HomeMy WebLinkAboutIT14-080 - Original - DPE Systems, Inc - NexSan E18V Storage for Backup System Upgrade - 03/12/2014 •
KENT
WAS H.NGTON
GOODS & SERVICES AGREEMENT
between the City of Kent and
DPE Systems, Inc.
THIS AGREEMENT is made by and between the City of Kent, a Washington municipal
corporation (hereinafter the "City"), and DPE Systems, Inc. organized under the laws of the
State of Washington, located and doing business at 120 Lakeside Ave, STE 230 Seattle, WA
981221 206-223-3737 (hereinafter the "Vendor").
AGREEMENT
I. DESCRIPTION OF WORK.
Vendor shall provide the following goons arrd-materials--a7rd/or-serforrrr-the-foffowwg-
services for the City:
E18V2-16P2/900
Vendor acknowledges and understands that it is not the City's exclusive provider of these
goods, materials, or services and that the City maintains its unqualified right to obtain these
goods, materials, and services through other sources.
II. TIME OF COMPLETION. Upon the effective date of this Agreement, Vendor shall
complete the work and provide all goods, materials, and services within 4 weeks of issuance of
the purchase order to DPE Systems.
III. COMPENSATION. The City shall pay the Vendor an amount not to exceed
$24,999, including applicable Washington State Sales Tax, for the goods, materials, and services
contemplated in this Agreement. The City shall pay the Vendor the following amounts according
to the following schedule:
GOODS & SERVICES AGREEMENT - 1
Within Net 30 Days of DPE Invoice Issuance
If the City objects to all or any portion of an invoice, it shall notify Vendor and reserves
the option to only pay that portion of the invoice not in dispute. In that event, the parties will
immediately make every effort to settle the disputed portion.
A. Defective or Unauthorized Work. The City reserves its right to withhold payment
from Vendor for any defective or unauthorized goods, materials or services. If
Vendor is unable, for any reason, to complete any part of this Agreement, the City
may obtain the goods, materials or services from other sources, and Vendor shall
be liable to the City for any additional costs incurred by the City. "Additional costs"
shall mean all reasonable costs, including legal costs and attorney fees, incurred by
the City beyond the maximum Agreement price specified ahave___ The City further
reserves its right to deduct these additional costs incurred to complete this
Agreement with other sources, from any and all amounts due or to become due the
Vendor.
B. Final Payment: Waiver of Claims. VENDOR'S ACCEPTANCE OF FINAL PAYMENT
SHALL CONSTITUTE A WAIVER OF CLAIMS, EXCEPT THOSE PREVIOUSLY AND
PROPERLY MADE AND IDENTIFIED BY VENDOR AS UNSETTLED AT THE TIME
REQUEST FOR FINAL PAYMENT IS MADE.
IV. INDEPENDENT CONTRACTOR. The parties intend that an Independent
Contractor-Employer Relationship will be created by this Agreement. By their execution of this
Agreement, and in accordance with Ch. 51.08 RCW, the parties make the following
representations:
A. The Vendor has the ability to control and direct the performance and details
of its work, the City being interested only in the results obtained under this
Agreement.
B. The Vendor maintains and pays for its own place of business from which
Vendor's services under this Agreement will be performed.
C. The Vendor has an established and independent business that is eligible for a
business deduction for federal income tax purposes that existed before the
City retained Vendor's services, or the Vendor is engaged in an
independently established trade, occupation, profession, or business of the
same nature as that involved under this Agreement.
D. The Vendor is responsible for filing as they become due all necessary tax
documents with appropriate federal and state agencies, including the Internal
Revenue Service and the state Department of Revenue.
GOODS & SERVICES AGREEMENT - 2
-(Gver$49000.BB, including WSST'
E. The Vendor has registered its business and established an account with the
state Department of Revenue and other state agencies as may be required
by Vendor's business, and has obtained a Unified Business Identifier (UBI)
number from the State of Washington.
F. The Vendor maintains a set of books dedicated to the expenses and earnings
of its business.
V. TERMINATION. Either party may terminate this Agreement, with or without
cause, upon providing the other party thirty (30) days written notice at its address set forth on
the signature block of this Agreement.
