GOVERNING LAW
a. Any dispute with respect to any provision of, or the performance or non-performance of,
this Agreement shall be subject to the Dispute Resolution Rules and Procedures for Orange
County Design, Building Construction, Renovation, and Repair Projects. The policy is
incorporated herein by reference and may be viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php).
b. The laws of the State of North Carolina shall apply to the interpretation and enforcement of
this Agreement. Any and all suits or actions to enforce, interpret or seek damages with
respect to any provision of, or the performance or nonperformance of, this Agreement or
the Contract shall be brought in the General Court of Justice of North Carolina sitting in
Orange County, North Carolina and it is agreed by the parties that no other court shall have
jurisdiction or venue with respect to such suits or actions.
c. Notice of any claim by Owner or Contractor must be initiated by written notice to the other
Party within thirty (30) days of the occurrence of the event giving rise to the claim or
within thirty (30) days of the discovery of the event or condition giving rise to the claim,
whichever is later.
i. Should any claim be made, regardless of whether such claim is made by Owner or
Contractor, Contractor shall continue to faithfully and diligently perform the Work
in such a manner as to meet all scheduled timelines. Any failure to faithfully and
diligently perform the Work may be deemed, by the Owner, a breach of the
Contract.
ii. If a claim is made such claim shall be made to the initial decision maker, if
applicable, who may request more supporting data, reject the claim in whole or in
part, approve the claim in whole or in part or advise the parties the claim is unable
to be resolved.
iii. If a claim is made by the Owner the Owner may, but is not obligated to, notify the
surety.
9. NON–APPROPRIATION
a. Contractor acknowledges that Owner is a governmental entity, and the validity of this
Agreement is based upon the availability of public funding under the authority of its
statutory mandate.
b. In the event that public funds are unavailable and not appropriated for the performance of
Owner’s obligations under this Agreement, then this Agreement shall automatically expire
without penalty to Owner immediately upon written notice to Contractor of the
unavailability and non-appropriation of public funds. It is expressly agreed that Owner
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shall not activate this non-appropriation provision for its convenience or to circumvent the
requirements of this Agreement, but only as an emergency fiscal measure during a
substantial fiscal crisis.
c. In the event of a change in the Owner’s statutory authority, mandate and/or mandated
functions, by state and/or federal legislative or regulatory action, which adversely affects
Owner’s authority to continue its obligations under this Agreement, then this Agreement
shall automatically terminate without penalty to Owner upon written notice to Contractor
of such limitation or change in Owner’s legal authority.
10. NOTICES
Any notice required by this Agreement shall be in writing and delivered by certified or registered
mail, return receipt requested to the following:
Owner: Contractor:
Orange County Siemens Building Technologies
Attn: Angel Barnes 215 Southport Dr, Suite 900
P.O. Box 8181 Morrisville, NC 27560
Hillsborough, NC 27278
11. MISCELLANEOUS
a. Duties and Obligations imposed by the Contract Documents shall be in addition to any
Duties and Obligations imposed by state, federal or local law, rules, regulations and
ordinances.
b. No act or failure to act by the Owner or Contractor shall constitute a waiver of any right or
duty granted them under the Contract Documents, nor shall any act or failure to act
constitute any approval except as specifically agreed in writing.
c. The Work shall be tested and inspected as required by the Contract Documents and as
required by law. Unless prohibited by law the costs of all such tests and inspections
related to state and federal codes such as ADA, Administrative, Electrical, Plumbing,
Mechanical and Building Codes shall be borne by the Contractor. The costs for material
and structural testing shall be conducted by an independent third party at the expense of the
Owner. Delays related to any of the aforementioned tests and inspections shall not be
grounds for delaying the completion of the work. If any such tests and inspections reveal
deficiencies in the Work such that the Work does not comply with terms or requirements
of the Contract Documents and/or the requirements of any code or law the Contractor is
solely responsible for the cost of bringing such deficiencies into compliance with the terms
of the Contract Documents and/or any code or law.
d. Should the Architect, if an architect is retained for the project involving the Work, or
Owner reject any portion of the Work for failing to comply with the Contract Documents
Contractor shall immediately, at Contractor’s expense, correct the Work. Any such
rejection may be made before or after substantial completion. If applicable, any additional
expense borne by the Architect under this section shall be paid at Contractor’s expense.
e. The Contractor shall not assign any portion of this Agreement nor subcontract the Work in
its entirety without the prior written consent of the Owner.
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f. By executing this Agreement Contractor affirms that Contractor and any subcontractors of
Contractor are and shall remain in compliance with Article 2 of Chapter 64 of the North
Carolina General Statutes.
g. By executing this Agreement Contractor certifies that Contractor has not been identified,
and has not utilized the services of any agent or subcontractor identified, on the list created
by the State Treasurer pursuant to G.S. 147-86.58.
h. By executing this Agreement Contractor certifies that Contractor has not been identified,
and has not utilized the services of any agent or subcontractor identified, on the list created
by the State Treasurer pursuant to G.S. 147-86.81.
i. The County has designated (Angel Barnes) to act as the County's representative with
respect to the Work and shall have the authority to render decisions within guidelines
established by the County Manager and/or the County Board of Commissioners and shall
be available during working hours as often as may be reasonably required to render
decisions and to furnish information.
j. Contractor shall at all times remain in compliance with all applicable local, state, and
federal laws, rules, and regulations including but not limited to all state and federal non-
discrimination laws, policies, rules, and regulations and the Orange County Non-
Discrimination Policy and Orange County Living Wage Policy (each policy is incorporated
herein by reference and may be viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php). Any
violation of the Orange County Non-Discrimination Policy is a breach of this Agreement
and County may immediately terminate this Agreement without further obligation on the
part of the County. This paragraph is not intended to limit and does not limit the definition
of breach to discrimination.
k. This Agreement together with any amendments or modifications may be executed
electronically. All electronic signatures affixed hereto evidence the consent of the Parties
to utilize electronic signatures and intent of the Parties to comply with Article 11A and
Article 40 of North Carolina General Statute Chapter 66.
12. CONSEQUENTIAL AND LIQUIDATED DAMAGES
a. Owner and Contractor mutually waive any claim against each other for consequential
damages. Consequential Damages include:
i. Damages incurred by Owner for loss of use, income, financing, or business.
ii. Damages incurred by Contractor for office expenses, including personnel, loss of
financing, profit, income, business, damage to reputation, or any other non-direct
damages.
b. Liquidated damages shall be in accord with the Contract Documents. If the Contract
Documents do not otherwise address liquidated damages, such damages shall be in the
amount of five hundred dollars ($500.00) per day.
