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Agenda 12/11/2012 Item #16C4
12/11/2012 Item 16.C.4. EXECUTIVE SUMMARY Recommendation to approve an amendment to Contract #11 -5752 to correct an error in the terms and conditions to be in agreement with the Board- approved amount. OBJECTIVE: Renew existing software licensing for Supervisory Control and Data Acquisition (SCADA) systems used to manage and ensure compliance, and sustain level of service standards for all raw water treatment and distribution, and wastewater treatment and plant operations and to amend the agreement to reflect the correct amount. CONSIDERATIONS: On April 24, 2012, the Board approved the renewal and sole source agreement of Contract #11 -5752 with GE Intelligent Platforms in the amount of $60,342.03 under Agenda Item 16C2. As the final legal review was being completed, an error in the Terms and Conditions was discovered. The proposed Terms and Conditions for the license maintenance contract renewal incorrectly referenced the previous year's contract amount of $49,732.00 instead of the correct amount of $60,342.03. Staff recommends a contract amendment to increase the contract in the amount of $10,610.03 to correct the error. The contract renewal covers all existing installed software licenses. FISCAL IMPACT: Funds in the amount of $10,610.03 are available in Projects 71056 and 72541. The source of the funds are Water User Fee Fund 412 and Wastewater User Fee Fund 414. GROWTH MANAGEMENT IMPACT: This project meets current Growth Management Plan standards to ensure the adequacy and availability of viable public facilities LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office, is legally sufficient for Board action and only requires a majority vote for approval —SRT. RECOMMENDATION: That the Board of County Commissioners, as Ex- officio the Governing Board of the Collier County Water -Sewer District, approve an amendment to Contract #11 -5752 to correct an error in the terms and conditions to be in agreement with the Board - approved amount, and authorize the Chairman to sign and execute the attached amendment after final review and approval by the County Attorney's Office. Prepared by: Aaron Cromer, Principal Project Manager, Planning and Project Management Department, Public Utilities Division Attachments: GE Intelligent Platforms Contract Amendment April 24, 2012, Board Approval of Executive Summary, Sole Source for GE Intelligent Platforms, GE Intelligent Platforms contract renewal documentation Packet Page -2849- 12/11/2012 Item 16.C.4. COLLIER COUNTY Board of County Commissioners Item Number: 16.C.4. Item Summary: Recommendation to approve an amendment to Contract #11 -5752 to correct an error in the terms and condtions to be in agreement with the Board - approved amount. Meeting Date: 12/11/2012 Prepared By Name: CromerAaron Title: Project Manager, Principal,Public Utilities Engineering 11/14/2012 12:23:28 PM Submitted by Title: Project Manager, Principal,Public Utilities Engineering Name: CromerAaron 11/14/2012 12:23:31 PM Approved By Name: HapkeMargie Title: Operations Analyst, Public Utilities Date: 11/15/2012 4:34:42 PM Name: WardKelsey Title: Manager - Contracts Administration,Purchasing & Ge Date: 11/19/2012 10:38:35 AM Name: Susan Jacobs Title: Operations Analyst, Public Utilities Date: 11/19/2012 10:47:20 AM Name: ParkerNicole Title: Contracts Specialist,Purchasing & General Services Date: 11/19/2012 10:56:11 AM Packet Page -2850- Name: MarkiewiczJoanne Title: Manager - Purchasing Acquisition,Purchasing & Gene Date: 11/19/2012 1:32:04 PM Name: ChmelikTom Title: Director, Public Utilities Engineering Date: 11/19/2012 5:07:12 PM Name: ParkerNicole Title: Contracts Specialist,Purchasing & General Services Date: 11/20/2012 7:39:11 AM Name: YilmazGeorge Title: Administrator, Public Utilities Date: 11/22/2012 10:46:32 AM Name: TeachScott Title: Deputy County Attorney,County Attorney Date: 11/26/2012 10:52:19 AM Name: KlatzkowJeff Title: County Attorney Date: 11/26/2012 4:08:27 PM Name: UsherSusan Title: Management/Budget Analyst, Senior,Office of Manage Date: 11/30/2012 4:48:56 PM Name: OchsLeo Title: County Manager Date: 12/4/2012 10:50:29 AM Packet Page -2851- 12/11 /2012 Item 16.C.4. 12/11/2012 Item 16.C.4. EXHIBIT A-1 Contract Amendment No.1 11 -5752 "GE Intelligent Platforms" This amendment, dated , 2012 to the referenced agreement shall be by and between the parties to the original agreement, GE Intelligent Platforms, Inc., and Collier County, Florida, (to be referred to as "County"). RE: Contract # 11 -5752 "GE Intelligent Platforms" In order to continue the services provided for in the original Contract document referenced above, GE Intelligent Platforms, Inc. agrees to amend the above referenced Contract to include new softymo support licensing agreements in the amount of sixty thousand three hundred forty two dollars and three cents ($60,342.03) as described in Exhibit Al -A "Statement of Work #780T', attached herein and incorporated by reference. All other terms and conditions of the agreement shall remain in force. IN WTfNESS WHEREOF, GE Intelligent Platforms, Inc. and County have each, respectively,. by an authorized person or agent, hereunder set their hands and seals on the date(s) indicated below. ATTEST: Corporate Secretary/Witness By: Dated: ATTEST: Dwight E. Brock, Clerk By: Approved as to form and Legal sufficiency: Assistant County Attorney Firm GE Intelligent Platforms, Inc. By: Title: Dated: 1 firs BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA Fred Coyle, Chairman Packet Page -2852- 12/11/2012 Item 16.C.4. Exhibit Al -A GEIP - GC Complete - 100111 As modified by the parties STATEMENT OF WORK (SOW) #7807 GE Intelligent Platforms, Inc. Proficy GlobalCare Complete Support Terms and Conditions Services. With respect to the Licensed Application Software (as defined in the underlying License Agreement, "Application Software "), GE Intelligent Platforms, Inc. will provide the following services during the applicable period: 1.1. Telephone Support. GE will provide support consultation to Customer regarding use and operation of the Application Software. Such consultation will include telephone call back or web -based communication and will be available 8:00 A.M. to 8:00 P.M. E.S.T. or 9:00 A.M. to 5:00 P.M. Mean Time Europe or 9:00 A.M. to 6:00 P.M. China Standard Time, as applicable, Monday through Friday, excluding holidays at the customer care location. GE will provide the Customer with direct telephone support consultation and /or web -based communication that shall be available 24 hours a day, 7 days a week in cases of emergencies. Such emergencies include when the entire system is down or an existing mission critical product feature is inoperable resulting in disruption or product outage. GE reserves the right to limit the number of authorized callers when deemed necessary by GE in its sole discretion. Once such a limit has been imposed, Customer may register additional individuals for an additional fee. Customer will also have access to the Online Knowledge Base 24 hours a day, 7 days a week. The Online Knowledge Base provides access to support reference information including articles, white papers, error messages, sample code, and developer downloads. A Knowledge Base CD enables access to the Knowledge Base when not connected to the Internet. The Knowledge Base CD will be distributed to Customer (a) upon commencement of any initial or renewal GlobalCare term, and (b) at any other time upon reasonable request from Customer. 1.2. Problem Solving. GE technical personnel will be assigned to attempt correction of problems in the Application Software discovered by Customer and reported to GE in sufficient detail to permit GE to reproduce such problems. Customers are advised that remote access trouble- shooting tools may be called for in order to assist efforts to correct problems, and that such efforts may be impaired if the customer is unable to accommodate the use of such tools. Corrections made by GE to such problems will be available for download by Customer, or, at GE's option, GE may provide such problem correction through its next scheduled release of the Application Software. GE's obligation in such regard shall be to use its reasonable efforts to correct such problems; however, GE does not warrant that all such reported problems will be corrected. In the event a reported problem is determined to be of Customer origin, GE may bill Customer at GE's then current per diem rates for any time expended in an effort to correct such problem. 1.3. Enhancements. GE will provide the Customer with notice of all Service Pack enhancements for the current version of the Application Software that are released during the term of this agreement ( "Service Packs "), all software improvement modules for the Application Software version that are released during the term of this agreement ( "SIMs "), and all Application Software version upgrades that are released during the term of this agreement ( "Upgrades "), at no additional charge, with exceptions noted as follows. GE reserves the right to charge for significant new product functionality introduced in major product releases ( "Major Feature "). Major features are features that are licensed separately and will be additional to the base configuration that the Customer is already licensed to use. Service Packs, SIMs, and Upgrades are provided for the quantity of registered Application Software systems on site. Service Packs, SIMs, and Upgrades apply only to the Application Software and do not include any updates, enhancements, service packs, or upgrades to the operating system or other software. The Customer may order any of the Service Packs, SIMs, and /or Upgrades by visiting www.ge- ir).com /support during the term of this agreement. GE may from time to time make other downloads such as Developer Downloads and 1/0 Drivers available to Customer ( "Other Downloads "). 