VI. CHANGES. The City may issue a written amendment for any change in the goods,
materials or services to be provided during the performance of this Agreement. If the Vendor
determines, for any reason, that an amendment is necessary, Vendor must submit a written
amendment request to the person listed in the notice provision section of this Agreement,
section XIV(D), within fourteen (14) calendar days of the date Vendor knew or should have
known of the facts and events giving rise to the requested change. If the City determines that
the change increases or decreases the Vendor's costs or time for performance, the City will
make an equitable adjustment. The City will attempt,-in_good_faith, to reach agreement with the
Vendor on all equitable adjustments. However, if the parties are unable to agree, the City will
determine the equitable adjustment as it deems appropriate. The Vendor shall proceed with the
amended work upon receiving either a written amendment from the City or an oral order from
the City before actually receiving the written amendment. If the Vendor fails to require an
amendment within the time allowed, the Vendor waives its right to make any claim or submit
subsequent amendment requests for that portion of the contract work. If the Vendor disagrees
with the equitable adjustment, the Vendor must complete the amended work; however, the
Vendor may elect to protest the adjustment as provided in subsections A through E of Section
VII, Claims, below.
The Vendor accepts all requirements of an amendment by: (1) endorsing it, (2) writing a
separate acceptance, or (3) not protesting in the way this section provides. An amendment that
is accepted by Vendor as provided in this section shall constitute full payment and final
settlement of all claims for contract time and for direct, indirect and consequential costs,
including costs of delays related to any work, either covered or affected by the change.
VII. CLAIMS. If the Vendor disagrees with anything required by an amendment,
another written order, or an oral order from the City, including any direction, instruction,
interpretation, or determination by the City, the Vendor may file a claim as provided in this
section. The Vendor shall give written notice to the City of all claims within fourteen (14)
calendar days of the occurrence of the events giving rise to the claims, or within fourteen (14)
calendar days of the date the Vendor knew or should have known of the facts or events giving
rise to the claim, whichever occurs first . Any claim for damages, additional payment for any
reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively
deemed to have been waived by the Vendor unless a timely written claim is made in strict
accordance with the applicable provisions of this Agreement.
At a minimum, a Vendor's written claim shall include the information set forth in
subsections A, items 1 through 5 below.
FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM
WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY
GOODS & SERVICES AGREEMENT - 3
CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS
SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY.
A. Notice of Claim. Provide a signed written notice of claim that provides the following
information:
1. The date of the Vendor's claim;
2. The nature and circumstances that caused the claim;
3. The provisions in this Agreement that support the claim;
4. The estimated dollar cost, if any, of the claimed work and how that
estimate was determined; and
5. An analysis of the progress schedule showing the schedule change or
disruption if the Vendor is asserting a schedule change or disruption.
B. Records. The Vendor shall keep complete records of extra costs and time incurred
as a result of the asserted events giving rise to the claim. The City shall have
access to any of the Vendor's records needed for evaluating the protest.
The City will evaluate all claims, provided the procedures in this section are
followed. If the City determines that a claim is valid, the City will adjust-payment
for work or time by an equitable adjustment. No adjustment will be made for an
invalid protest.
C. Vendor's Duty to Complete Protested Work. In spite of any claim, the Vendor shall
proceed promptly to provide the goods, materials and services required by the City
under this Agreement.
D. Failure to Protest Constitutes Waiver. By not protesting as this section provides,
the Vendor also waives any additional entitlement and accepts from the City any
written or oral order (including directions, instructions, interpretations, and
determination).
E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures
of this section, the Vendor completely waives any claims for protested work and
accepts from the City any written or oral order (including directions, instructions,
interpretations, and determination).
VIII. LIMITATION OF ACTIONS. VENDOR MUST, IN ANY EVENT, FILE ANY LAWSUIT
ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN 120 CALENDAR DAYS FROM
THE DATE THE CONTRACT WORK IS COMPLETE OR VENDOR'S ABILITY TO FILE THAT SUIT
SHALL BE FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY APPLICABLE STATUTORY
LIMITATIONS PERIOD.
IX. WARRANTY. This Agreement is subject to all warranty provisions established
under the Uniform Commercial Code, Title 62A, Revised Code of Washington. Vendor warrants
goods are merchantable, are fit for the particular purpose for which they were obtained, and will
perform in accordance with their specifications and Vendor's representations to City. The Vendor
shall correct all defects in workmanship and materials within one (1) year from the date of the
City's acceptance of the Contract work. In the event any part of the goods are repaired, only
original replacement parts shall be used—rebuilt or used parts will not be acceptable. When
defects are corrected, the warranty for that portion of the work shall extend for one (1) year
from the date such correction is completed and accepted by the City. The Vendor shall begin to
GOODS & SERVICES AGREEMENT - 4
correct any defects within seven (7) calendar days of its receipt of notice from the City of the
defect. If the Vendor does not accomplish the corrections within a reasonable time as
determined by the City, the City may complete the corrections and the Vendor shall pay all costs
incurred by the City in order to accomplish the correction.
