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HomeMy WebLinkAboutVaisala, Inc./STREET/$48,900/Subscription ServicesCzTfshfzHsfdivlijobu3;26qn-Bvh16-3135 Vaisala, Inc. Street Department - 2024 Appropriation #2201-43-509.00 Motor Vehicle Highway Fund; P.O. #111383 Contract Not To Exceed $48,900.00 6. DISCLOSURE AND WARNINGS: If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of all chemicals, materials, substances and items used in or during the provision of the Goods and Services provided hereunder, including the quantity, quality and concentration thereof and any other information relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to furnish to City sufficient written warning and notice (including appropriate labels on containers and packing) of any hazardous material utilized in or that is a part of the Goods and Services. 7. LIENS: Vendor shall not cause or permit the filing of any lien on any of City’s property. In the event any such lien is filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding, City shall have the right to pay such lien or obtain such bond, all at Vendor’s sole cost and expense. 8. DEFAULT: In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including Vendor’s warranties; (b) fails to provide the Goods and Services as specified herein; (c) fails to make progress so as to endanger timely and proper provision of the Goods and Services and does not correct such failure or breach within five (5) business days (or such shorter period of time as is commercially reasonable under the circumstances) after receipt of notice from City specifying such failure or breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to (1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights and remedies available to City at law and/or in equity. 9. INSURANCE AND INDEMNIFICATION: Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and Vendor from all claims for damages under any workers’ compensation, occupational disease and/or unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness, disease or death of or to any of Vendor’s agents, officers, employees, contractors and subcontractors; and, for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide City, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be canceled without thirty (30) days prior notice to City. Vendor shall indemnify and hold harmless City from and against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and/or damages to any person or property arising from or in connection with Vendor’s provision of Goods and Services pursuant to or under this Agreement or Vendor’s use of City property. Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney fees, and other expenses, caused by any act or omission of Vendor and/or of any of Vendor’s agents, officers, employees, contractors or subcontractors in the performance of this Agreement. These indemnification obligations shall survive the termination of this Agreement. 10. LIMITATION OF LIABILITY: Except in the case of gross negligence, willful misconduct or fraud, Vendor’s maximum liability to the City, and the City’s maximum liability to Vendor shall not exceed the price of the Product(s) or Service(s) causing any such liability. Neither party will be liable to the other for any indirect losses, such as loss of profit or goodwill, 2 Vaisala, Inc. Street Department - 2024 Appropriation #2201-43-509.00 Motor Vehicle Highway Fund; P.O. #111383 Contract Not To Exceed $48,900.00 or costs of cover purchase, even if such loss was reasonably foreseeable. Nothing in this Section 10 is intended to affect either party’s rights which cannot be limited or excluded on the applicable law. 11. GOVERNMENT COMPLIANCE: Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes which may be applicable to Vendor’s performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless City from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules, regulations and codes. This indemnification obligation shall survive the termination of this Agreement. 12. NONDISCRIMINATION: Vendor represents and warrants that it and all of its officers, employees, agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against any employee, applicant for employment or other person in the provision of any Goods and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status. 13. E-VERIFY: Pursuant to I.C. § 22-5-1.7 et seq., as the same may be amended from time to time, and as is incorporated herein by this reference (the “Indiana E-Verify Law”), Vendor is required to enroll in and verify the work eligibility status of its newly-hired employees using the E-Verify program, and to execute the Affidavit attached herein as Exhibit D, affirming that it is enrolled and participating in the E-Verify program and does not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City with documentation indicating that it has enrolled and is participating in the E-Verify program. Should Vendor subcontract for the performance of any work under and pursuant to this Agreement, it shall fully comply with the Indiana E- Verify Law as regards each such subcontractor. Should the Vendor or any subcontractor violate the Indiana E-Verify law, the City may require a cure of such violation and thereafter, if no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or those set forth in the Indiana E- Verify Law. The requirements of this paragraph shall not apply should the E-Verify program cease to exist. 14. NO IMPLIED WAIVER: The failure of either party to require performance by the other of any provision of this Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof. 15. NON-ASSIGNMENT: Either party shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not delegate its obligations under this Agreement without the opposing party’s prior written consent. 16. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price set forth herein shall be the full and maximum compensation and monies required of City to be paid to Vendor under or pursuant to this Agreement. 3 Vaisala, Inc. Street Department - 2024 Appropriation #2201-43-509.00 Motor Vehicle Highway Fund; P.O. #111383 Contract Not To Exceed $48,900.00 17. GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. 18. SEVERABILITY: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 19. NOTICE: Any notice provided for in this Agreement will be sufficient if itis in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: If to City: City of Carmel AND City of Carmel Street Department Office of Corporation Counsel st3400W131 Street One Civic Square Carmel, Indiana 46074 Carmel, Indiana 46032 If to Vendor: Vaisala, Inc. PO Box 2713 Carol Stream, IL 60132 Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. 20. TERMINATION: 20.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to Vendor, immediately terminate this Agreement for cause, in the event of a default hereunder by Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be provided hereunder. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount representing conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. In the event sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be provided hereunder, City shall notify Vendor as soon as reasonably possible. 20.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount of conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 20.3 The City may terminate this Agreement pursuant to Paragraph 11 hereof, as appropriate. 4 Vaisala, Inc. Street Department - 2024 Appropriation #2201-43-509.00 Motor Vehicle Highway Fund; P.O. #111383 Contract Not To Exceed $48,900.00 21. FORCE MAJEURE Neither party shall be liable for delay in delivery or other failure to duly fulfill its obligations (except for your payment obligations) due to a Force Majeure event. Force Majeure events are events beyond the commercially reasonable control of the affected party and may include events affecting suppliers and subcontractors. The party affected by a Force Majeure event shall notify the other party in writing as soon as reasonable. Each party shall be entitled to terminate the Contract by notice in writing if performance of the Contract is suspended under this Section 21 for more than six (6) months. 22. REPRESENTATIONS AND WARRANTIES The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. 23. ADDITIONAL GOODS AND SERVICES Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods and services to City. When City desires additional goods and services from Vendor, the City shall notify Vendor of such additional goods and services desired, as well as the time frame in which same are to be provided. Only after City has approved Vendor’s time and cost estimate for the provision of such additional goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in writing, to provide such additional goods and services, shall such goods and services be provided by Vendor to City. A copy of the City’s authorization documents for the purchase of additional goods and services shall be numbered and attached hereto in the order in which they are approved by City. 24. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19 hereinabove, this Agreement shall be in effect from the Effective Date through the satisfactory completion of services and/or delivery and acceptance of goods contracted for herein. 25. HEADINGS All heading and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 26. BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations set forth in Agreement. 27. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than City and Vendor. 28. DEBARMENT AND SUSPENSION 28.1 The Vendor certifies by entering into this Agreement that neither it nor its principals nor any of its subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from entering into this Agreement by any federal agency or by any department, agency or political subdivision of the State of Indiana. The term “principal” for purposes of this Agreement means an officer, director, owner, partner, key employee or other person with primary management or supervisory responsibilities, or a person who has a critical influence on or substantive control over the operations of the Vendor. 5 Vaisala, Inc. Street Department - 2024 Appropriation #2201-43-509.00 Motor Vehicle Highway Fund; P.O. #111383 Contract Not To Exceed $48,900.00 28.2 The Vendor certifies that it has verified the state and federal suspension and debarment status for all subcontractors receiving funds under this Agreement and shall be solely responsible for any recoupment, penalties or costs that might arise from use of a suspended or debarred subcontractor. The Vendor shall immediately notify the City if any subcontractor becomes debarred or suspended, and shall, at the City’s request, take all steps required by the City to terminate its contractual relationship with the subcontractor for work to be performed under this Agreement. 29. IRAN CERTIFICATION Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this Agreement, it does not engage in investment activities within the Country of Iran. 30. ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 31. ENTIRE AGREEMENT: This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. Notwithstanding any other term or condition set forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit attached to this Agreement or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. 