1.4. Application Software Terms. All Service Packs, SIMs, Upgrades, corrections, updates, enhancements, documentation, modifications, Other Downloads and other such supporting materials furnished to Customer hereunder shall be considered part of the Application Software and subject to all the terms Packet Page -2853- 12/11/2012 Item 16.C.4. and conditions of the License Agreement, including those provisions limiting the use of the Application Software to the computer upon which it was initially installed as authorized by the License Agreement. 2. Warranty. GE warrants to the Customer that services provided hereunder shall be performed in a manner consistent with standard commercial practices in the industry. If any failure to meet this warranty appears within ninety (90) days after completion of the specific services in question, GE will correct any such failure by reperforming any defective portion of the services furnished. If reperformance is not practicable, GE will furnish, without charge, services in an amount essentially equal to those which, in GE's sole judgment, would have been required for reperformance. The warranties and remedies set forth herein are conditioned upon: (i) proper installation, use, and maintenance of the Application Software and the proper design and configuration of the system into which the Application Software is installed, and conformance with any applicable recommendations of GE; and (ii) Customer promptly notifying GE of any defects and making any personnel, software or computer systems available as necessary. The preceding sets forth the exclusive remedy for all claims based on failure of, or defect in, services provided hereunder, whether the failure or defect arises before or during the warranty period, and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. Upon the expiration of the warranty period, all such liability shall terminate. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY. GE DOES NOT WARRANT ANY PRODUCTS OR SERVICES OF OTHERS WHICH CUSTOMER HAS DESIGNATED. Limit of Liability. GE'S LIABILITY ON ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM ANY SERVICES COVERED BY OR FURNISHED UNDER THESE TERMS AND CONDITIONS (INCLUDING REMEDIAL WARRANTY EFFORTS), OR FROM THE PERFORMANCE OR BREACH OF THESE TERMS AND CONDITIONS, SHALL IN NO CASE EXCEED THE ANNUAL CONTRACT PRICE OF THE SUPPORT SERVICES FURNISHED HEREUNDER. ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD SPECIFIED IN SECTION 2 ABOVE. Exclusion of Conseguential Damages. IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL GE, ITS EMPLOYEES AND SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, COST OF PURCHASED POWER, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF CUSTOMERS OF THE CUSTOMER FOR SUCH DAMAGES. 5. Gratuitous Advice. If GE furnishes the Customer with advice or assistance concerning any products or systems which is not required pursuant to these terms and conditions, the furnishing of such advice or assistance will not subject GE to any liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. 6. Restrictions on Assignment. Customer may not assign or transfer this agreement without GE's prior written agreement. 7. Conditions of Service. The Application Software must be unmodified and in normal operating condition, and maintained at the latest release or revision level, and must contain the minimum equipment configuration at the revision level specified by GE. Customer must consult with GE before performing any upgrades on any third party software required to run the Application Software. 8. Term and Termination 8.1. GlobalCare Support dates of service will be as stated on the Customer's GlobalCare Support program certificate. Customer shall have the right to renew GlobalCare Support on a yearly basis as provided herein, subject to continuation of the program for the product(s) and payment of the applicable GE yearly service fee then in effect. 8.2. GE shall notify Customer that the applicable service period is ending, no less than thirty (30) days prior to expiration. Timely payment of the applicable yearly service fee, as provided in Section 9 below, shall Packet Page -2854- 12/11/2012 Item 16.C.4. extend Support Services. If payment is not received as set forth herein, Support Services will be terminated, and Customer will be placed on inactive status. The Customer may reactivate Support Services thereafter by paying a re- instatement fee. 8.3. GE may after, discontinue, or refuse to permit the renewal of, any GlobalCare Support Program with respect to any or all products at any time. Customers will be notified of any alterations or planned discontinuations in a program at the time of the commencement of any initial or renewal term of such program. In the event of a discontinuation of a program, GE will continue to provide program support to existing Customers, subject to payment of the applicable GE yearly service fee then in effect, until the expiration of the Customer's initial or renewal term. 8.4. Support Services hereunder shall automatically terminate in the event the License Agreement is terminated. 9. Charges and Payment Terms 9.1. GE may adjust its applicable yearly service fee for GlobalCare Support either up or down for each renewal year following the initial period of its provision of GlobalCare Support, provided that GE notifies Customer of the amount of such adjustment at least thirty (30) days in advance of each such renewal. 9.2. Charges for each renewal year of Support Services are due upon renewal and shall be paid in accordance with Section 218.70, Fla. Stats., otherwise known as the "Local Government Prompt Payment Act ". 9.3. The Not to Exceed annual cost for Licensing and Service is Sixty Thousand Three Hundred Forty Two Dollars and Three Cents ($60,342.03). 10. Use of Technical Information. With respect to any technical information that the Customer may provide to GE in connection with the GlobalCare Support, GE may use such information for the limited purposes of writing and posting technical notes on the support services website and Knowledge Base CD and compiling aggregate data, for internal use only, on the frequency and type of support services requested. GE will not utilize such technical information in any form that personally identifies the Customer. 11. General Provisions. 11.1. These Terms and Conditions, along with the End User License Agreement attached as Exhibit A, contain the complete agreement between the parties, and no modification, amendment, rescission, waiver or other change will be binding on GE unless agreed to in writing by GE's authorized representative. Any oral or written representation, warranty, course of dealing or trade usage not contained or referenced herein will not be binding on GE. The invalidity, in whole or part, of any sections or subsections hereof shall not affect the remainder of such section or subsection or any other section or subsection hereof. 11.2. This Agreement shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. 11.3. Customer shall not transmit to GE any information, suggestions, or ideas claimed by Customer to be confidential except pursuant to a writing, signed by an authorized representative of GE, which identifies such information and addresses its confidentiality. Packet Page -2855- 12111/2012 Item 16.C.4. GEIP - EULA - 091211 GE Intelligent Platforms, Inc. ( "GE ") End User License Agreement YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE OPENING THIS PACKAGE OR SIGNIFYING YOUR ACCEPTANCE BY CLICKING THE APPROPRIATE DIALOG BOX. OPENING THIS PACKAGE OR CLICKING THE APPROPRIATE DIALOG BOX OR USING ANY PART OF THE SOFTWARE SIGNIFIES YOUR ACCEPTANCE AS "CUSTOMER" OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THEM, YOU SHOULD PROMPTLY RETURN THE PACKAGE UNOPENED AND UNUSED ALONG WITH ANY OTHER ITEM THAT WAS INCLUDED IN THE SAME CATALOG NUMBER FOR FULL CREDIT. 1. DEFINITIONS 1.1 "Application Software" shall mean those portions of the Licensed Software, in object code form only, created by GE. 1.2 "Designated Computer" shall mean the one (1) computer upon which Customer shall run the Licensed Software. 1.3 "Third Party Software" shall mean software, including but not limited to operating systems, owned or licensed by a third party that is supplied to Customer by GE. 1.4 "Licensed Software" shall mean the Application Software plus any other software (including Third Party Software), in object code form only, supplied by GE pursuant to this Agreement. If no operating system software is included in the software provided under this Agreement, Customer must make provision for any required operating system software licenses. 2. LICENSE 2.1 Except as provided in Section 2.2 below, Customer is granted only a personal, non - transferable, nonexclusive license to install and use one copy of the Licensed Software only on the Designated Computer. Customer may make one copy of the Licensed Software in machine readable form for backup purposes in support of Customer's use of the Licensed Software on the Designated Computer. No other copies shall be made unless authorized in writing by GE. Customer may not modify, reverse compile or disassemble the software. The Licensed Software, comprising proprietary trade secret information of GE and /or its licensors, shall be held in confidence by Customer and protected from copying or disclosure to third parties. No title to the intellectual property is transferred. Customer must reproduce and always include all applicable copyright notices and proprietary markings on any copy. Customer hereby acknowledges and agrees that any Licensed Software that is embedded within GE hardware, shall be used, redistributed and/or resold only to the extent permissible under this Agreement and only embedded within the GE hardware with which it was provided. 