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Sensory Technologies/FAC Co C4- z.1 tom, o3 Sensory Technologies Maintenance Department 2009 APPROVED, Appropriation #1205- 435.00 P.O. #20168 e 0 Contract Not To Exceed $24,965.00 FORM Y: AGREEMENT FOR PURCHASE OF GOODS AND SERVICES THIS AGREEMENT FOR PURCHASE OF GOODS AND SERVICES "Agreement is hereby entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety "City and Sensory Technologies, an entity duly authorized to do business in the State of Indiana "Vendor"). TERMS AND CONDITIONS 1. ACKNOWLEDGMENT, ACCEPTANCE: Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of same constitutes its acceptance of all of the Agreement's terms and conditions. 2. PERFORMANCE: City agrees to purchase the goods and /or services (the "Goods and Services from Vendor using City budget appropriation number 1205 435.00 funds. Vendor agrees to provide the Goods and Services and to otherwise perform the requirements of this Agreement by applying at all times the highest technical and industry standards. 3. PRICE AND PAYMENT TERMS: 3.1 Vendor estimates that the total price for the Goods and Services to be provided to City hereunder shall be no more than Twenty Four Thousand Nine Hundred Sixty Five Dollars ($24,965.00) (the "Estimate Vendor shall submit an invoice to City no more than once every thirty (30) days detailing the Goods and Services provided to City within such time period. City shall pay Vendor for such Goods and Services within sixty (60) days after the date of City's receipt of Vendor's invoice detailing same, so long as and to the extent such Goods and Services are not disputed, are in accordance with the specifications set forth in Exhibit A, are submitted on an invoice that contains the information contained on attached Exhibit B, and Vendor has otherwise performed and satisfied all the terms and conditions of this Agreement. 3.2 Vendor agrees not to provide any Goods and Services to City that would cause the total cost of the Goods and Services provided by Vendor to City hereunder to exceed the Estimate, unless City has previously agreed, in writing, to pay an amount in excess thereof. 4. WARRANTY: Vendor expressly warrants that the Goods and Services covered by this Agreement will conform to those certain specifications, descriptions and /or quotations regarding same as were provided to Vendor by City and /or by Vendor to and accepted by City, all of which documents are incorporated herein by reference, and that the Goods and Services will be delivered in a timely, good and workmanlike manner and free from defect. Vendor acknowledges that it knows of City's intended use and expressly warrants that the Goods and Services provided to City pursuant to this Agreement have been selected by Vendor based upon City's stated use and are fit and sufficient for their particular purpose. Z:IE Bass\My Documudc\Prolussional Service ;\MAINTENANCE\2009\SENSORY TECHNOLOGIES Good, Services d :12/3 /2009 12 :08 PM] Sensory Technologies Maintenance Department 2009 Appropriation #1205- 435.00 P.O. #20168 Contract Not To Exceed $24,965.00 5. TIME AND PERFORMANCE: This Agreement shall become effective as of the last date on which a party hereto executes same "Effective Date and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the essence of this Agreement. 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. [Z:tE Bss\My Documu,ts\Pro4aionnl Suvice\MAMTENANCE2)O9'SENSORY TECHNOLOGIES Goods Sam", d2 12/1/2009 12 :OX PM] Sensory Technologies Maintenance Department 2009 Appropriation #1205- 435.00 P.O. #20168 Contract Not To Exceed $24,965.00 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. 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. 11. 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. 12. 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. 13. NON- ASSIGNMENT: Vendor 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 City's prior written consent. 14. 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. 15. 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. [Z:IE Bay, \My D, o,n ls\Profosional S v,. \MA1NTENANCE\2009\SENSORY TECHNOLOGIES Goods Savices .d :12 /3/2009 12 :08 PM] Sensory 'Technologies Maintenance Department 2009 Appropriation #1205- 435.00 P.O. #20168 Contract Not To Exceed $24,965.00 16. 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. 