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13. TERMINATION OR SUSPENSION
a. The Owner may, without cause, order the Contractor to terminate, suspend, delay or
interrupt the Work in whole or in part for such period of time as the Owner may determine.
i. If Owner issues a written order to delay, suspend, or interrupt the Work, and such
order is not due to or as a result of any fault on the part of the Contractor or any
subcontractor, the Contractor may recover a per diem amount of five hundred
dollars ($500.00) per day with a not-to-exceed limit of ten thousand dollars
($10,000.00).
ii. In the event of termination by the Owner under this Agreement, the Contractor
shall be entitled to receive its reasonable and documented direct costs prior to
termination, including the cost of materials purchased for the Work which
purchases cannot be canceled or which material cannot reasonably be used by the
Contractor on other work, and the cost of closing down the work in a safe and
efficient manner.
iii. If Owner elects to suspend or terminate the contract pursuant to subparagraphs
13.a.i. or 13 a.ii. the sole remedy available to the Contractor are those listed in the
subparagraphs and Contractor is not entitled to any right to further claims for any
amount owed or disputed or for payment of damages alleged to have been sustained
as a result of Owner’s order to delay, suspend, or interrupt the Work.
b. The Owner may, with cause, order the Contractor to suspend, delay or interrupt the Work
in whole or in part for such period of time as the cause remains.
i. If Owner issues a written order to delay, suspend, or interrupt the Work, and such
order is due to or as a result of any fault on the part of the Contractor or any
subcontractor, the Owner may reduce payment at a per diem amount of five
hundred dollars ($500.00) per day.
c. Contractor may terminate the Contract if, at the Owner’s written direction, the Work is
stopped for twenty one (21) consecutive days through no act or fault of the Contractor,
their agents or employees, or a subcontractor or their agents or employees or any other
person performing work pursuant to the Contract Documents. Contractor may terminate
the Contract if a Court or other Public authority having jurisdiction enters a lawful order
that requires all work to be stopped and such stoppage lasts for twenty one (21)
consecutive days.
14. ENTIRE AGREEMENT
All of the documents listed, referenced or described in this Agreement, the written Notice-to-
Proceed, together with Modifications made or issued in accordance herewith are the Contract Documents,
and the work, labor, materials and completed construction required by the Contract Documents and all
parts thereof is the Work. The Contract Documents constitute the entire agreement between Owner and
Contractor. This Agreement may be amended only by written instrument signed by both parties.
Modifications may be evidenced by facsimile signatures. If any provision of the Agreement shall be
declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect.
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[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and
date first above written wholly or in a number of counterparts each of which shall, without proof or
accounting for other counterparts, be deemed an original contract.
ORANGE COUNTY CONTRACTOR
____________________________________ ________________________________________
Signature Signature
County Manager
________________________________________
Printed Name and Title
DocuSign Envelope ID: 15027EFD-227A-4F40-AC0E-22DDC9A9A2B9
Jake Snyder
Sales Executive
215 Southport Dr, Suite 900
Morrisville, NC 27560
Mobile: (919) 413-1666
Email: jacob.snyder@siemens.com
Page 1 of 7
Initials ______
PROPOSAL PRICING
Total Price: $124,500 One hundred twenty four thousand five hundred dollars
Siemens Industry, Inc. shall provide the services as outlined in the attached proposal dated February 21st,
2019. Price quoted in this proposal excludes sales tax. Sales tax will be included on the invoice unless
Siemens receives a completed NCDOR E589CI (North Carolina Affidavit of Capital Expenditures). We have
included an NCDOR E589CI form with this proposal for your convenience. Prices quoted in this proposal are
firm for 90 days. Attached terms and conditions are incorporated and made part of this proposal.
The Terms and Conditions of Sale shown on the attached are a part hereof;
Proposal Accepted By: Proposal Submitted By:
Siemens Industry, Inc. is authorized to proceed with
the work as proposed.
Company:
Company: Siemens Industries, Inc.
By:
By: Jake Snyder
Title:
Title: Account Executive
Date:
Date: 2/21/2019
Signature:
Signature:
Project Name:
Orange County Green Migration – Fast Forward Migration and Energy Commissioning
Proposal Date: 2/21/2019 (proposal valid for 90 day)
Summary: We propose to migrate Orange County’s Siemens Building Management System to
the latest technology: Insight to Desigo CC software; MEC to PXC series controllers,
conduct an energy audit on the Whitted Facility; establish Fault Detection and
Diagnotics on (2) AHUs at Whitted; and provide customer training on associated
improvements.
DocuSign Envelope ID: 15027EFD-227A-4F40-AC0E-22DDC9A9A2B9
Jake Snyder
Sales Executive
215 Southport Dr, Suite 900
Morrisville, NC 27560
Mobile: (919) 413-1666
Email: jacob.snyder@siemens.com
Page 2 of 7
Initials ______
General Scope Items
Includes the following provisions for the renovation;
1. Provide One (1) year warranty for workmanship and parts
2. Payment Terms per the specifications
3. Project management
MEC/FLNC Migration
Furnish and install the following as noted in the below scope with the following clarification and/or
exceptions;
1. Before any work shall commence, we will notate any failed points or points in override and bring
this to the customers attention
2. Label all existing wiring in existing MEC panel
3. Remove existing MEC electronic board components and modules
4. Provide and install one PXC conversation kit with backplane in existing MEC cabinet
5. Provide and install PXC series controller along with necessary expansion modules in existing MEC
cabinet
6. Convert existing programming in MEC over to new PXC modular
7. Perform standard startup and checkout of new PXC panel as well as expansion modules to ensure
conversion process was completed successfully
8. Perform a point to point verification to ensure all points are reading correctly and operating
correctly
9. The following obsolete controllers will be migrated according to this scope:
Animal Services, MEC 01
Controls: Hot Water System (2 x Boilers, 3 x Pumps, Temps, DPs)
Animal Services, MEC 02
Controls: Exhaust Fans, Fan Coil Units, VAVs
Justice, MEC 04
Controls: Geothermal (Pumps/VFDs, Water Temps, Outside Temp/Hum, RM
Temps), Electric Meter, Water Meter, Air Handler Emergency Stop, Heap
Pumps, Domestic HW, Heat Recovery Unit 1
Whitted, MEC Node 02
Controls: Air Handler 1B, Space CO2, Ground and 1st Floor VAVs
Whitted, MEC Node 03
Controls: Air Handler 1G & 2G, Space Temps, Gym CO2, AHU 1-4
Whitted, FLNC Node 04
Controls: Ground and 1st Floor TECs
Insight to Desigo CC Migration
Furnish and install the following as noted in the below scope with the following clarification and/or
exceptions;
1. New computer and peripheral devices provided by Orange County
2. Desigo CC software installed on new computer
Includes all licensing at the Preferred Customer pricing level for being an active Siemens
customer (best pricing available)