2.2 If Customer is an authorized GE distributor or an Original Equipment Manufacturer or a system provider who incorporates the Licensed Software into its equipment or system for sale to an end user, or if Customer uses the Licensed Software to create redistributables, Customer may only transfer the Licensed Software to an end user provided that the end user agrees to be bound by the provisions of this Agreement. Customer shall use its best efforts to enforce its agreement with customers made in accordance with this section, and shall promptly report any violation or suspected violation to GE. 2.3 All rights and benefits afforded to GE under this Agreement shall apply equally to the owner of the Third Party Software and its licensors (collectively, the "Third Parties ") with respect to the Third Party Software, The Third Parties are intended third party beneficiaries of this Agreement. The provisions of this Agreement relating to the Licensed Software, as the same incorporate Third Party Software, are made expressly for the benefit of, and are enforceable by, the Third Parties, The Third Parties retain title to the Third Party Software. Unless the Third Parties extend a pass- through warranty covering the Third Party Software to Customer, all Third Party Software is provided "AS IS" without warranty of any kind, and the Third Parties disclaim all warranties, either express or implied, including but not limited to the implied warranties of merchantability, title, non - infringement or fitness for a particular purpose with regard to the Third Party Software. The Third Parties shall not have any liability for special, indirect, punitive, incidental or consequential damages. 2.4 EXCEPT AS PROVIDED IN SECTION 2.2 ABOVE, IF CUSTOMER TRANSFERS POSSESSION OF ANY COPY OF THE LICENSED SOFTWARE TO ANOTHER PARTY WITHOUT WRITTEN CONSENT OF GE, THIS LICENSE IS AUTOMATICALLY TERMINATED. Any attempt otherwise to sublicense, assign or transfer any of the right, duties or obligations hereunder is void. 2.5 If the Licensed Software or associated documentation is provided to any U.S. Government entity, unit, or agency, the restrictions set forth at section 52.227 -19(c) ( "Commercial computer software - restricted rights ") of the Federal Acquisition Regulations (FARs) shall apply. If the Licensed Software or associated documentation is provided to the U.S. Government, Department of Defense (DOD), or any entity, unit, or agency Packet Page -2856- 12/11/2012 Item 16.C.4. thereof, the restrictions set forth at section 252.227 -7015 ('Technical Data - Commercial Items ") and section 252.227- 7013(c)(1) ( "Technical Data - Restricted Rights ") of the DOD FAR Supplement (DFARS) shall also apply. 3. WARRANTY 3.1 GE warrants that the Application Software will be in substantial conformance with the manual pertaining thereto as of the date of shipment by GE. If, within ninety (90) days of date of shipment it is shown that the Application Software does not meet this warranty, GE will, at its option, either correct the defect or error in the Application Software, free of charge, or make available to Customer satisfactory substitute software, or, if none of the foregoing is reasonably available, return to Customer all payments made as license fees and terminate the license with respect to the Application Software affected. GE does not warrant that operation of the Application Software will be uninterrupted or error free or that it will meet Customer's needs. All other portions of the Licensed Software are provided "as is" without warranty of any kind. 3.2 GE warrants that the media on which the Application Software is delivered will be free from defects in material or workmanship under normal use and service for a period of ninety (90) days from the date of delivery. If any defects are discovered in the media and reported by Customer within ninety (90) days after delivery, GE shall, at no cost to Customer, upon return of media to GE, replace the media and deliver to Customer a new and complete copy of the Application Software. 3.3 Any modification to the Licensed Software by the Customer without the express written consent of GE shall void the warranty. 3.4 WITH RESPECT TO THE SOFTWARE WHICH IS THE SUBJECT OF THIS AGREEMENT, THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY. NO WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE SHALL APPLY. 4. LIMITATION OF LIABILITY 4.1 IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE SHALL GE OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR ANY PART THEREOF OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWN TIME COSTS, OR CLAIMS OF CUSTOMER'S CUSTOMERS AND TRANSFEREES FOR SUCH DAMAGES EVEN IF GE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 4.2 EXCEPT AS PROVIDED IN SECTION 5, INDEMNITY, IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL GE'S LIABILITY TO CUSTOMER FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, OR FROM ITS PERFORMANCE OR BREACH, OR FROM THE LICENSED SOFTWARE OR ANY PART THEREOF, OR FROM ANY SERVICE FURNISHED HEREUNDER, EXCEED THE FEES PAID BY CUSTOMER FOR THE LICENSED SOFTWARE. ALL SUCH LIABILITY SHALL TERMINATE UPON THE TERMINATION OF THE WARRANTY PERIOD AS SET FORTH IN SECTION 3. 4.3 If GE furnishes Customer with advice or other assistance which concerns Licensed Software or any portion thereof supplied hereunder or any system or equipment on which any such software may be installed and which is not required pursuant to this Agreement, the furnishing of such advice or assistance will not subject GE to any liability, whether in contract, indemnity, warranty, tort, (including negligence), strict liability, or otherwise. 4.4 The products to be licensed or sold hereunder are not intended for use in any nuclear, chemical or weapons production facility or activity, or other activity where failure of the products could lead directly to death, personal injury or severe physical or environmental damage. If so used, GE disclaims all liability for any damages arising as a result of the hazardous nature of the business in question, including but not limited to nuclear, chemical or environmental damage, injury or contamination, and Customer shall indemnify, hold harmless and defend GE, its officers, directors, employees and agents against all such liability, whether based on contract, indemnity, warranty, tort (including negligence), strict liability, or otherwise, regardless of whether GE had knowledge of the possibility of such damages. The foregoing indemnification shall not constitute a waiver of sovereign immunity or extend the parties liability beyond the limits established in Section 768.28 of the Florida Statutes. Packet Page -2857- 12111/2012 Item 16.C.4. 5. INDEMNITY 5.1 GE warrants that the Application Software shall be delivered free of any rightful claim for infringement of any United States patent, copyright, trademark or trade secret. If notified promptly in writing and given authority, information and assistance, GE shall defend, or may settle, at its expense, any suit or proceeding against Customer so far as based on a claimed infringement which would result in a breach of this warranty and GE shall pay all damages and costs awarded therein against Customer due to such breach. In case the Application Software is in such suit held to constitute such an infringement and its use is enjoined, GE shall, at its expense and option, either procure for Customer the right to continued use, or replace same with a non - infringing product or part, or modify the Application Software so that it becomes non - infringing, or remove the software and refund the license charge pertaining thereto (less reasonable depreciation for any period of use) and any transportation costs separately paid by Customer. The foregoing states the entire liability of GE for patent, copyright, trademark and trade secret infringement by the Licensed Software or any part thereof. 5.2 The indemnity under the preceding paragraph shall not apply to any use of Application Software in conjunction with any other product in a combination not furnished by GE as a part of this transaction. As to any such use in such combination, or any improper or unauthorized use, installation, or operation of the Application Software, GE assumes no liability whatsoever for patent, copyright, trademark or trade secret infringement and Customer will hold GE harmless against any infringement claims arising therefrom (including, but not limited to reasonable attorney's fees). The foregoing indemnification shall not constitute a waiver of sovereign immunity or extend the parties liability beyond the limits established in Section 768.28 of the Florida Statutes. 6. TERM AND TERMINATION 6.1 Customer may terminate the license granted hereunder at any time by destroying the Licensed Software together with all copies thereof and notifying GE in writing that all use of the Licensed Software has ceased and that the Licensed Software has been destroyed. 6.2 GE, upon thirty (30) days notice, may terminate this Agreement and /or any license hereunder if Customer fails to perform any obligation or undertaking to be performed by it under this Agreement or if Customer attempts to assign this Agreement without the prior written consent of GE. Within twenty (20) days after any such termination of this Agreement, Customer shall certify in writing to GE that all use of the Licensed Software or the affected portion thereof has ceased, and that the Licensed Software or portion thereof has been returned or destroyed, in accordance with GE's instructions. 6.3 Sections 4, 6 and 7 of this Agreement shall survive any expiration or termination and remain in effect. Termination of this Agreement or any license hereunder shall not relieve Customer of its obligation to pay any and all outstanding charges hereunder nor entitle Customer to any refund of such charges previously paid. 7. EXPORT If Customer intends to export (or reexport), directly or indirectly, the software products or technical data relating thereto supplied hereunder or any portion thereof, it is Customer's responsibility to assure compliance with U.S. and any other applicable governmental export control laws and, if appropriate, to secure any required export licenses or approvals in Customer's own name. Customer is also responsible for the accuracy and completeness of any information or certification Customer provides for purposes of export control compliance. 