X. DISCRIMINATION. In the hiring of employees for the performance of work under
this Agreement or any sub-contract, the Vendor, its sub-contractors, or any person acting on
behalf of the Vendor or sub-contractor shall not, by reason of race, religion, color, sex, age,
sexual orientation, national origin, or the presence of any sensory, mental, or physical disability,
discriminate against any person who is qualified and available to perform the work to which the
employment relates.
Vendor shall execute the attached City of Kent Equal Employment Opportunity Policy
Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract
work, file the attached Compliance Statement.
XI. INDEMNIFICATION. Vendor shall defend, indemnify and hold the City, its
officers, officials, employees, agents and volunteers harmless from any and all claims, injuries,
damages, losses or suits, including all legal costs and attorney fees, arising out of or in
connection-with the_Vendor's performance of this Agreement, except_ for that -portion of the
injuries and damages caused by the City's negligence.
The City's inspection or acceptance of any of Vendor's work when completed shall not be
grounds to avoid any of these covenants of indemnification.
IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE
INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE VENDOR'S WAIVER OF IMMUNITY
UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS
INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY
NEGOTIATED THIS WAIVER.
In the event Vendor refuses tender of defense in any suit or any claim, if that tender was
made pursuant to this indemnification clause, and if that refusal is subsequently determined by a
court having jurisdiction (or other agreed tribunal) to have been a wrongful refusal on the
Vendor's part, then Vendor shall pay all the City's costs for defense, including all reasonable
expert witness fees and reasonable attorneys' fees, plus the City's legal costs and fees incurred
because there was a wrongful refusal on the Vendor's part.
The provisions of this section shall survive the expiration or termination of this
Agreement.
XII. INSURANCE. The Vendor shall procure and maintain for the duration of the
Agreement, insurance of the types and in the amounts described in Exhibit (Not Applicable)
attached and incorporated by this reference.
XIII. WORK PERFORMED AT VENDOR'S RISK. Vendor shall take all necessary
precautions and shall be responsible for the safety of its employees, agents, and subcontractors
in the performance of the contract work and shall utilize all protection necessary for that
purpose. All work shall be done at Vendor's own risk, and Vendor shall be responsible for any
loss of or damage to materials, tools, or other articles used or held for use in connection with the
work.
GOODS & SERVICES AGREEMENT - 5
{der$�9,BBB.99 pehidipq WSST'
XIV. MISCELLANEOUS PROVISIONS.
A. Recyclable Materials. Pursuant to Chapter 3.80 of the Kent City Code, the City
requires its contractors and consultants to use recycled and recyclable products whenever
practicable. A price preference may be available for any designated recycled product.
B. Non-Waiver of Breach. The failure of the City to insist upon strict performance of
any of the covenants and agreements contained in this Agreement, or to exercise any option
conferred by this Agreement in one or more instances shall not be construed to be a waiver or
relinquishment of those covenants, agreements or options, and the same shall be and remain in
full force and effect.
C. Resolution of Disputes and Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Washington. If the parties are unable
to settle any dispute, difference or claim arising from the parties' performance of this
Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by
filing suit exclusively under the venue, rules and 3urisdiction of the King County Superior Court,
King County, Washington, unless the parties agree in writing to an alternative dispute resolution
process. In any claim or lawsuit for damages arising from the parties' performance of this
_Agreement, each party shall_my all its legal costs and attorney's fees incurred in defending or
bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award
provided by law; provided, however, nothing in this paragraph shall be construed to limit the
City's right to indemnification under Section XI of this Agreement.
D. Written Notice. All communications regarding this Agreement shall be sent to the
parties at the addresses listed on the signature page of the Agreement, unless notified to the
contrary. Any written notice hereunder shall become effective three (3) business days after the
date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to
the addressee at the address stated in this Agreement or such other address as may be
hereafter specified in writing.
E. Assignment. Any assignment of this Agreement by either party without the written
consent of the non-assigning party shall be void. If the non-assigning party gives its consent to
any assignment, the terms of this Agreement shall continue in full force and effect and no
further assignment shall be made without additional written consent.
F. Modification. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of
the City and Vendor.
G. Entire Agreement. The written provisions and terms of this Agreement, together
with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or
other representative of the City, and such statements shall not be effective or be construed as
entering into or forming a part of or altering in any manner this Agreement. All of the above
documents are hereby made a part of this Agreement. However, should any language in any of
the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms
of this Agreement shall prevail.
H. Compliance with Laws. The Vendor agrees to comply with all federal, state, and
municipal laws, rules, and regulations that are now effective or in the future become applicable
to Vendor's business, equipment, and personnel engaged in operations covered by this
Agreement or accruing out of the performance of those operations.