3. Insight database migrated to Desigo CC
4. Connect existing field panel/controller and FLN networks to Desigo CC
5. Add existing user accounts to Desigo CC
6. Determine existing and used trends, reports, and graphics and migrate to Desigo CC
7. Graphics will be upgraded using vector formatting and enhanced functionality.
8. Includes (4) hours of onsite training
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Jake Snyder
Sales Executive
215 Southport Dr, Suite 900
Morrisville, NC 27560
Mobile: (919) 413-1666
Email: jacob.snyder@siemens.com
Page 3 of 7
Initials ______
The existing Siemens Service Agreement contains (4) hours per quarter for on-site
training in addition to the (4) hours provided in this scope
9. Includes (14) training seats for off-site Siemens BMS training. These training seats can be used
individually for courses provided at our Morrisville, NC branch location, according to our
published schedule. And/or, Orange County can schedule a specific training course at your
facility with a minimum of (7) student seats per course. Course options are:
ST 9203: Desigo CC Workstation I
ST 9254: Desigo CC Workstation II
ST 9273: Desigo CC Master Operator
Energy Optimization
Siemens will provide energy optimization through Existing Building Commissioning for the Whitted
facility only (focusing on AHU-1A and 1B).
1. Evaluation of energy use trends
2. Review of programming strategies
3. Inspection of current HVAC scheduling
4. Assessment of field devices and components for optimal efficiency
5. Identification and implementation of low cost / no cost improvements and Facility Improvement
Measures (FIMs)
6. Ongoing monitoring using Siemens Navigator for FDD (custom fault rules for Whitted AHUs 1A
and 1B).
Includes implementation of FDD and customer training. Triage and/or repair of faults
identified are not included under this scope. The existing Siemens Service Agreement or
Time and Material labor can be used to correct fault deficiencies.
Exclusions & Clarifications (applies to all sections)
1. Pricing assumes normal hours (Monday – Friday).
2. Excludes furnishing and installation of the following unless noted otherwise in this proposal;
a. Fire Smoke Dampers (FSD) or Smoke Control Dampers (SCDs)
b. Power to FSDs or SCDs. 120V power provided by Electrical Contractor (shown as 120V in
electrical drawings)
c. Starters or disconnects
d. Line voltage power
e. Control Dampers
3. Repairs or replacement due to existing failures. We will bring these issues to your attention when
found.
4. Proposal excludes any labor or materials beyond the scope of this project
5. Bond is Excluded
6. Excludes any civil, structural, or architectural penetrations or finishing.
7. Excludes high voltage electrical wiring
8. Excludes Fire Panel and Life Safety.
9. Excludes any on-going service tasks.
10. Excludes IP drops that may be necessary for new control panels.
11. Proposal excludes sales tax. Sales tax will be included on the invoice unless Siemens receives a completed
NCDOR E589CI (North Carolina Affidavit of Capital Expenditures). We have included an NCDOR E589CI
form with this proposal for your convenience.
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GENERAL TERMS AND CONDITIONS
(Solutions)
Siemens Industry, Inc., Building Technologies Division Solutions (v.5/15)
Article 1: General
1.1 These General Terms and Conditions, including any
supplemental terms (each a “Rider”), are attached to and made part
of the Proposal or other document as the case may be including any
change order, in which these General Terms and Conditions are
incorporated (the “Document”), that when approved in writing by the
Customer and accepted by an authorized representative of Siemens
shall (a) constitute the entire, complete and exclusive contract
between the parties (this “Agreement”) (i) to implement the work and
services identified in the Scope of Work or Proposed Solution
section of the Document (collectively, the "Work") to be provided by
Siemens and (ii) for the physical equipment (“Equipment”), software
owned or licensable by Siemens (“Software”), any related
documentation (“Related Documentation”), deliverable Instruments
(as defined in Section 2.2), and Work Product Deliverables (as
defined in Section 2.1) identified in the Document to be provided by
Siemens under the Agreement in accordance with the performance
of the Work (collectively, the “Deliverables”) and (b) supersedes and
cancels all prior proposals, agreements and understandings, written
or oral, relating to the subject matter of this Agreement.
1.2 Neither party may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other
except that either party may assign this Agreement to its affiliates
and Siemens may grant a security interest in the proceeds to be paid
to Siemens under this Agreement; assign proceeds of this
Agreement; and/or use subcontractors in performance of the Work.
1.3 The terms and conditions of this Agreement shall not be
modified or rescinded except in writing signed by duly authorized
officers or managers of Siemens and Customer.
1.4 In the event of conflict between the other sections of the
Document and these General Terms and Conditions, these General
Terms and Conditions shall control. In the event of conflict between
a Rider and any section of the Document or these General Terms
and Conditions, the Rider shall control. Any differing or additional
terms and conditions in any purchase order or other document are
of no force and effect unless specifically accepted in writing by the
parties.
1.5 Nothing contained in this Agreement shall be construed to give
any rights or benefits to anyone other than the Customer and
Siemens without the express written consent of both parties. All
provisions of this Agreement allocating responsibility or liability
between the parties shall survive the completion of the Work and
termination of this Agreement.
1.6 Certain terms and conditions contained herein may not apply to
the Work to be provided hereunder. It is the intent of the parties,
however, that the interpretation to be given to the terms and
conditions is to apply all terms and conditions unless clearly
inapplicable given the type of Work included.