8. PAYMENT TERMS All quoted charges arising pursuant to this Agreement are due upon delivery of the Licensed Software or any hardware delivered as part of the same Customer order (whichever is earlier) to which such charges pertain and shall be paid in accordance with Section 218.70, Fla. Stats., otherwise known as the "Local Government Prompt Payment Act. ". Prices quoted are exclusive of all sales, use, and excise taxes (and any other assessments in the nature of taxes however designated). Customer shall pay all import duties and registration fees and all sales, use and excise taxes (and any other assessments in the nature of taxes however designated) arising from the licensing of the Licensed Software hereunder, exclusive of taxes based on GE's net income. Collier County, Florida as a political subdivision of the State of Florida, is exempt from payment of Florida sales tax to its vendors under Chapter 212, Florida Statutes, Certificate of Exemption #21 -07- 019995 -53c. 9. FORCE MAJEURE GE shall not be responsible for failures to fulfill its obligations under this Agreement due to causes beyond its control. 10. GOVERNING LAW This Agreement shall be governed by the laws of the State of Florida, without regard to its conflict of law provisions. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Packet Page -2858- 12/11/2012 Item 16.C.4. 11. ENTIRE AGREEMENT This Agreement constitutes the entire Agreement with respect to the subject matter hereof and supersedes all proposals, oral or written, all previous negotiations and all other communications between the parties with respect to the subject matter hereof. These terms and conditions shall prevail, notwithstanding any different, conflicting, or additional terms and conditions that may appear on any purchase order or other instrument submitted by Customer. Deviation from these terms and conditions are not valid unless confirmed in writing by an authorized representative of GE. The invalidity of any portion of this Agreement shall not affect the remainder of this Agreement. CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CUSTOMER FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN CUSTOMER AND GE AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. FURTHER, NO CHANGE OR AMENDMENT TO THIS AGREEMENT SHALL BE EFFECTIVE UNLESS AGREED TO BY WRITTEN INSTRUMENT SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF GE AND CUSTOMER. Should you have any questions concerning this Agreement, you may contact GE by contacting: Legal Department, GE Intelligent Platforms, 2500 Austin Drive, Charlottesville, VA 22911 or 1- 800-433 -2682. Packet Page -2859- x Intelligent Platforms Please make purchase order out to and remit payment to: GE Intelligent Platforms P.O. Box 641275 Pittsburgh, PA 15264 *Please reference quote number on your purchase order Send purchase orders to: orders@graymattersystems.com Fax: 412-202-5053 Gray Matter Systems LLC 416 Thorn St. Sewickley, PA 15143 Quote Number 00000225 Prepared By Account Name Collier County Water Department (SF) Phone Created Date 11/20/2012 E -mail Bill To 3327 Tamiami Trl E Fax Naples, FL 34112 United States Opportunity Owner Dave Wylde Total Price Grand Total 12/11/2012 Item 16.C.4. John Gehan (412) 741 -2410 igehan@graymaftersystems.com (412) 202 -5053 Subject to GE Intelligent Platforms and Collier County Agreed Upon Terms and Conditions -Key numbers are required at time of upgrade and step -up orders. -New licenses will be on USB style keys - Please specify if software is to be deployed on one PC - If on multiple PCs, which pieces of software will be deployed together. Payment Terms: Net 30 F.O.B.: Factory Prepay and Add Quote is valid 30 days from the creation date A written purchase order must be received before shipment will be authorized. Packet Page -2860- $60,342.03 $60,342.03 12/11/2012 Item 16.C.4. EXECUTIVE SUMMARY Recommendation to waive competition and authorize sole source contract renewals with GE Intelligent Solutions for an estimated $100,000 and GrayMatter Systems for an estimated $195,000 for existing software licensing for the Public Utilities Division's Supervisory Control and Data Acquisition systems, SCADA Software and Support Renewal Projects 71056 and 72541. OBJECTIVE: To renew existing software licensing for Programmable Logic Controller (PLC) based Supervisory Control and Data Acquisition (SCADA) systems used to manage water and waste water operations, ensure compliance, and sustain level of service standards for all raw water treatment and distribution, wastewater collection, treatment and plant operations, and irrigation quality (IQ) water distribution. CONSIDERATIONS: On June 24, 2008, Agenda Item 10G, the Board of County Commissioners (Board) adopted the 2008 Water and Wastewater Master Plan updates that identified the requirements to maintain a compliance driven SCADA program. The proposed scope of work is consistent with the 2008 Water Master Plan Update, Project 71056 "Water SCADA Software and Support Renewal" Section 8, Table 8 -2, page 3 of 5, line 91; and with the 2008 Wastewater Master Plan Update, Project 72541 "Wastewater SCADA Software and Support Renewal" Section 8, Table 8 -2, page 3 of 5, line 71. The proposed scope is also consistent with the 2010 Potable Water CIP Update, page 3 of 4, line 90; and the 2010 Wastewater CIP Update, page 3 of 4 line 107, as identified in the 2011 User Fee Rate Study. The Public Utilities Division (PUD) utilizes PLC -based SCADA systems to operate, control, monitor, and maintain all critical and dynamic processes required to provide and sustain compliant water delivery and wastewater reclamation at four treatment plants (two water, two wastewater); in two pressurized distribution systems (potable water and IQ water); and at the Collier County Landfill, all operating 24 hours a day, 365 days a year. The field of Information Technology (IT) security and communication standards are changed so frequently, the software must migrate to function within those changes. These agreements ensure that the existing software is maintained in compliance with all required regulations. This renewal also provides the PUD the opportunity to maintain an industry standard approach to versioning and software platform acceptance by removing the cost of complete redeployment of different PLC -based SCADA software which would cost in excess of $5 million, based on engineering estimates and the number of SCADA systems needing support. GE Intelligent Platforms is the sole source provider for software licensing and customer support for the "iFix" SCADA software systems. The GE Intelligent Solutions sole source contract renewal will cover all 55 installed licenses and provide access to critical system updates and support as needed. The total amount of the contract renewal and system updates and support will not exceed $100,000 annually for five years. The contract renewal cost is based on a per licensing unit amount, while software support is provided and billed on an as requested basis. Packet Page -2861- 12/11/2012 Item 16.C.4. GrayMatter Systems is the sole source provider and authorized representative for software licensing and customer support for multiple third -party SCADA software systems that interface with GE Intelligent Platform's iFix systems. Software systems provided solely by GrayMatter Systems are GSE "RTU" for remote distribution system management; and "XL Reporter," an application in use to generate and standardize reporting. In addition., GrayMatter Systems is also an authorized representative in Florida for "WIN91I," the emergency notification software currently in use; "IntraVue," the SCADA communications monitoring and management application currently in use and technical support for iFix. All iFix purchases are made directly through GE Intelligent Platforms. Given GrayMatter Systems is the only authorized representative and the sole source provider of all of PUD's PLC -based SCADA software and critical third party SCADA applications, as well as an authorized support provider of iFIX, GrayMatter Systems is the most qualified provider of technical support. Please see attached sole source and authorized distributor letters. The GrayMatter contract renewal will provide continued as needed technical support and management of all reporting applications, extended distribution monitoring, network management applications, and emergency notifications at each plant. Each of these applications are essential in supporting the continued compliance of the PUD. The total amount of the contract renewal and system updates and as needed support wil not exceed $195,000 annually for five years. Pursuant to Section V(A)(4) of the Collier County Purchasing Policy authorizes the Board to waive formal competition if it is in the best interest of the county. Section V(C) further authorizes a waiver for single source commodities. Staff recommends that the Board waive formal competition and authorize this sole source contract renewal for the reasons stated above. FISCAL IMPACT: Funding is available in and is consistent with the FY2012 Capital Budget approved by the Board on September 22, 2011. The sources of funding are the Water User Fee Fund 412 and Wastewater User Fee Fund 414. A budget amendment is required from Project 70045, Fund 412, in the amount of $92,000 to Project 71056 and from Project 73045, Fund 414 in the amount of $55,000 to Project 72541. GROWTH MANAGEMENT IMPACT: This project meets current Growth Management Plan standards to ensure the adequacy and availability of viable public facilities. CERTIFICATION BY THE PURCHASING DIRECTOR: By approval of this Executive Summary, the Purchasing Director certifies that: 1. The licensing of GE Intelligent Platforms software is financially in the best interest of the Couty; and 2. GrayMatter is the sole source distributor of Intra /VUE, CSE and Semaphore, and SyTech in Florida. LEGAL CONSIDERATIONS: This agenda item has been reviewed by the County Attorney, is Legally sufficient, and requires majority vote for approval. -JAK Packet Page -2862- 12/11/2012 Item 16.C.4. RECOMMENDATION: That the Board of County Commissioners, as Ex -officio the Governing Board of the Collier County Water -Sewer District: • waive competition