6 Wx Horizon: The easiest way to make data-driven winter maintenance decisions Quotation #: CARM202401 5/17/2024 Anticipated contract start date: Jul1, 2024 Term: 3years WxHorizon Edition: Pro Network Size (Premium and above only): Notapplicable Vaisala Customer City ofCarmel, IN Primary Contact: James Rundle, Supervisor Street Department Billing Contact Shipping Contact Name Name Email Email Address Address Proposed Solutions Product Quantity Annual Unit Annual Price Price Extended GroundCast 9 $1,600 $14, 400 TempCast 1 $1,900 $1, 900 Road Weather Forecast 5 $0 $ 0 Points Network Forecasting 0 Annual Subtotal $16, 300 Total Contract Price $48, 900Be proactiveandharnessthepowerof turning observationsand forecastsinto insightsand action, including peace of mind integrated alert notifications. AssumptionsandStipulations 1. Quote is validfor30days fromissuance 2. Installation materials including Fabick epoxy forGroundCast andatelescopic pole forTempCast areincluded 3. Subject toVaisala General Conditions ofSubscription Services (link) and Service description for Cast sensors with WxHorizon Pro (below): https://www.vaisala.com/en/vaisala-policies 4. WxHorizon & Cast sensor annual price is based ona3-year term subscription commitment. Shorter terms may beconsidered atahigher priceand canbequoted uponrequest 5. Excludes installation 6. 7. Customer isresponsible forutility locates atdesired Ground Castinstallation locations 8. Cellular NBIOT coverage should beavailable wherever Verizonhasservice butmust beconfirmed ateach location prior toinstallation 9. Sensors with updated firmware willbe available in June of2024 10. Invoice frequency canbetailored toquarterly, semi-annual, orannual intervals with thedefault being annual billing Servicedescription VaisalaCast SensorswithWxHorizonPro Vaisala Cast Sensors complement the Vaisala Wx Horizon Pro weather hazard information system with accurate observations from critical locations. With a single Wx Horizon Pro subscription with predictable costs and continuous warranty, users can access both in-situ observations and road weather point forecasts from sensor locations. The Cast Sensors wirelessly collect environmental data from key locations and provide this for Wx Horizon to generate actionable information to help plan road winter maintenance operations. 1. Features Vaisala Wx Horizon Pro weather hazard information system for road condition situational awareness Leverages Vaisala industry-leading sensors and world-class forecasting capabilities Provides road weather condition forecasts using Vaisala proprietary road weather model Provides access to data through aweb user interface optimized for providing support for winter maintenance decisions, and through a REST API Vaisala Cast Sensors Utilize Vaisala leading technology to measure key environmental parameters Wirelessly connect to Vaisala cloud Are fully autonomous with built-in power and communication Have minimum 3-year battery lifetime with no maintenance needs Vaisala Cast Connect mobile application for sensor activation Is available free of charge from Google Play Store and vaisala.com Intuitively guides the user through the sensor activation process Ensures adequate cellular field strength at the installation location 2. Communication Cast Sensors are delivered together with a SIM-card for 24/7 connectivity Connectivity is subject to activating the sensors using the Cast Connect mobile application to ensure adequate cellular field strength at installation location Cellular communication costs are included in the subscription fee Data availability is subject to the availability of cellular service Note: choosing a location with good cellular field strength will increase the battery lifetime of the sensors and make replacement need less frequent. The Cast Connect mobile application will assist by providing a visual indication of field strength before the activation. 3. Data license, access, and security Vaisala grants the customer anon-exclusive license to use the sensor and the forecast data during the contract term for internal business purposes. Amore complete description of the legal terms and conditions governing the subscription service is in the General Conditions of Subscription Services of Vaisala Group: https://www.vaisala.com/sites/default/files/documents/DOC250754-A-General-Conditions-of- Subscription-Services.pdf. A 3-year history dataset is stored at Vaisala and is available for the customer through the user interface and API. The API is a cloud-hosted REST API deployed to multiple service regions for performance and resilience. Data security is ensured in all parts of the data chain: Public key infrastructure (PKI) is used for managing device certificates TLS/DTLS secure protocols are used for data transmission Security audited SW components are used in cloud system software 4. Sensor shipping, installation, and replacement Upon reception and confirmation of a subscription order, Vaisala will ship the Cast Sensor hardware to the customer. The sensor will remain the property of Vaisala. The customer isresponsible for installing the sensor according to the instructions and using the tools provided by Vaisala. Vaisala has no responsibility for incorrectly installed sensors and the effects thereof. The customer is responsible for ensuring that all laws and local regulations related to safety, environmental compliance, road closures, and site installation procedures are followed. Vaisala will monitor the sensors 24/7/365 and will proceed to ship replacement sensors in case of data loss due to non-functional sensor hardware, for example loss of battery power. Before shipping a replacement unit, Vaisala will contact the customer for a confirmation. Replacements included in the subscription fee only apply to sensors with no physical damage beyond normal wear and tear. In the event there is physical damage, a fee may apply for the sensor replacement. De-installation of old sensors and installation of replacement sensors are not included in the subscription fee. Please contact Vaisala sales to discuss and get a quote for the installation work. The customer is responsible for the removal of sensors after their lifetime and recycling them according to local regulations and instructions provided by Vaisala. Failing to do this, the customer accepts full liability for any environmental or hazard-related issues. The customer will also have an option to ship the sensors at their own cost to Vaisala for recycling. 