1.7 This Agreement shall be governed by and enforced in
accordance with the laws of the State of Illinois. Any litigation
arising under this Agreement shall be brought in the State or
Commonwealth in which the Work is provided to Customer. TO THE
EXTENT PERMITTED BY LAW, THE PARTIES WAIVE ANY
RIGHT TO A JURY TRIAL ON MATTERS ARISING OUT OF THIS
AGREEMENT. Prior to either party initiating any action against the
other party, the issues shall first be referred to each party’s senior
management. Senior management of each party shall take
reasonable steps to resolve the matter at issue. Any permitted
action may be taken if the raised issue is not resolved within
fourteen (14) days of its initial referral to senior management.
1.8 If, during or within ninety (90) days after the term of this
Agreement, Customer engages any Siemens employee who has
performed work under this or any other agreement between
Customer and Siemens, Customer shall pay Siemens an amount
equal to the employee's latest annual salary.
Article 2: License and Intellectual Property
2.1 Any tangible form of a report or drawing specifically developed
for, commissioned by and deliverable to the Customer in connection
with Work performed by Siemens under this Agreement (“Work
Product Deliverables”) shall become the Customer’s property upon
receipt by the Customer and payment of any fees due Siemens
under this Agreement. Siemens may retain file copies of such Work
Product Deliverables.
2.2 If any know-how, tools and related documentation owned or
licensed by Siemens and used by Siemens to install or commission
Equipment and Software for operation at the Site, including but not
limited to tools for installing any Software, performing diagnostics on
Equipment as installed at the Site as well as any reports, notes,
calculations, data, drawings, estimates, specifications, manuals,
documents, all computer programs, codes and computerized
materials prepared by or for Siemens and used by Siemens to
provide the Work (“Instruments”) are provided to the Customer
under this Agreement, any such Instruments shall remain Siemens
property, including the intellectual property conceived or developed
by Siemens in the Instruments.
2.3 In addition, all intellectual property: (i) that has been conceived or
developed by an employee or subcontractor of Siemens before
Siemens performs any Work under this Agreement; (ii) that is
conceived or developed by such employee or subcontractor at any
time wholly independently of Siemens performing the Work under this
Agreement; or, (iii) if developed while performing the Work under this
Agreement, where the development of intellectual property for the
benefit of the Customer is not expressly identified as an item of Work
to be provided to the Customer or where such Work comprised or
corresponded to an update, improvement, configuration, or
modification of Equipment or Software made in the ordinary course
of business solely to allow such products to interface with any
software and/or equipment and/or to operate at a site specified by
Customer, (collectively, “Siemens Pre-existing Intellectual Property”)
that may be included in scope provided to the Customer under this
Agreement shall also remain Siemens’ property including the
Siemens Pre-existing Intellectual Property included in the Work
Product Deliverables. Siemens Pre-existing Intellectual Property is
also included in all reports, notes, calculations, data, drawings,
estimates, specifications, manuals, documents, all computer
programs, codes and computerized materials prepared by or for
Siemens.
2.4 All Work Product Deliverables and any Instruments provided to
the Customer are for the Customer’s use and only for the purposes
disclosed to Siemens. Siemens hereby grants the Customer a
royalty-free (once all payments due under this Agreement are paid
to Siemens), non-transferable, perpetual, nonexclusive license to
use any Siemens Pre-existing Intellectual Property solely as
incorporated into the Work and Deliverables (including Work
Product Deliverables and any Instruments provided to the Customer
under this Agreement). Under such license, and following
agreement to be bound to confidentiality provisions under this
Agreement and/or in accordance with any separate confidentially
agreement that may exist between the parties, Customer shall have
a right to: (a) Use, in object code form only, the Software that is
owned or licensed by Siemens or its affiliates and that is either
separately deliverable for use in the Equipment or for use in a
computer system owned by the Customer or delivered as firmware
embedded in the Equipment (“Software Deliverables”); (b) Make
and retain archival and emergency copies of such Software
Deliverables (subject to any confidentiality provisions) except if the
Software Deliverable is embedded in the Equipment; and, (c) Use
all such Equipment, Work Product Deliverables, and such
Instruments, provided however, the Equipment, Work Product
Deliverables, and Instruments shall not be used or relied upon by
any third-party, and such use shall be limited to the particular project
and location for which the Work is provided.
2.5 The Customer shall not transfer the Equipment, Software, Work
Product Deliverables, or Instruments to others or use them or permit
them to be used for any extension of the Work or any other project or
purpose, without Siemens' prior express written consent.
2.6 Any reuse of Equipment, Software, Work Product Deliverable,
or such Instruments for other projects or locations without the
written consent of Siemens, or use by any third party will be at the
users risk and without liability to Siemens; and, the Customer shall
indemnify, defend and hold Siemens harmless from any claims,
losses or damages arising therefrom.
2.7 In consideration of such license, the Customer agrees not to
reverse engineer any Equipment or Software to reconstruct or
discover any source code, object code, firmware, underlying ideas,
or algorithms of such Equipment or Software even to the extent
such restriction is allowable by law.
DocuSign Envelope ID: 15027EFD-227A-4F40-AC0E-22DDC9A9A2B9
GENERAL TERMS AND CONDITIONS
(Solutions)
Siemens Industry, Inc., Building Technologies Division Solutions (v.5/15)
2.8 Customer acknowledges that Siemens, in the normal conduct
of its business, may use concepts, skills and know-how developed
while performing other contracts. Customer acknowledges the
benefit which may accrue to it though this practice, and
accordingly agrees that anything in this Agreement
notwithstanding, Siemens may continue, without payment of a
royalty, this practice of using concepts, skills and know-how
developed while performing this Agreement.
2.9 Customer acknowledges that all Facilities Data (as defined in
paragraph 3.7) is owned by Siemens and may be used by
Siemens in a commingled or other reasonable manner, provided
that such use does not identify Customer or the location(s) of the
facility or facilities to which Facilities Data pertains.
Article 3: Work by Siemens
3.1 Siemens will perform the Work expressly described in this
Agreement and in any work release documents or change orders
that are issued under this Agreement and signed by the parties. The
Work performed by Siemens shall be conducted in a manner
consistent with the degree of care and skill ordinarily exercised by
reputable firms performing the same or similar work in the same
locale acting under similar circumstances and conditions.
3.2 Siemens shall perform the Work during its normal working
hours, Monday through Friday, excluding holidays, unless otherwise
agreed herein.
3.3 Siemens is not required to conduct safety or other tests, install
new devices or equipment or make modifications to any Equipment
beyond the scope set forth in this Agreement. Any Customer
request to change the scope or the nature of the Work must be in
the form of a mutually agreed change order, effective only when
executed by all parties hereto.