and award sole source contract renewal to GE Intelligent Solutions, for a not to exceed amount of $100,000 annually for five years for iFix software licensing and support. • waive competition and award sole source contract renewal to GrayMatter Systems, for a not to exceed amount $195,000 annually for five years for Win911, IntraVue, RTU, and XL Reporter software and support, and for as needed iFix support. • authorize the Chairman to sign and execute the attached agreements after review and approval by the County Attorney's Office; and, • Approve the necessary Budget Amendment to transfer funds in the amounts of $92,000 from Project 70045 FDOT Utility Relocations Projects -Water to Project 71056 Water SCADA software & support contracts and $55,000 from Project 73045 FDOT Utility Relocation Projects- Wastewater to Project 72541 WW SCADA software & support contracts. Prepared by: Aaron Cromer, Principal Project Manager, Planning and Project Management Department, Public Utilities Division Attachments: Sole Source letter from GE Intelligent Platforms Sole Source letter from WIN91 l Sole Source letter from IntraVue Sole Source letter from RTU Sole Source letter from XL Reporter iFIX Business Case Proposed GE Intelligent Platforms contract Packet Page -2863- March 7, 2012 Aaron Cromer Principal Project Manager Collier County Public Utilities Division Planning and Project Management Department 3339 East Tomiami Trail, Suite 303 Naples, FL 34112 Mr. Cromer: GE 12/11/2012 Item 16.C.4. Intelligent Platforms 325 Foxborough Blvd. Foxborough, MA 02035 USA T 508 698 3322 F 508 698 6940 www.ge - ip.com This letter is to inform the Collier County Public Utilities Division that GE Intelligent Platforms, Inc is the sole manufacturer of Products listed below and the only company providing engineering & technical support/service under the name GlobalCare, for these products. • Proficy HMI /SCADA -iFIX Software Proficy iFIX WebSpoce • Proficy Historian Software • Proficy Portal Software • Proficy Batch Software • Proficy Change Management Software • Proficy Production Management (Efficiency, Production, Tracker, Order Execution, Quality) • Proficy Workflow GlobalCare Software Maintenance Agreements for products listed above Gray Matter Systems is the only Authorized Representative for the State of Florida for the above products. If you have any questions or require additional information, please do not hesitate to contact me. Sincerely, Lawrence T. Gallagher GE Intelligent Platforms Channel Development Manager T 508 698 7459 F 508 698 6940 C 781929 9293 Email Lawrence.Gallagher @GE.com 325 Foxborough Blvd Foxborough, MA 02035 Appropriate Legol Entity Packet Page -2864- cBio Q A"Y DM AT T i=— Q Y i T E M -, Remit Payment Only To: GE Intelligent Platforms, Inc. P.O. Box 641275 Pittsburgh, PA 15264 -1275 Tel.1 - 877 - 641 -2804 Fax:(407) 386 -6723 Collier County Utilities PO BOX 413016, Finance Dept NAPLES FL, 34101 -3016 USA Bill to Contact: Bill to CSN: 14004500 Quote Expiry 6/5/2012 Sales Representive Gray Matter Systems - HQ PARENT ORGANIZATION j 12/11/2012 Item 16.C.4. Quote No. Quote Date I ..... I I 1 r, -- 1- 1476384024 1 3/7/2012 1 1 Gehan.John Send Purchase Order and /or Correspondence to: Gray Matter Systems - Florida, Sebring -19024 416 Thorn Street, P.O. Box 583 Sewickley PA, 15143 USA Collier County Utilities PO BOX 413016, Finance Dept NAPLES FL, 34101 -3016 USA End User Contact End User CSN: 14004500 Currency USD Primary Sales Repres Gehan, John 1IL Lna Date: 7/25/2013 Senal # : 200098438 GlobalCare Level: > Complete Start Date: "' 7/2612012 End Date: 7/2512013 Serial #: 200045885 GlobalCare Level: Complete Start Date; 7/2612012 End Date: 7/25/2013 PPS Keys 0 GG fi B � OIJ"t279t141ft1a2,, $ �ecurli� Key �U14 11SB '16 00"0 ; '1 � 0 DU s<OO110000000ioballlaare l�lete 3 11w 6f2J s62 83 Serial #: 200011103 GlobalCare Level: Complete Start Date: 7/26/2012 End Date: 7/25/2013 Packet Page -2865- s Serial #: 200098442 GlobalCare Level: , Complete Start Date: ' 7 /26/2012 End Date: 7/25/2013 Serial # : <200098441 GlobalCare Level: ' Complete Start Date: 7/26/2012 End Dater 7/25/2013 plete /2013 Packet Page -2866- -- 12/11/2012 Item 16.C.4. ��� ��f���110�13 � I.R'iiij� l " f_{iY�#j`�'.m, '�: -'�' u;, _ � "� d � +� ,p{�.•.. Serial #; 200105463 GlobalCareLeveL• Complete Start Date:':' 7/26!2012 End Date: ' 7/25/2013 kk � �w� „•� y;y - k�+ ��y� �y� ,fit u��'�d 1631 10013000000 ©IgICareomp1e K�� 7 �t ��r;_s 6 #G Serial # :— 200098433 GlobalCare Level: Complete Start Date: 7/26/2012 End Date:. ' 7125/2013 Serial #: 200098458 GlobalCare Level: Complete Start Date: 7/26/2012 End Date: 'i 7/25/2013 16 00121'3041 002 s : 11A�Ikl7 � r l d4 4 F a $ -b 381 1C64F1y1DWNL111t94fIt1sSCAilAliililITlltidle (U�meltt(Ail4�rtt9 1$ 31 1LOt11A0D0000 �GiftabalCarelomplete ��r,36 9 �9 .... -. .:tt �f... ,> ,k2.L,+„�r sw'i,: ,.,ab "'$ �.w..t'..:F..t" ..... ,......�RkT'. .: Serial #: 200105462 GlobalCare Level: Complete Start Date: ; 7/26/2012 End Date: 7/25/2013 Serial # 200098443 GlobalCare Level: Complete Start Date: ` 7/26/2012 End Date: 7/25/2013 fltl f 19�400�2 (Cey M is z it s i5 ti OR- 1Cfr4�d)'LQLltl�lLit47�A �1= 1".h1s SC7�DA tlniimite�l� @lo�7mz:nt- (M4iP- ,art� � € � u � w � i �� � Op 20 21 1004]ta0D001)0 sipbalt anti Ctmplete4_ .... = .:y�i9S4 1 5 34 Serial #: 200098454 GlobalCare Level: Complete Start Date: 7/26/2012 End Date: 7/25/2013 2 131DOti IDODOf100 GlabalCara Complete Serialy# ; 100217452 Glol :Start Date: 7/26/2012 Packet Page -2867- :I: Complete e 7/25/2013 rs. 0 " Serial #: 200098456 GlobalGare Level: Start Date: 7 /26/2012 End Date: Packet Page -2868- 12/11/2012 Item 16.C.4. npiete .5/2013 rmplete .... 25/2013 MEMO 12/11/2012 Item 16.C.4. GI IU UMM f 1 r;JI LV:I J Serial #:. 200098436 GlobalCare Level: ' Complete 'Start Date: 7/26/2012 End Date: 7/25/2013 'Serial # Start Date: 200098455 GlobalCare Level: 7/26/2012 End Date: GlobalCare Lev( End Dat GlobalCare Level: End Date: End' PPS Serial # 100217455 GlobalCare Level: Complete Start Date: 7/26/2012 End Date: 7125/2013 PPS Kevs 0 Serial #: 200098444 GlobalCare Level: '' Complete Start Date: 7/26/2012 End Date: 7/25/2013 Packet Page -2869- 12/11/2012 Item 16.C.4. Header Notes: Quote Total: $60,342.03 C +ents: Thin quotation does not include any freight charges or applicable taxes. Please include the Quotation Number from this document on your Purchase Order. This Quotation is expressly conditioned upon Customer's acceptance of the following attached terms and conditions: Conditions of Sale for Equipment and Services, Software License Agreement for all software, and Proficy GlobalCare Complete Support Terms and Conditions for all GlobalCare support. GE Intelligent Platforms, Inc. is not bound by any terms on Customer's order which attempt to impose any condition at variance with GE Intelligent Platforms, Inc.'s terms attached hereto. GE Intelligent Platforms, Inc: s failure to objectto provisions contained in any of Customer's forms shall not be deemed an acceptance of any of Customer's terms or a waiver of the provisions of GE Intelligent Platforms, Ines terms and conditions which shall constitute the entire, final, and exclusive statement of the agreement between the parties. Packet Page -2870- GE Intelligent Platforms, Inc. 12/11/2012 Item 16.C.4. GEIP, -- ,— r ... -- - - -- -- - Conditions of Sale for Equipment and Services The sale of any services and equipment ordered by the Customer is expressly conditioned upon the terms and conditions contained or referred to herein. Any additional or different terms and conditions set forth in the Customer's purchase order or similar communication are objected to and will not be binding upon GE Intelligent Platforms, Inc. (herein called GE) unless specifically assented to in writing by GE's authorized representative. Authorization by the Customer, whether written or oral, to furnish services and incidental equipment will constitute acceptance of these terms and conditions. 1. WARRANTY 1.1 GE warrants to the Customer that GE equipment and services sold will be free from defects in material, workmanship and title and will conform to any mutually agreed upon specifications. If any failure to meet this warranty (excluding any defects in title) appears within one (1) year from the date of shipment of the equipment or ninety (90) days from completion of the services, as applicable, (or for software refer to Section 10.5 herein), GE will correct any such failure by reperforming any defective portion of the services furnished, and, with respect to equipment, at its option, (i) by repairing any defective or damaged part or parts of the equipment, or (ii) by making available, F.O.B. Customer's plant or other point of shipment, any necessary repaired or replacement parts. If reperformance is not practicable, GE will furnish without charge services in an amount essentially equal to those which, in GE's sole judgment, would have been required for reperformance. The warranties and remedies set forth herein are conditioned upon: (i) proper storage, installation, use and maintenance, and conformance with any applicable recommendations of GE; and (ii) Customer promptly notifying GE of any defects and, if required, promptly making the equipment available for correction. 1.2 GE warrants non -GE manufactured equipment only to the extent that the manufacturer's warranty allows GE to transfer such manufacturer's warranty to Customer. GE will pass through to Customer any such warranties. Customer's sole remedy for breach of such warranty shall be the remedy offered by and available from the manufacturer, if any. GE shall have no liability, whether in contract, tort, negligence, or otherwise, to Customer with respect to non -GE manufactured equipment. 1.3 The preceding paragraphs set forth the exclusive remedy for all claims (except as to title) based on failure of, or defect in, equipment or services sold hereunder, whether the failure or defect arises before or during the warranty period, and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. Upon the expiration of the warranty period, all such liability shall terminate. EXCEPT ASSET FORTH IN SECTION 2 BELOW OR IN ANY STATEMENT OF WARRANTY ACCOMPANYING GE EQUIPMENT, THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY. GE DOES NOT WARRANT ANY EQUIPMENT OR SERVICES OF OTHERS WHICH CUSTOMER HAS DESIGNATED. 