17. NOTICE: Any notice provided for in this Agreement will be sufficient if it is 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 One Civic Square Carmel, Indiana 46032 ATTN: Jeff Barnes AND Douglas C. Haney, City Attorney, Department of Law One Civic Square Carmel, Indiana 46032 If to Vendor: Sensory Technologies 6951 Corporate Circle Indianapolis, Indiana 46278 Telephone: E -Mail: ATTENTION: Notwithstanding the above, notice of termination under paragraph 18 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. 18. TERMINATION: 18.1 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. [Z:\E Bass\My Documcmis\Prof.sional St8vi8v3UMAINTENANCE \2009 \SENSOR} TECHNOLOGIES Goods Sermcps A4:12/3 /2009 12 :08 PM] Sensory Technologies Maintenance Department 2009 Appropriation #1205- 435.00 P.O. #20168 Contract Not To Exceed $24,965.00 18.2 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. 19. 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. 20. 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. 21. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 18 hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2009, and shall, on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, unless otherwise agreed by the parties hereto. 22. 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. 23. 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. 24. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than City and Vendor. 25. 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. [Z:\E Bass My Documents Profasional Services \MAINTENANCE\2009\SENSORY TECHNOLOGIES Goods Sr Swiccv.d5 12 /3/2009 12:(& PM} Sensory Technologies Maintenance Department 2009 Appropriation #1205- 435.00 P.O. #20168 Contract Not To Exceed $24,965.00 26. 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. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA SENSORY TECHNOLOGIES by and through its Board of Public Works and Safety B� By: d ames Brainard, •res'di .g Officer Authorized Signature/ Date: 6 76k, /s 1 Printed Name Mary An Burke, Member Date: ae..1 ,�7G Title Lori S.Watsu ember FID/TIN: ,d 1 1 1- 3 g 7 7 Date: I f 09 SSN if Sole Proprietor: ATTEST: Date: /,,21_,:y„29 /i /i 1 Diana Cordray, IAMC_Clerk- Treasurer Date: 7O--/(4- 6Q [Z:\E Bass\My Docummis\Professional Scavie ]e\MAINTENANCE'2009\SENSORY TECHNOLOGIES Goods Sm ices.dgc.:12 /3/2009 12 :OP PM] sensorytechnoOcog es A MARKEY'S VIDEO IMAGES COMPANY Project Agreement City of Carmel Audio Processing Upgrade Date: November 02, 2009 Prepared by: Andrea Mikels Project Number: 16745 Design Engineer: Larry Darling Contact Information Primary Contact: Jeff Barnes Phone Number: 317 571 -2448 Email Address: jbarnes @carmel.in.gov Project Address: 1 Civic Square City: Carmel State: IN Zip: 46032 Purpose of this Document The Functionality Statement will constitute an agreement of the services to be provided by Sensory Technologies. Elements, including equipment, labor, or logistical details not specifically addressed in this document will be considered changes and /or additions to the project, and may result in additional charges, timeline extensions, or both. Once installed, your system will be fully tested and commissioned by Sensory Technologies to ensure all equipment is working as designed. This document will reappear, acting as the commissioning checklist, verifying that both the Client and the Company agree that what was agreed to be installed in the functionality statement is, at point of commissioning, present and fully operational. Upon completion and acceptance of the fully functional system, we will provide instructive training to your staff regarding the use of each system. Contents Project Overview 4 Service Agreement 1A Functionality Statement 5 Terms and Conditions 1B Functionality Checklist 6 Agreement Acceptance 2 Customer Responsibilities 7 Attachments 3 Price and Payment Terms 0 sensorytechnologies A MARKEY'S VIDEO IMAGES COMPANY Project Overview: The City of Carmel needs to upgrade the audio processing system in the Council Chambers. The current system is not reliable and the output to the Cable TV Channel is low. Sensory Technologies will upgrade the system including a new audio processor, rewiring the rack and upgrading the control system to accommodate for the changes. IA. Functionality Statement iB. Functionality Checklist The below items comprise the Functionality Statement of this This Functionality Checklist will serve as the single document solution. Once the system's functionality is agreed upon, a for verification of all acceptance criteria and validation by signature and payment for equipment will be secured and work required signatories. will begin. Functionality Notes Check -off The current audio processing equipment will be replaced T j with new Biamp processors. r r The current audio inputs and outputs will be connected to the new processor. The system will be programmed, tested and commissioned. 