3.4 Siemens shall be responsible for any portion of the Work
performed by any subcontractor of Siemens. Siemens shall not have
any responsibility, duty or authority to direct, supervise or oversee
any contractors of Customer or their work or to provide the means,
methods or sequence of their work or to stop their work. Siemens'
work and/or presence at a site shall not relieve others of their
responsibility to Customer or to others. Siemens shall not be liable
for the failure of Customer’s contractors or others to fulfill their
responsibilities, and Customer agrees to indemnify, hold harmless
and defend Siemens against any claims arising out of such failures.
3.5 Siemens may rely on the accuracy and completeness of the
information furnished by the Customer. Siemens does not represent
that Siemens has made a detailed examination, audit or arithmetic
verification of the documentation submitted by Customer or of other
supporting data. Siemens does not represent that it has made
exhaustive or continuous on-site inspections.
3.6 To the extent that Work on a Fire and Life Safety (“FLS”) system
is included, the entire FLS system will be tested and inspected as set
forth in the National Fire Protection Association (“NFPA”) guidelines
72 2013 edition (or most current edition), Chapter 14, (hereby
incorporated by reference), or as otherwise may be required
pursuant to the law of the applicable jurisdiction. All testing of any
FLS system will be performed at the time and place and in the
manner deemed appropriate by Siemens, in accordance with
applicable law and the requirements of NFPA and other relevant
standards. Customer will be solely responsible for, and hereby
indemnifies and holds Siemens harmless from and against, any
liability arising from the Customer’s specification of any testing
schedule other than in accordance with NFPA guidelines or other
applicable standards.
3.7 In the event that a data backup or data collection product or
service is part of the Work and Siemens is to store the data, Siemens
will take reasonable steps to protect the security of all Facilities Data
stored offsite. Siemens does not represent or warrant that Facilities
Data will not be disseminated, compromised or corrupted by reason
of unauthorized actions of third parties. For the purposes of these
General Terms and Conditions, “Facilities Data” means electronic
data that is collected or generated by Siemens through scheduled
back-ups of the databases and/or graphics residing in the
workstation(s) and/or field panel(s) that constitute part of Customer’s
automation control system.
Article 4: Responsibilities of Customer
4.1 Customer, without cost to Siemens, shall:
(a) Designate a contact person with authority to make decisions for
Customer regarding the Work and provide Siemens with information
sufficient to contact such person in an emergency. If such
representative cannot be reached, any request for Work received
from a person located at Customer's site will be deemed authorized
by Customer, and Siemens will, in its reasonable discretion, act
accordingly;
(b) Provide or arrange for reasonable access and make all
provisions for Siemens to enter any site where Work is to be
performed;
(c) Permit Siemens to control and/or operate all facility controls,
systems, apparatus, equipment and machinery necessary to
perform the Work;
(d) Furnish Siemens with all available information pertinent to the
Work including but not limited to, and within ten (10) days of receipt
of a written request, all required reviews and approvals (or other
appropriate action) with respect to a reasonable request for
information, samples, estimates, schedules, shop drawings,
drawings, specifications, purchase orders, contracts, and other items
submitted and/or proposed by Siemens;
(e) Obtain and furnish Siemens with all approvals, permits and
consents from government authorities and others as may be required
for performance of the Work except for those Siemens has expressly
agreed in writing to obtain;
(f) Notify Siemens promptly of any site conditions requiring special
care, and provide Siemens with any available documents describing
the quantity, nature, location and extent of such conditions;
(g) Comply with all laws and provide any notices required to be
given to any government authorities in connection with the Work,
except such notices Siemens has expressly agreed in writing to give;
(h) Provide Siemens with Material Safety Data Sheets (MSDS)
conforming to OSHA requirements related to all Hazardous Materials
at the site which may impact the Work;
(i) Furnish to Siemens any contingency plans related to the site;
and
(j) Furnish the specified operating environment, including without
limitation, suitable, clean, stable, properly conditioned electrical
power to all Equipment; telephone lines, capacity and connectivity
as required by such Equipment; and heat, light, air conditioning and
other utilities in accordance with the specifications for the
Equipment.
4.2 Unless contrary to applicable law or regulation, Customer
acknowledges that the technical and pricing information contained in
this Agreement is confidential and proprietary to Siemens and agrees
not to disclose it or otherwise make it available to others.
4.3 Customer acknowledges that it is now and shall be at all times in
control of the Work site. Siemens shall not have any responsibility,
duty or authority to direct, supervise or oversee any employees or
contractors of Customer or their work or to provide the means,
methods or sequence of their work or to stop their work. Siemens’
Work and/or presence at a site shall not relieve others of their
responsibility to Customer or to others. Except as expressly provided
herein, Siemens is not responsible for the adequacy of the health,
safety or security programs or precautions related to Customer's or
its other contractors’ activities or operations; the work of any other
person or entity; or Customer's site conditions. Siemens is not
responsible for inspecting, observing, reporting or correcting health
or safety conditions or deficiencies of Customer or others at
Customer's site. So as not to discourage Siemens from voluntarily
addressing such issues, in the event Siemens does make
observations, reports, suggestions or otherwise regarding such
issues, Siemens shall not be liable or responsible for same.
4.4 Customer is solely responsible for any removal, replacement or
refinishing of the building structure or finishes that may be required
to gain access to the Work.
4.5 Customer represents and warrants that it will not use
workstations or field panels that constitute parts of its automation
control for electronic storage of any Personally Identifiable
Information. For the purposes of these Terms and Conditions,
“Personally Identifiable Information” means any personal information
that relates to, describes, or is capable of being associated with, a
particular individual. By way of example and not of limitation,
Personally Identifiable Information includes an individual’s first name
or first initial and last name, plus one or more of the following: social
security number, health insurance identification number, medical
DocuSign Envelope ID: 15027EFD-227A-4F40-AC0E-22DDC9A9A2B9
GENERAL TERMS AND CONDITIONS
(Solutions)
Siemens Industry, Inc., Building Technologies Division Solutions (v.5/15)
information, insurance policy number, passport number, taxpayer
identification number, account number, credit card number or any
other financial information.