2. INTELLECTUAL PROPERTY 2.1 GE shall retain exclusive rights to its products, intellectual property rights (including copyrights, trademarks, patents and trade secrets), schematics, logic diagrams, and manufacturing processes, and to all modifications thereto funded by Customer's purchase order. GE shall retain ownership and does not convey, nor does Customer or Customer's final customer obtain any right, title, or interest in, software or firmware, specifications or data furnished or developed by GE either prior to or in the performance of Customer's order. No schematics or source code shall be furnished, unless pursuant to a separate license as agreed by GE. Subject to the performance of its obligations hereunder, Customer shall have a license to use GE's intellectual property rights only as they are embodied in the products and for no other purpose. Customer shall not modify or reverse engineer the products. 2.2 GE warrants that any GE equipment sold hereunder, and any part thereof, shall be free of any rightful claim of any third party for infringement of any United States patent. If promptly notified in writing and given authority, information and assistance, GE shall defend, or may settle, at its expense, any suit or proceeding against the Customer based on a claimed infringement which would result in a breach of this warranty, and GE shall pay all damages and costs awarded therein against the Customer due to such breach. In case any equipment is in such suit held to constitute such an infringement and the use for the purpose intended of said equipment is enjoined, GE shall, at its expense and option, either procure for the Customer the right to continue using said equipment, or replacing same with noninfringing equipment, or modify same so they become noninfringing, or remove the equipment and refund the purchase price (less reasonable depreciation for any period of use) and any transportation costs separately paid by the Customer. The foregoing states the entire liability of GE for patent infringement. 2.3 The preceding paragraph shall not apply to any equipment specified by the Customer and not of GE manufacture, or manufactured to the Customer's design, or to the use of any equipment furnished hereunder in conjunction with any other equipment in a combination not furnished by GE as part of the transaction. As to any equipment, or use in such combination, GE assumes no liability whatsoever for patent infringement and the Customer will hold GE harmless against any infringement claim arising therefrom. as Packet Page -2871- 12/11/2012 Item 16.C.4. 3. EXCUSABLE DELAYS 3.1 GE shall not be liable for delay due to: 01 causes beyond its reasonable control, or (ii) acts of God, acts of the Customer, prerequisite work by others, acts of civil or military authority, government priorities, fires, strikes or other labor disturbances, floods, epidemics, war, riot, delays in transportation or car shortages, or (iii) inability to obtain or delay in obtaining, due to causes beyond its reasonable control, suitable labor, materials, :ilities. In the event of any such delay, the time of performance shall be extended for a period equal to the time lost by reason of the delay. 3.2 In the event GE is delayed by acts of the Customer or by prerequisite work by other contractors or suppliers of the Customer, GE shall be entitled to an equitable price adjustment in addition to extension of the time of performance. 4. SALES AND SIMILAR TAXES 4.1 In addition to any price specified herein, the Customer shall pay, or reimburse GE for the gross amount of any present or future sales, use, excise, income, value added or other similar tax applicable to the price, sale or furnishing of any services or equipment hereunder, or to their use by GE or the Customer, or the Customer shall provide GE with evidence of exemption acceptable to the taxing authorities. If Customer fails to provide GE with requested proof of payment or exemption, GE may pay the taxes due and obtain reimbursement from Customer. Customer shall pay all import duties and registration fees arising from the sale or furnishing of any services or equipment hereunder. • ' �P�tf. Y�► 1�1;�LTii•I1i►:11>�KiLI�1�[i]i• 5.1 Except to the extent otherwise specified by GE in its quotation, invoices for product shall be issued pro rata as shipments are made. If GE consents to delay shipments after completion of any equipment, payment shall become due on the date when GE is prepared to make shipment. In the event of any such delay, title shall pass and equipment shall be held at Customer's risk and expense. Unless otherwise stated in writing, payment terms are net thirty (30) days from the date of invoice. All payments shall be made without set off for claims arising out of other sales by GE. 5.2 If the financial condition of the Customer at any time does not, in the judgment of GE, justify continued performance on the terms of payment previously agreed upon, GE may require full or partial payment in advance or shall be entitled to terminate the contract and receive termination charges. In the event of bankruptcy or insolvency of the Customer or in the event any proceeding is brought against the Customer, voluntarily or involuntarily, under the bankruptcy or insolvency laws, GE shall be entitled to terminate the agreement at any time during the period allowed for filing claims against the estate and shall be entitled to payment for its termination charges. 6. LIMITATIONS OF LIABILITY F 1 GE'S LIABILITY ON ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, OR THESE AS AND CONDITIONS, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY EQUIPMENT OR SERVICES COVERED BY OR FURNISHED UNDER THE CONTRACT OR ANY EXTENSION OR EXPANSION THEREOF (INCLUDING REMEDIAL WARRANTY EFFORTS), SHALL IN NO CASE EXCEED THE CONTRACT PRICE OF THIS AGREEMENT, EXCEPT AS TO TITLE TO ANY EQUIPMENT FURNISHED, ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD SPECIFIED IN SECTION 1 ABOVE. 6.2 IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL GE, ITS EMPLOYEES AND SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, COST OF PURCHASED POWER, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF CUSTOMERS OF THE CUSTOMER FOR SUCH DAMAGES AND THE CUSTOMER WILL INDEMNIFY GE, ITS EMPLOYEES AND SUPPLIERS AGAINST ANY SUCH CLAIMS FROM THE CUSTOMER'S CUSTOMERS. IF THE EQUIPMENT OR SERVICES BEING PROVIDED BY GE WILL BE FURNISHED BY THE CUSTOMER TO A THIRD PARTY BY CONTRACT OR RELATE TO A CONTRACT BETWEEN THE CUSTOMER AND A THIRD PARTY, THE CUSTOMER SHALL OBTAIN FROM SUCH THIRD PARTY A PROVISION AFFORDING GE AND ITS SUPPLIERS THE PROTECTION OF THIS AND THE PRECEDING PARAGRAPH 6.1, 6.3 The equipment to be licensed or sold hereunder are not intended for use in any nuclear or weapons production facility or activity, or other activity where failure of the equipment could lead directly to death, personal injury or severe physical or environmental damage. If so used, GE disclaims all liability for any damages arising as a result of the hazardous nature of the business in question, including but not limited to nuclear, chemical or environmental damage, injury or contamination, and Customer shall indemnify, hold harmless and defend GE, its officers, directors, employees and agents against all such liability, whether based on contract, warranty, tort (including negligence), or any other legal theory, regardless of whether GE had knowledge of the possibility of such damages. 6.4 If GE furnishes the Customer with advice or assistance concerning any equipment or systems which is not required GEIP -Equipment and Services- 111017 -2- Packet Page -2872- 12/11/2012 Item 16.C.4. pursuant to the agreement, the furnishing of such advice or assistance will not subject GE to any liability, whet...... tort (including negligence), strict liability or otherwise. 7. DELIVERY 7.1 Delivery of products will be made FCA GE's facility (Incoterms 2010). Title to products shipped by GE from the United States shall pass to Customer immediately after each item departs from the territorial land, seas, and overlying airspace of the United States. Title to all other products shall pass when the product is made available for shipment at the point of shipment. Title to services shall pass pro rata as the services are performed. &EXPORT 8.1 Customer shall not export (or reexport), directly or indirectly, the equipment supplied hereunder or any portion thereof, without first obtaining GE's written consent and any required license or approvals from the United States Government. 9. U.S. GOVERNMENT CONTRACTING 9.1 If Customer is a U.S. Government entity or elects to sell products or services provided hereunder to the U.S. Government or to a contractor selling to the U.S. Government, the following provisions apply: (a) Customer agrees that all products and services provided by GE meet the definition of "commercial- off - the - shelf" (COTS) or "commercial item" as defined in FAR 2.101, and that the subparagraph terms of FAR 52.212 -5(e) or FAR 52.244 -6 (or, for orders from the U.S Government, FAR 52.212 -5 and FAR 52.212 -4 with tailoring to the extent permitted by FAR 12.302 by replacing all paragraphs except those listed in FAR 12.302(b) with these Conditions of Sale), and (subject to subsection (e) below) DFARS 252.212- 7001(c) or DFARS 252.244 -7000, whichever are applicable, apply only to the extent applicable to COTS or commercial items and only as appropriate for the dollar value of this order; (b) with regard to any terms related to Buy American Act or Trade Agreements, the country of origin of products is unknown unless otherwise specifically stated in writing by GE; (c) Customer agrees that any services offered by GE are exempt from the Service Contract Act of 1965 (FAR 52.222 -41); (d) Customer agrees that this sale is not funded, in whole or in part, by the American Recovery and Reinvestment Act unless otherwise set forth in a written agreement of the parties; (e) GE makes no representations, certifications or warranties whatsoever with respect to the ability of its goods to satisfy DFARS 252.225 -7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals; and (f) Customer is solely and exclusively responsible for compliance with any other applicable statutes or regulations governing sales to the U.S. Government, and GE makes no representations, certifications or warranties whatsoever with respect to the ability of its goods, services or prices to satisfy any such statutes and regulations other than those contained herein. 