5. Invoicing The invoicing period for the Wx Horizon Pro subscriptions is 12 months, unless otherwise specified in purchase documentation. Invoicing period starts 30 days after the shipment of the Vaisala Cast Sensors associated with the subscription. 6. Technical support Vaisala support team is available 365 days a year to receive service requests through MyVaisala support channel. See the local contact details at www.vaisala.com/en/support. The official language of the technical support is English. 7. Service availability Vaisala strives to keep the service available 24/7, excluding necessary maintenance breaks or downtime caused by interruptions in services beyond Vaisala control, such as cloud or cellular service provider. For a more complete description, refer to the General Conditions of Subscription Services of Vaisala Group. 8. Maintenance and service breaks We generally provide scheduled maintenance and updates of the Wx Horizon service without breaks to service availability or data measurement collected from Vaisala products. If maintenance or updates cannot be carried out without a break to the service availability, we will notify customer of such breaks through email and/or the Wx Horizon service itself. In case there are unexpected service breaks, we shall within normal office hours attempt to recover the service as soon as possible. 9. Summary ofresponsibilities Vaisala responsibility Delivers sensor units upon start ofthe Adopts and pays periodic subscription fees, subscription and incase ofdata lossdue to inaccordance with theapplicable terms faulty sensor hardware and conditions Provides aSIM card andcellular data Installs sensors based oninstructions and communication toolsprovided byVaisala, observing laws and localregulationsProvidesanaccountandcredentialsfor cloudhosted WxHorizon software, with the Removes and recycles sensors according WxHorizon Profeature set tolocal regulations Monitors sensors and proactively reacts to data interruptions Provides observation and point forecast data forsensor locations through anAPI andon theWxHorizon cloud user interface EXHIBIT B Invoice Date: Name of Company: Address & Zip: Telephone No.: Fax No.: Project Name: Invoice No. Purchase Order No: Goods Services Person Providing Goods/Services Date Goods/ Service Provided Goods/Services Provided Describe each good/service separately and in detail) Cost Per Item Hourly Rate/ Hours Worked Total GRAND TOTAL Signature Printed Name EXHIBIT C INSURANCE COVERAGES Worker’s Compensation & Disability Statutory Limits Employer’s Liability: Bodily Injury by Accident/Disease: $100,000 each employee Bodily Injury by Accident/Disease: $250,000 each accident Bodily Injury by Accident/Disease: $500,000 policy limit Property damage, contractual liability, products-completed operations: General Aggregate Limit (other than Products/Completed Operations): $500,000 Products/Completed Operations: $500,000 Personal & Advertising Injury Policy Limit: $500,000 Each Occurrence Limit: $250,000 Fire Damage (any one fire): $250,000 Medical Expense Limit (any one person): $ 50,000 Comprehensive Auto Liability (owned, hired and non-owned) Bodily Single Limit: $500,000 each accident Injury and property damage: $500,000 each accident Policy Limit: $500,000 Umbrella Excess Liability Each occurrence and aggregate: $500,000 Maximum deductible: $ 10,000 Andrew Jamison Vaisala Inc. Associate Corporate Counsel 31st July 24 Andrew Jamison Andrew Jamison Page 1 of 1INDIANARETAILTAXEXEMPT CERTIFICATE NO. 003120155 0020PURCHASE ORDER NUMBERCityofCarmel FEDERAL EXCISE TAXEXEMPT 111383 35-6000972 THIS NUMBER MUST APPEAR ON INVOICES, A/PONECIVICSQUARE VOUCHER, DELIVERY MEMO, PACKING SLIPS, CARMEL, INDIANA 46032-2584 SHIPPING LABELS AND ANY CORRESPONDENCE FORM APPROVED BYSTATE BOARD OFACCOUNTS FOR CITY OFCARMEL - 1997 PURCHASE ORDER DATE DATE REQUIRED REQUISITION NO. VENDOR NO. DESCRIPTION 7/2/2024377892 VAISALA INC Street Department VENDORSHIPPOBOX2713 3400 W. 131st Street TO Carmel, IN 46074- CAROL STREAM, IL 60132 - Matt Higginbotham(317) 733-2001 PURCHASE ID BLANKET CONTRACT PAYMENT TERMS FREIGHT 88601 QUANTITYUNIT OF MEASUREDESCRIPTIONUNIT PRICEEXTENSION Department:Fund: 22012201Motor Vehicle Highway FND Account: 43-509.00 1EachSubscription Services$48,900.00$48,900.00 Sub Total 48,900.00 Send Invoice To: Street Department 3400 W. 131st Street Carmel, IN 46074- 317) 733-2001 PLEASE INVOICE INDUPLICATE DEPARTMENTACCOUNTPROJECTPROJECT ACCOUNTAMOUNT 48,900.00PAYMENT A/P VOUCHER CANNOT BE APPROVED FOR PAYMENT UNLESS THE P.O. NUMBER IS MADE ASHIPPINGINSTRUCTIONSPARTOFTHEVOUCHERANDEVERYINVOICEANDVOUCHERHASTHEPROPERSWORN SHIP PREPAID. AFFIDAVIT ATTACHED. I HEREBY CERTIFY THAT THERE IS AN UNOBLIGATED BALANCE IN C.O.D. SHIPMENT CANNOT BE ACCEPTED.THIS APPROPRIATION SUFFICIENT TO PAY FOR THE ABOVE ORDER. PURCHASE ORDER NUMBER MUST APPEAR ON ALL SHIPPING LABEL THIS ORDER ISSUED IN COMPLIANCE WITH CHAPTER 99, ACTS 1945 ORDERED BYANDACTSAMENDATORYTHEREOFANDSUPPLEMENTTHERETO. LeeHigginbotham TITLECommissioner CONTROL NO. 111383 CONTROLLER