4.6 SIEMENS HEREBY DISCLAIMS ANY AND ALL LIABILITY
FOR DAMAGES, INJURY OR LOSS ARISING OUT OF
DISCLOSURE OR DISSEMINATION OF PERSONALLY
IDENTIFIABLE INFORMATION THAT WAS STORED IN
VIOLATION OF PARAGRAPH 4.5 OF THIS ARTICLE,
4.7 To the extent permitted by law, Customer shall indemnify,
defend and hold Siemens harmless from any claims, losses or
damages arising out of disclosure or dissemination of Personally
Identifiable Information that was stored in violation of paragraph 4.5
of this Article.
Article 5: Compensation
5.1 Siemens shall be compensated for the Work at its prevailing
rates and reimbursed for costs and expenses (plus reasonable profit
and overhead) incurred in its performance of the Work. All other
work, including but not limited to the following, shall be separately
billed or surcharged on a time and materials basis: (a) emergency
work performed at Customer’s request, if inspection does not reveal
any deficiency covered by the Agreement; (b) work performed other
than during Siemens' normal working hours; and, (c) work
performed on equipment not covered by the Agreement.
5.2 Siemens may invoice Customer on a monthly or other progress
billing basis. Invoices are due and payable upon receipt or as
otherwise set forth in the Agreement. If any payment is not received
when due, Siemens may deem Customer to be in breach hereof
and may enforce any remedies available to it hereunder or at law,
including without limitation, acceleration of payments and
suspension or termination of the Work at any time and without notice
and shall be entitled to compensation for the Work previously
performed and for costs reasonably incurred in connection with the
suspension or termination. In the event any payment due hereunder
is not made when due, the Customer agrees to pay, on demand, as
a late charge, one and one-half percent (1.5%) of the amount of the
payment per month, limited by the maximum rate permitted by law,
of each overdue amount (including accelerated balances) under the
Agreement, Customer shall reimburse Siemens for Siemens' costs
and expenses (including reasonable attorneys' and witnesses' fees)
incurred for collection under this Agreement. In the event of a
dispute by Customer regarding any portion or all of an invoiced
amount, it shall notify Siemens in writing of the amount in dispute
and the reason for its disagreement within 21 days of receipt of the
invoice, the undisputed portion shall be paid when due, and interest
on the disputed, unpaid portion shall accrue as aforesaid, from the
date due until the date of payment, to the extent that such amounts
are finally determined to be payable to Siemens.
5.3 Except to the extent expressly agreed in writing, Siemens' fees
do not include any taxes, excises, fees, duties or other government
charges related to the Work, and Customer shall pay such amounts
or reimburse Siemens for any amounts it pays. If Customer claims a
tax exemption or direct payment permit, it shall provide Siemens with
a valid exemption certificate or permit and indemnify, defend and
hold Siemens harmless from any taxes, costs and penalties arising
out of same.
Article 6: Changes; Delays; Excused Performance
6.1 As the Work is performed, conditions may change or
circumstances outside Siemens’ reasonable control (such as
changes of law) may develop which require Siemens to expend
additional costs, effort or time to complete the Work, in which case
Siemens shall notify Customer and an equitable adjustment made to
the compensation and time for performance. In the event conditions
or circumstances require the Work to be suspended or terminated,
Siemens shall be compensated for the Work performed and for costs
reasonable incurred in connection with the suspension or
termination.
6.2 Siemens shall not be responsible for loss, delay, injury, damage
or failure of performance that may be caused by circumstances
beyond its control, including but not limited to acts or omissions by
Customer or its employees, agents or contractors, Acts of God, war,
terrorism, civil commotion, acts or omissions of government
authorities, fire, theft, corrosion, flood, water damage, lightning,
freeze-ups, computer viruses, program or system hackers, strikes,
lockouts, differences with workmen, riots, explosions, quarantine
restrictions, delays in transportation, or shortage of vehicles, fuel,
labor or materials. In the event of any such circumstances, Siemens
shall be excused from performance of the Work and the time for
performance shall be extended by a period equal to the time lost plus
a reasonable recovery period and the compensation equitably
adjusted to compensate for additional costs Siemens incurs due to
such circumstances
Article 7: Warranty; Disclaimers; Insurance; Allocation of Risk
7.1 (a) Until one year from either the date the Equipment is
installed or the date of first beneficial use, whichever first occurs, all
Equipment manufactured by Siemens or bearing its nameplate will
be free from defects in material and workmanship arising from
normal use and service.
(b) Labor for all Work under this Agreement is warranted to be free
from defects for one year after the earlier of the date the Work is
substantially completed or the date of first beneficial use.
(c) To the extent that Software is a Deliverable as part of the Work
for use in the Equipment or in a computer owned by the Customer,
Customer agrees to take delivery of any such Software subject to (i)
any applicable Siemens or third party end-user license agreement
(“EULA”) accompanying such Software, or (ii), if no EULA
accompanies such Software, the EULA posted at
www.usa.siemens.com/btcpseula (Siemens’ EULA web site) for
such Software used in or with the Equipment identified by product
model or part number on the Siemens EULA web site. Such
Software shall be warranted in accordance with its applicable EULA
unless an exception is explicitly identified in the Document under
this Agreement. For all other Equipment, Siemens hereby assigns
to Customer, without recourse, any and all assignable warranties
available from any manufacturer or supplier of such Equipment and
such Software and will assist Customer in enforcement of such
assigned warranties.
7.2 (a) The limited warranties set forth in Section 7.1 will be void as
to, and shall not apply to, any Work, Equipment or Software (i)
repaired, altered or improperly installed by any person other than
Siemens or its authorized representative; (ii) Equipment subjected
to unreasonable or improper use or storage, used beyond rated
conditions, operated other than per Siemens' or the manufacturer's
instructions, or otherwise subjected to improper maintenance,
negligence or accident; (iii) damaged because of any use of the
Work after Customer has, or should have, knowledge of any defect
in the Work; or (iv) Equipment not manufactured, fabricated and
assembled by Siemens or not bearing Siemens' nameplate.
However, Siemens assigns to Customer, without recourse, any and
all assignable warranties available from any manufacturer, supplier,
or subcontractor of such Equipment and will assist Customer in
enforcement of such assigned warranties.
(b) Any claim under the limited warranty granted above must be
made in writing to Siemens within thirty (30) days after discovery of
the claimed defect unless discovered directly by Siemens. Such
limited warranty only extends to Customer and not to any
subsequent owner of the Equipment. Customer’s sole and
exclusive remedy for any Work not conforming with this limited
warranty is limited to, at Siemens’ option, (i) repair or replacement of
defective components of covered Equipment, or (ii) reperformance
of the defective portion of the Work
(c) Siemens shall not be required to repair or replace more than
the component(s) of the Equipment actually found to be defective.