10.GENERAL 10.1 GE reserves the right to subcontract any of the work to one or more subcontractors. 102 The delegation or assignment by Customer of any or all its duties or rights hereunder without GE's prior written consent shall be void. 10.3 Any information, suggestions or ideas transmitted by the Customer to GE, its agents, employees or subcontractors are not to be regarded as secret or submitted in confidence except as may be otherwise provided in a writing signed by a duly authorized representative of GE. 10.4 GE shall comply with all applicable state and federal laws, including but not limited to, the Fair Labor Standards Act of 1938, as amended, the Occupational Safety and Health Act of 1970 (OSHA), laws related to nonsegregated facilities and equal employment opportunity (including the seven paragraphs appearing in Sec. 202 of Executive Order 11246, as amended), and all standards, rules, regulations, and orders issued pursuant to such state and federal laws. 10.5 Software furnished, including firmware, shall be provided pursuant to GE's applicable software license agreement, the terms and conditions of which shall take precedence over these Conditions of Sale with respect to the provision of such software. 11. COMPLETE AGREEMENT 11.1 This Agreement, along with these terms and conditions and any other terms and conditions or documents referenced in said agreement, contains the complete agreement between the parties, and no modification, amendment, recision, waiver or other change will be binding on GE unless assented to in writing by GE's authorized representative. Any oral or written representation, warranty, course of dealing or trade usage not contained or referenced herein will not be binding on GE. The invalidity, in whole or part, of any of the foregoing sections or paragraphs of the contract will not affect the remainder of such article or paragraph or any article or paragraph of the contract. 11.2 This Agreement shall be governed by the laws of the State of New York, without regard to its conflict of law provisions. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. GEIP -Equipment and Services - 111017 Ica Packet Page -2873- 12/11/2012 Item 16.C.4. GE Intelligent Platforms, Inc. ( "GE ") - --- - - - - -- End User License Agreement Ttte I license by GE and /or usage by Customer of any software is expressly conditioned upon the terms and conditions contained or referred to herein. Any additional or different terms and conditions set forth in the Customer's purchase order or similar communication are objected to and will not be binding upon GE Intelligent Platforms, Inc. (herein called GE) unless specifically "ed to in writing by GE's authorized representative. Authorization by the Customer, whether written, electronic or oral, to furnish software and /or usage of the software by Customer will ute acceptance of these terms and conditions. 1. DEFINITIONS 1.1 "Application Software" shall mean those portions of the Licensed Software, in object code form only, created by GE. 1.2 "Application Templates" shall mean the part numbered software components created by GE for a specific application, which can include forms, displays, workflows, reports, user activities, device configuration, and system configuration. 1.3 "Designated Computer" shall mean the one (1) computer upon which Customer shall run the Licensed Software, except in the case of MAX -ON Software for which "Designated Computer" shall mean the one (1) redundant PLC system consisting of one or two PLC CPU's upon which Customer shall run the Licensed Software. 1.4 "Third Party Software" shall mean software, including but not limited to operating systems, owned or licensed by a third party that is supplied to Customer by GE and which is not branded as GE software, and not integrated into the Application Software. 1.5 "Licensed Software" shall mean the Application Software plus any other software (including Third Party Software), in object code form only, and any Application Templates supplied by GE pursuant to this Agreement. If no operating system software is included in the software provided under this Agreement, Customer must make provision for any required operating system software licenses. 2. LICENSE 2.1 Except as provided in Section 2.2 below, Customer is granted only a personal, non transferable, nonexclusive license to install and use one copy of the Licensed Software only on the Designated Computer. Customer may make one copy of the Licensed Software in machine readable form for backup purposes in support of Customer's use of the licensed Software on the Designated Computer. No other copies shall be made unless authorized in writing by GE. Customer may not reverse engineer, decompile or reverse compile or disassemble, re- engineer or otherwise modify the software. The Licensed Software, comprising proprietary trade secret information of GE and /or Its licensors, shall be held in confidence by Customer and protected from copying or disclosure to third parties. No title to the intellectual property is transferred. Customer must reproduce and always include all applicable copyright notices and proprietary markings on any copy. Customer hereby acknowledges and agrees that any Licensed Software that is embedded within GE hardware, shall be used, redistributed and /or resold only to the extent permissible under this Agreement and only embedded within the GE hardware with which it was provided. 2.2 If Customer is an authorized GE distributor or an Original Equipment Manufacturer or a system provider who incorporates the Licensed Software into its equipment or system for sale to an end user, or if Customer uses the Licensed Software to create redistributables, Customer may only transfer the Licensed Software to an and user provided that the end user agrees to be bound by the provisions of this Agreement. Customer shall use its best efforts to enforce its agreement with customers made in accordance with this section, and shall promptly report any violation or suspected violation to GE. 2.3 All rights and benefits afforded to GE under this Agreement shall apply equally to the owner of the Third Party Software and its licensors (collectively, the "Third Partiesl with respect to the Third Party Software. The Third Parties are intended third party beneficiaries of this Agreement. The provisions of this Agreement relating to the Licensed Software, as the same incorporate Third Party Software, are made expressly for the benefit of, and are enforceable by, the Third Parties. The Third Parties retain title to the Third Party Software. Unless the Third Parties extend a pass- through warranty covering the Third Party Software to Customer, all Third Party Software is provided "AS IS" without warranty of any kind, and the Third Parties disclaim all warranties, either express or implied, including but not limited to the implied warranties of merchantability, title, non - infringement or fitness for a particular purpose with regard to the Third Party Software. The Third Parties shall not have any liability for special, indirect. punitive, incidental or consequential damages. 2.4 EXCEPT AS PROVIDED IN SECTION 2.2 ABOVE, IF CUSTOMER TRANSFERS POSSESSION OF ANY COPY OF THE LICENSED SOFTWARE TO ANOTHER PARTY WITHOUT WRITTEN CONSENT OF GE, THIS LICENSE IS AUTOMATICALLY TERMINATED. Any attempt otherwise to sublicense, assign or transfer any of the right, duties or obligations hereunder is void. "'4RRANTY r warrants that the Application Software will be in substantial conformance with the manual pertaining thereto as of the date of shipment by GE. If, within ninety (90) days of date of ant it is shown that the Application Software does not meet this warranty, GE will, at its option, either correct the defect or error in the Application Software, free of charge, or make available to Customer satisfactory substitute software, or, if none of the foregoing is reasonably available, return to Customer all payments made as license fees and terminate the license with respect to the Application Software affected. GE does not warrant that operation of the Application Software will be uninterrupted or error free or that it will meet Customer's needs. A other portions of the Licensed Software are provided "as is" without warranty of any kind. 3.2 GE warrants that the media on which the Application Software is delivered will be free from defects in material or workmanship under normal use and service for a period of ninety (90) days from the date of delivery. If any defects are discovered in the media and reported by Customer within ninety (90) days after delivery, GE shall, at no cost to Customer, upon return of media to GE, replace the media and deliver to Customer a now and complete copy of the Application Software. 3.3 Any modification to the Licensed Software by the Customer without the express written consent of GE shall void the warranty. 3.4 WITH RESPECT TO THE SOFTWARE WHICH IS THE SUBJECT OF THIS AGREEMENT, THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE WHETHER WRITTEN; ORAL, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY. NO WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE SHALL APPLY, 4. LIMITATION OF LIABILITY 41 IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE SHALL GE OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR ANY PART THEREOF OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWN TIME COSTS, OR CLAIMS OF CUSTOMER'S CUSTOMERS AND TRANSFEREES FOR SUCH DAMAGES EVEN IF GE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 4.2 EXCEPT AS PROVIDED IN SECTION 5, INDEMNITY, IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL GE'S LIABILITY TO CUSTOMER FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, OR FROM ITS PERFORMANCE OR BREACH, OR FROM THE LICENSED SOFTWARE OR ANY PART THEREOF, OR FROM ANY SERVICE FURNISHED HEREUNDER, EXCEED THE FEES PAID BY CUSTOMER FOR THE LICENSED SOFTWARE. ALL SUCH LIABILITY SHALL TERMINATE UPON THE TERMINATION OF THE WARRANTY PERIOD AS SET FORTH IN SECTION 3. 