1 t The control system touch panel in the rack room will be replaced with a new 12" wired table top touch panel system. The current processor will be utilized. The control system will be reprogrammed, tested and commissioned. t r The rack will be rewired so all cables are tie wrapped and labeled. New cabling will be provided as needed to rewire the rack. An AV Flow drawing will be provided to the Owner with corresponding cable information. Engineering, Project Management, Installation Labor, Installation Cabling, and Training are included with the system. r 1- Sensory Technologies QPA #10029 1- Checklist Sign -off A signature indicates the Functionality Checklist has been reviewed and the solution is completed, functional and approved. Client Technical Representative Date Printed Name and Title 55 61 I IT Sensory Representative Date "EXHIB /f 0 sensorytechnologies A MARKEY'S VIDEO IMAGES COMPANY 2. Customer Responsibilities The following items shall be provided by the Client and are not part of this agreement or proposal: All 120V electrical provisions (Specifications provided by S.T. after executed Agreement) All conduit and raceway as required by local code Conveyance (pathway) for AV cabling- includes any core drilling or structural modifications. (Specifications and call -outs provided by Sensory Technologies after executed Agreement) "Hard Points" for mounting of equipment: Sensory Technologies shall provide equipment specific mounting hardware to be attached to structural support provided by the Owner. When in doubt the Owner should contact a certified Structural Engineer for safety factors. Custom millwork, construction, or trim Required Local Permits and /or plan approvals Hazardous Material abatement Telephone and /or Data Network infrastructure Firewall configuration for videoconference traffic (S.T. to provide firewall configuration information) Modification or replacement of ceiling tiles and /or grid 3. Price and Payment Terms The price "Price for this Project is: 24,965.00 The above Price contains a service agreement. Please see Section 4: Service Agreement for details "EXHIBIT 0 sensorytechnologies A MARKEY'S VIDEO IMAGES COMPANY 4. Service Agreement This equipment will be covered under the current service agreement. 51, 9' I IT sensorytechnologies A MARKEY'S VIDEO IMAGES COMPANY 5. Terms and Conditions PURCHASE: The Company agrees to sell, and the Customer agrees to buy, the audio /visual equipment "Equipment the installation of such Equipment "Installation and /or the design, engineering and consultation related to such Equipment and Installation "Design (if any) described on the Proposal Sheet which is incorporated herein by referenced (described herein together as the "Project on the following terms and conditions. PROJECT SCHEDULE: Company estimates commencement of the Project within six (6) to eight (8) weeks from the receipt of the Equipment Payment. All work will take place during normal business hours (8 a.m. to 5 p.m., Monday through Friday) (unless requested by Customer, subject to overtime charges). The exact date of commencement will be coordinated with the Customer. CHANGE ORDERS AND ADDITIONAL SERVICE: Unless specifically documented on the Proposal Sheet and included in the Price, construction, repair and other work or materials related to the Project, including, but not limited to electrical, drywall, painting, millwork, underground trenching or laying or supplying conduit for wiring "Service are not included in the Price and Customer agrees to pay Company for such Service at the rate furnished to Customer by Company at the time such Service is requested by Customer, unless otherwise agreed to in writing by Customer and Company. The Customer may order changes in the Project consisting of additions, deletions, or modifications to the Project, with the Price and the Completion Date being adjusted accordingly. Company may initiate a Change Order upon encountering an Unavoidable Delay or Unknown Condition, upon discovery that the Equipment identified on the Proposal Sheet is obsolete, discontinued or unavailable, or otherwise as provided in this Agreement. An adjustment to the Price will be based on the cost of labor, materials, overhead, additional or different Equipment and profit. All such changes in the Project shall become binding upon written directive by Customer and upon written acceptance or proceeding with the work by Company. DRAWINGS AND PLANS: All drawings, designs, and plans created by the Company are the sole property of the Company and may not be duplicated or provided to anyone other than