GOODS & SERVICES AGREEMENT - 6
(Over-$18,000 007 ;nGiudipg WSST'
I. City Business License Required. Prior to commencing the tasks described in Section
I, Contractor agrees to provide proof of a current city of Kent business license pursuant to
Chapter 5.01 of the Kent City Code.
J. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, and all of which will together constitute this one
Agreement.
IN WITNESS, the parties below execute this Agreement, which shall become
effective on the last date entered below.
VENDOR: CITY OF KENT:
By: _ By: 4
(srgn a (sr nature)
Print Name• r Print Name: S�aetEeeaJce 11
Its «c << film n u cL Its Mayor Oro
DATE:-" DATE:
NOTICES TO BE SENT TO: NOTICES TO BE SENT TO:
VENDOR: CITY OF KENT:
Jerome Nottage Sean Kelsey
DPE Systems, Inc. City of Kent
120 Lakeside Ave STE 230 220 Fourth Avenue South
Seattle, WA 98122 Kent, WA 98032
206-223-3737 (telephone) (253) 856-4611 (telephone)
[Insert Fax Number] (facsimile) (253) 856-4700 (facsimile)
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APPROVED AS TO ORM:
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Kent Law Depart
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GOODS &SERVICES AGREEMENT - 7
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DPE Systems,Inc
120 Lakeside Ave Date
Suite 230 Mar 7,2D14 12 34 PM PST
Seattle,Washington 98122 - -----• -
United States Doc#
http//www.dpes.com 33281 -rev 1 of 1
T t; yI Description
1 C 5 R18V
Sales Rep
Nottage,Jerome
(P)206-557-7207
(F)206-223-OB59
Customer Contact
Beagle,Chris
Customer Bill To Ship To
City of Kent(00004082) City of Kent City of Kent
220 Fourth Ave S Payable,Accounts Technology,Information
Kent,Washington 98032 220 Fourth Ave S 400 W Gowe St
(P) 253-856-4266 Kent, Washington 98032 Suite 122
(P)253-856-4266 Kent,Washington 98032
(P)253-856-4266
Customer PO: Terms: Ship Via:
_ None Undefined Fed Ex Ground
Special Instructions: Carrier Account#:
None None
Description Part# Qty Tax Unit Price Total
1 E18V2-16P2/900 1 Yes $22,830.00 $22,830 00
Subtotal $22,830.00
Tax(9 500%) $2,168 85
Shipping $0 00
Total:$24,998.85
The prices quoted do NOT Include applicable insurance,delivery,setup fees,or any cabling material or services unless specifically listed
above.All shipping and taxes quoted are estimates only All prices are subject to change without notice Unless otherwise stated, all
prices expire at the end of the month Supply is subject to availability.Title to the item(s)sold shall remain vested in seller until the
purchase price and all other costs,charges,and expenses including applicable taxes, have been paid in full Customer will pay
transportation and related charges for returning product(s) Customer will incur a 20% restocking fee for cancelled orders If customer
fails to pay any sum when due,a one percent(1%)per month finance charge will be assessed on all amounts outstanding In the event
DPE Systems, Inc (DPE)must enforce any provision of this Quotation,Customer shall be liable for all reasonable attorneys fees,costs,
and legal expenses, incurred by(DPE)in the exercise of its remedies
I hereby accept the ter his
SIGNED. � SUG. 0762,
2�
q OV. l
REQUEST FOR MAYOR'S SIGNATURE
�✓ KENT Please Fill in All Applicable Boxes
N gS+ xYV '
Routing Information (ALL REQUESTS MUST FIRST BE ROUTED THROUGH THE LAW DEPARTMENT)
Originator: Sean Kelsey Phone (Originator): 4611
Date Sent: 3/10/14 Date Required: ASAP
Return Signed Document to: CONTRACT TERMINATION DATE:
VENDOR NAME:. DPE Systems DATE OF COUNCIL APPROVAL:
Brief Explanation of Document:
This purchase is to add necessary drive space for the Backup system upgrade.
This purchase has been allocated to the 201_ 3_4 Capital Budget approved by council.
All Contracts Must Be Routed Through The Law Department
(This area to be completed by the Law Department)
IV ED ��
Received: " UL
Approval of Law Dept.: MAR 1 1 2014
t
Law Dept. Comments: U�U I
KENT LAW DEPT. VE D
Date Forwarded to Mayor: I �t `L� MAR 1 1 2014
Shaded Areas To Be Completed By Administrate > Of Kent
Received:
Recommendations and Comments: (� t
EDDisposition. / ►���1
�Date Returned: MAR 13t20
CRY OF