Siemens' warranty liability shall not exceed the purchase price of
such component(s) Repaired or replaced Equipment will be
warranted hereunder only for the remaining portion of the original
warranty period.
7.3 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE
ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES,
STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY
OR WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES
AGAINST THIRD PARTY INTELLECTUAL PROPERTY (“IP”)
INFRINGEMENTS (INCLUDING PATENT, COPYRIGHT AND
OTHER REGISTERED OR UNREGISTERED THIRD PARTY IP
RIGHTS) OR DEFECTS, WHETHER HIDDEN OR APPARENT,
AND EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO
COMPLIANCE OF THE EQUIPMENT AND DELIVERABLES WITH
DocuSign Envelope ID: 15027EFD-227A-4F40-AC0E-22DDC9A9A2B9
GENERAL TERMS AND CONDITIONS
(Solutions)
Siemens Industry, Inc., Building Technologies Division Solutions (v.5/15)
THE REQUIREMENTS OF ANY LAW, REGULATION,
SPECIFICATION OR CONTRACT RELATIVE THERETO, WHICH
ARE HEREBY EXPRESSLY DISCLAIMED. SIEMENS MAKES NO
WARRANTY, EXPRESS OR IMPLIED, THAT ANY EQUIPMENT
PROVIDED HEREUNDER WILL PREVENT ANY LOSS, OR WILL
IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS
INSTALLED OR INTENDED. The limited express warranties and
representation set forth in this Agreement may only be modified or
supplemented in a writing signed by a duly authorized signatory of
Siemens.
7.4 Siemens shall maintain the following insurance while performing
the Work:
Workers' Compensation Statutory
Employers' Liability $1,000,000 each accident
Commercial General $1,000,000 per occurrence and
Liability $5,000,000 in the aggregate
Automobile Liability $1,000,000 per occurrence/aggregate
7.5 Risk of loss of materials and Equipment furnished by Siemens
shall pass to Customer upon delivery to Customer’s premises, and
Customer shall be responsible for protecting and insuring them
against theft and damage.
7.6 WITH RESPECT TO ANY LIABILITY (WARRANTY OR
OTHERWISE) THAT SIEMENS MAY HAVE UNDER THIS
AGREEMENT, IN NO EVENT SHALL SIEMENS BE LIABLE
(INCLUDING WITHOUT LIMITATION, UNDER ANY THEORY IN
TORTS) FOR ANY LOSS OF USE, REVENUE, ANTICIPATED
PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION LOST PROFITS AND/OR LOST BUSINESS
OPPORTUNITIES) ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR THE WORK WHETHER ARISING IN
WARRANTY, TORT, CONTRACT , STRICT LIABILITY, OR ANY
OTHER THEORY OF LIABILITY, WHETHER, FOR WARRANTY,
LATE OR NON-DELIVERY OF ANY WORK, AND WHETHER
SIEMENS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. Siemens reserves the right to control the defense and
settlement of any claim for which Siemens has an obligation to
indemnify hereunder.
7.7 It is understood and agreed by and between the parties that
Siemens is not an insurer and this Agreement is not intended to be
an insurance policy or a substitute for an insurance policy. Pricing
for the Work is based solely upon the value of the Work provided
hereunder, and are unrelated to the value of Customer’s property
or the property of others on Customer’s premises. Accordingly,
Siemens’ aggregate liability for any and all claims, losses or
expenses (including attorneys fees) arising out of this Agreement,
or out of any Work or goods furnished under this Agreement,
whether based in contract, negligence, strict liability, agency,
warranty, trespass, indemnity or any other theory of liability, shall
be limited to the lesser of $1,000,000 or the total compensation
received by Siemens from Customer under this Agreement;
EXCEPT FOR SUCH CLAIMS, LOSSES OR EXPENSES
ARISING FROM, OR CAUSED BY, THE FAILURE OF A
SIEMENS INSTALLED FLS SYSTEM TO OPERATE PROPERLY.
IN SUCH EVENT, CUSTOMER’S SOLE REMEDY FOR A
DEFECTIVE NON-CONFORMING FLS SYSTEM PROVIDED
HEREUNDER SHALL BE IN ACCORDANCE WITH THE
WARRANTY TERMS CONTAINED HEREIN.
7.8 The parties acknowledge that the price which Siemens has
agreed to perform its Work and obligations under this Agreement is
calculated based upon the foregoing limitations of liability, and that
Siemens has expressly relied on, and would not have entered into
this Agreement but for such limitations of liability.
Article 8: Hazardous Materials Provisions
8.1 The Work does not include directly or indirectly performing or
arranging for the detection, monitoring, handling, storage, removal,
transportation, disposal or treatment of Oil or Hazardous Materials.
Except as disclosed pursuant to Section 8.3, Customer represents
that there is no asbestos or any other hazardous or toxic materials,
as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the
regulations promulgated thereunder, and other applicable federal,
state or local law ("Hazardous Materials"), present at Customer’s
locations where Work is performed. Siemens will notify Customer
immediately if it discovers or suspects the presence of any
Hazardous Material. All Work has been priced and agreed to by
Siemens in reliance on Customer’s representations as set forth in
this Section 8.1. The presence of Hazardous Materials constitutes a
change in the Proposed Solution equivalent to a change order
whose terms must be agreed to by Siemens before its obligations
hereunder will continue.
8.2 Customer shall be solely responsible for testing, abating,
encapsulating, removing, remedying or neutralizing such Hazardous
Materials, and for the costs thereof. Even if an appropriate change
order has been entered into pursuant to Section 8.1 above,
Siemens will continue to have the right to stop the Work until the job
site is free from Hazardous Materials. In such event, Siemens will
receive an equitable extension of time to complete its Work, and
compensation for delays caused by Hazardous Materials
remediation. In no event shall Siemens be required or construed to
take title, ownership or responsibility for such Oil or Hazardous
Materials. Customer shall sign any required waste manifests in
conformance with all government regulations, listing Customer as the
generator of the waste.