Company or Customer. Only one Design will be provided by the Company. If a redesign or second Design is requested by the Customer, such request will be considered a Change Order pursuant to Section 5 hereof, and may be subject to an additional cost to the Customer SOFTWARE LICENSE: The Company hereby grants to Customer a non transferable software license for Customer's use in connection with the establishment, use and maintenance of the system software implemented by the Company. Software shall mean compiled object code of software programs necessary for the proper function and operation of the system as delivered by the Company and accepted by the Customer. The Company shall at all times own all intellectual property rights and source code (also referred to as uncompiled code) in connection with the Software. In no way does this Software License confer any right in Customer to license, sublicense, sell, or otherwise authorize the use of the software, whether in compiled form, source code form or otherwise, by any third parties. Any software modification made by any party other than the Company will null and void any active service agreement or warranty. LIMITATION OF LIABILITY: The Company shall not under any circumstances be liable to the Customer or any third party for special, indirect, incidental, or consequential damages, including, without limitation, loss of profits or revenues, loss or damage to other property or equipment, cost of capital or of purchased or replacement good, or expense, delay or inconvenience caused by or arising from the purchase, sale, use, repair or inability to use the Project or by any performance or non performance under, or breach of, this Agreement. RETURNS AND ALLOWANCES: Customer may not return or cancel the purchase of any Project Equipment after Installation of the Equipment has been completed. If Customer returns, refuses or cancels the Project Equipment after the execution of this Purchase Agreement but before the Installation of the Equipment, Customer agrees to pay Company for all actual expenditures, commitments, liabilities and costs, determined in accordance with good accounting practice, made or incurred with respect to such Equipment along with a restocking charge of twenty percent (20 of the Price. Company shall have the absolute right to cancel and refuse to complete the Project if at any time Customer becomes insolvent or bankrupt or otherwise does not strictly comply with the terms and conditions of this Agreement, and if Company so cancels and refuses, Customer agrees to pay Company for all actual expenditures, commitments, liabilities and costs, determined in accordance with good accounting practice, made or incurred with respect to such incomplete Products, along with a restocking charge of twenty percent (20 of the Price. NON SOLICITATION: During the period of this Agreement and through twelve (12) months following the Agreement, the Customer and the Company will not directly or indirectly solicit, take away, hire, employ or endeavor to employ any of the employees of the Customer or the Company. GOVERNING LAW: All disputes between the parties, whether or not arising out of this Agreement, will be governed by the laws of the State of Indiana. _±.1a===.6 FORCE MAJEURE: Company shall not be liable for any delay in the prosecution or completion of the Project caused by matters beyond Company's control, including, without limitation, the acts of any developer or contractor not affiliated with Company, acts of Nature, labor strikes or disputes, acts of employees of suppliers of labor or materials, shortages or unavailability of labor or materials, damage by earthquake, storm, fire, theft or other casualty, Change Orders, Customer's acts or omissions or default under the Sales Agreement, unknown subsurface or other conditions "Unknown Conditions or adverse weather (if applicable) "Unavoidable Delay In the event of any Unavoidable Delay, the completion date shall be extended for a period equal to the time lost by reason of such Unavoidable Delay. TAXES: Sales, use, excise, property and other taxes levied by municipal, state or federal governments arising out of or relating to this Agreement, or the Project delivered pursuant hereto are not included in the Price. Customer agrees that if Customer is liable for all such taxes, that Customer will promptly reimburse Company for any such tax which the Company may be called upon to pay. 6. Agreement Acceptance A signature indicates the Project Agreement has been reviewed and is approved. Sensory Representative Date Client Representative Date Printed Name and Title 7. Attachments 1. none.