8.3 Customer warrants that, prior to the execution of the Agreement,
it has notified Siemens in writing of any and all Hazardous Materials
present, potentially present or likely to become present at
Customer’s locations and has provided a copy of any jobsite safety
policies, including but not limited to lock-out and tag procedures,
laboratory procedures, chemical hygiene plan, material safety data
sheets or other items covered or required to be disclosed or
maintained by federal, state, or local laws, regulations or
ordinances.
8.4 For separate consideration of $10 and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledge, Customer shall indemnify, defend and hold Siemens
harmless from and against any damages, losses, costs, liabilities or
expenses (including attorneys’ fees) arising out of any Oil or
Hazardous Materials or from Customer’s breach of, or failure to
perform its obligations under, Sections 8.1, 8.2 or 8.3.
Article 9: Import / Export Indemnity
9.1 Customer acknowledges that Siemens is required to comply
with applicable export laws and regulations relating to the sale,
exportation, transfer, assignment, disposal and usage of the Work
or Equipment or services provided under the Contract, including
any export license requirements. Customer agrees that such
Work or Equipment or Software shall not at any time directly or
indirectly be used, exported, sold, transferred, assigned or
otherwise disposed of in a manner which will result in non-
compliance with such applicable export laws and regulations. It
shall be a condition of the continuing performance by Siemens of
its obligations hereunder that compliance with such export laws
and regulations be maintained at all times. CUSTOMER AGREES
TO INDEMNIFY AND HOLD SIEMENS HARMLESS FROM ANY
AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND
FINES RELATED TO NON-COMPLIANCE WITH APPLICABLE
EXPORT LAWS AND REGULATIONS.
Article 10: Small Business Concern
SIEMENS shall adhere to FAR 52.219-8 regarding the “Utilization
of Small Business Concerns”, as part of its Commercial Small
Business Subcontracting Agreement with the federal government.
SIEMENS’ policy is to offer small business concerns, including
small disadvantaged businesses, women owned small-
businesses, HUBZone small businesses, veteran owned small
businesses and service disabled veteran owned small businesses,
the “maximum practical opportunity” to participate in performing
contracts let by any commercial entity, local government or federal
agency, including subcontracts for subsystems, assemblies,
components, and related services for major systems.
DocuSign Envelope ID: 15027EFD-227A-4F40-AC0E-22DDC9A9A2B9
DocuSign Envelope ID: 15027EFD-227A-4F40-ACOE-22DDC9A9A2B9
HATE(MMIDDIYYYY)
ACVR" CERTIFICATE OF LIABILITY INSURANCE p9l1g 18
4- �-
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT 13ETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on
this certificate does not confer rights to the certificate holder in lieu of such endorsement{s).
PRODUCER CONTACT
MARSH USA,INC. NAME:
PRONE
445SOUTH STREET FAX o
MORRISTOWN,NJ 07960-6454 EMAIL
ADDRESS:
_ INSURE%S AFFORDING COVERAGE NAIC 4
100129-SBT--18119 228 Rentas NOC60 INSURER A:HDI Global Insurance Company 41343
INSURED INSURER R:Travelers Pr Casualty Co.of America 25674
SIEMENS INDUSTRY,INC.
BUILDING TECHNOLOGIES INSURERS:The Travelers Indemnity Co an 25658
1000 DEERFIELD PARKWAY INSURER D
BUFFALO GROVE,IL 60089
INSURER E:
INSURER F:
COVERAGES CERTIFICATE NUMBER: NYC-009196547-11 REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE; FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES-LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
TYPE OF INSURANCE ADDL SUPOLICY EFF POLICY EXP
LTR D POLICY NUMBER MMIDDIYYYY1 (MMIDDIYYYYI LIMITS
A X COMMERCIAL GENERAL LIABILITY GLD11101-i0 1010112018 1010112019 EACH OCCURRENCE S 1,000,000
DA GE TO RENTER
CLAIMS-MAOE I X J OCCUR PREMISES Ea9c% enoe $ 1,000,000
-- - MED E]P[AM— ersan $ 100,000
PERSONAL s ADV INJURY $ 1,000,000
GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 10,000,000
X POLICY❑IE° LOC PRODUCTS-COMPIOPAGG $ INCL
OTHER: $
B AUTOMOBILE LIABILITY TC2J-CAP-7440L34A-18 10/0112018 10/01/2019 CEe accOMBINED SINGLE LIMITidenl $ 2,000,000
_
X ANY AUTO BODILY INJURY(Per person) $ NIA
X OWNED SCHEDULED BODILY INJURY(Per accident) $ ITA
AUTOS ONLY AUTOS _
X HIRED x NON-OWNED PROPERTY DAMAGE $ --NIA
AUTOS ONLY AUTOS ONLY sccidenl
UMBRELLA LIAR OCCUR I EACH OCCURRENCE $
EXCESS LIAR CLAIMS-MADE AGGREGATE $
DEp I I RETENTION S $
B WORRERSCOMPENSATION TC2J-UB-8049X508.18(ADS) 1010112018 I0112019 X STA U E ERH _
C AND EMPLOYERS'LIABILITY YIN TRK-UB-8049X51A-18{AZ,MA,OR,WI} 101OW018 10MI2019 -- -
ANYPROPRIETORIPARTNERIEXECUTIVE E-L-EACH ACCIDENT $ 1,000,000
B OFFICE ERE](CLUDED7 NIA TWXJ-UB-744OL338.18 OH&WA 118 10101/2019
(Mandalury wy in in NH) � � 0101I20 E.L-DISEASE-EA EMPLOYEE $ 1,000,000
II yes,describe under "'°"'$500K LIMIT I$500K SIR—,, 1,000,000
DESCRIPTION OF OPERATIONS below E-L-DISEASE-POLICY LIMIT $
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES IACORD 101,AddillataI Remarks Schedule,in ay be attached I more space Is requl red I
RE:JOB NO.NIA
SEE ATTACHED
CERTIFICATE HOLDER CANCELLATION
COUNTY OF ORANGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
ASSET MANAGEMENT SERVICES THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
640 NO HIGHWAY 86 N ACCORDANCE WITH THE POLICY PROVISIONS.
HILLSBOROUGH,NO 27278
AUTHORIZED REPRESENTATIVE
of Marsh USA Inc.
Manashi Mukherjee --NNko,%A-o at
C 1988-2016 ACORD CORPORATION. All rights reserved.
ACORD 25(20 6103) The ACORD name and logo are registered marks of ACORD