4.3 If GE furnishes Customer with advice or other assistance which concerns Licensed Software or any portion thereof supplied hereunder or any system or equipment on which any such software may be installed and which is not required pursuant to this Agreement, the furnishing of such advice or assistance will not subject GE to any liability, whether in contract, indemnity, warranty, tort , (including negligence), strict liability, or otherwise. 4.4 The products to be licensed or sold hereunder are not intended for use in any nuclear or weapons production facility or activity, or other activity where failure of the products could lead directly to death, personal injury or severe physical or environmental damage. If so used, GE disclaims all liability for any damages arising as a result of the hazardous nature of the business in question, including but not limited to nuclear, chemical or environmental damage, injury or contamination, and Customer shall indemnify, hold harmless and defend GE, its officers, directors, employees and agents against all such liability, whether based on contract, indemnity, warranty, tort (including negligence), strict liability, or otherwise, regardless of whether GE had knowledge of the possibility of such damages. Page 1 Packet Page -2874- 5. INDEMNITY 12/11/2012 Item 16.0.4. 5.1 GE warrants that the Application Software shall be delivered free of any rightful claim for infringement of any United States patent, copyright, trademark or trade secret. If notified promptly in writing and given authority, information and assistance, GE shall defend, or may settle, at its expense, any suit or proceeding against Customer so far as based on a claimed infringement which would result in a breach of this warranty and GE shall pay all damages and costs awarded therein against Customer due to such breach. In case the Application Software is in such suit held to constitute such an infringement and its use is enjoined, GE shall, at its expense and option, either procure for Customer the right to continued use, or replace same with a non infringing product or part, or modify the Application Software so that it becomes non infringing, or remove the software and refund the license charge pertaining thereto (less reasonable depreciation for any period of use) and any transportation costs separately paid by Customer. The foregoing states the entire liability of GE for patent, copyright, trademark aaw and trade secret infringement by the Licensed Software or any part thereof 5.2 The indemnity under the preceding paragraph shall not apply to any use of Application Software in conjunction with any other product in a combination not furnished by GE as a part of this transaction. As to any such use in such combination, or any improper or unauthorized use, installation, or operation of the Application Software, GE assumes no liability whatsoever for patent, copyright, trademark or trade secret infringement and Customer will hold GE harmless against any infringement claims arising therefrom (including, but not limited to reasonable attorney's fees). 6. TERM AND TERMINATION 6.1 Customer may terminate the license granted hereunder at any time by destroying the Licensed Software together with all copies thereof and notifying GE in writing that all use of the Licensed Software has ceased and that the Licensed Software has been destroyed. 6.2 GE, upon thirty (30) days notice, may terminate this Agreement and/or any license hereunder if Customer fails to perform any obligation or undertaking to be performed by it under this Agreement or if Customer attempts to assign this Agreement without the prior written consent of GE. Within twenty (20) days after any such termination of this Agreement, Customer shall certify in writing to GE that all use of the Licensed Software or the affected portion thereof has ceased, and that the Licensed Software or portion thereof has been returned or destroyed, in accordance with GE's instructions. 6.3 Sections 4, 6 and 7 of this Agreement shall survive any expiration or termination and remain in effect. Termination of this Agreement or any license hereunder shall not relieve Customer of its obligation to pay any and all outstanding charges hereunder nor entitle Customer to any refund of such charges previously paid. 7. EXPORT If Customer intends to export (or reexport), directly or indirectly, the software products or technical data relating thereto supplied hereunder or any portion thereof, it is Customer's responsibility to assure compliance with U.S. and any other applicable governmental export control laws and, if appropriate, to secure any required export licenses or approvals in Customer's own name. Customer is also responsible for the accuracy and completeness of any information or certification Customer provides for purposes of export control compliance. 8. PAYMENT TERMS AND TAXES 8.1 All quoted charges arising pursuant to this Agreement are due upon delivery of the Licensed Software or any hardware delivered as part of the same Customer order (whichever is earlier) to which such charges pertain and shall be paid within thirty (30) days of the date of invoice therefor. 8.2 In addition to any price quoted and exclusive of arty taxes based on GE's net income, the Customer shall pay, or reimburse GE for, the gross amount of any present or future sales, use, excise, and income, value -added or other similar tax applicable to the licensing of the Licensed Software, or the Customer shall provide GE with evidence of exemption acceptable to the taxing authorities. If Customer fails to provide GE with requested proof of payment or exemption, GE may pay the taxes due and obtain reimbursement from Customer. Customer shall pay all import duties and registration fees arising from the licensing of the Licensed Software hereunder. 9. FORCE MAJEURE GE shall not be responsible for failures to fulfill its obligations under this Agreement due to causes beyond its control. 10, GOVERNING LAW This Agreement shall be governed by the laws of the State of New York, without regard to its conflict of law provisions. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. 11. U.S. GOVERNMENT CONTRACTING If Customer is a U.S. Government entity or elects to sell products or services provided hereunder to the U.S. Government or to a contractor selling to the U.S. Government, the following provisions apply: (a) Customer agrees that all products and services provided by GE meet the definition of "commercial- off -the- shelf" (COTS) or"commercial item" as defined in FAR 2.101, and that the subparagraph terms of FAR 52.212 -5(e) or FAR 52.244 -6 (or, for orders from the U.S Government, FAR 52.212 -5 and FAR 52.212 -4 with tailoring to the extent permitted by FAR 12.302 by replacing all paragraphs except those listed in FAR 12.302(b) with these Conditions of Sale), and DFARS 252.212- 7001(c) or DFARS 252.244 -7000, whichever are applicable, apply only to the extent applicable to COTS or commercial items and only as appropriate for the dollar value of this order; (b) with regard to any terms related to Buy American Act or Trade Agreements, the country of origin of products is unknown unless otherwise specifically stated in writing by GE; (c) Customer agrees that any services offered by GE are exempt from the Service Contract Act of 1965 (FAR 52.222 -41); (d) Customer agrees that this sale is not funded, in whole or in part, by the American Recovery and Reinvestment Act unless otherwise set forth in a written agreement of the parties; and (e) Customer is solely and exclusively responsible for compliance with any other applicable statutes or regulations governing sales to the U.S, Government, and GE makes no representations, certifications or warranties whatsoever with respect to the ability of its goods, services or prices to satisfy any such statutes and regulations other than those contained herein. 12. ENTIRE AGREEMENT This Agreement constitutes the entire Agreement with respect to the subject matter hereof and supersedes all proposals, oral or written, all previous negotiations and all other communications between the parties with respect to the subject matter hereof. These terms and conditions shall prevail, notwithstanding any different, conflicting, or additional terns and conditions that may appear on any purchase order or other instrument submitted by Customer. Deviation from these terms and conditions are not valid unless confirmed in writing by an authorized representative of GE. The invalidity of any portion of this Agreement shall not affect the remainder of this Agreement. CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. CUSTOMER FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN CUSTOMER AND GE AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. FURTHER, NO CHANGE OR AMENDMENT TO THIS AGREEMENT SHALL BE EFFECTIVE UNLESS AGREED TO BY WRITTEN INSTRUMENT SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF GE. Should you have any questions concerning this Agreement, you may contact GE by contacting: Legal Department, GE Intelligent Platforms, 2500 Austin Drive, Charlottesville, VA 22911 or 1- 800- 433 -2682. GEIP - EULA — 111017v2 Page 2 of 2 Packet Page -2875- 12/11/2012 Item 16.C.4. GE Intelligent Platforms, Inc. Proficy GlobalCare Complete Support Terms and Conditions ervices. With respect to the Licensed Application Software (as defined in the underlying License Agreement, "Application .. cware "), GE Intelligent Platforms, Inc. will provide the following services during the applicable period: 1.1. Telephone Support. GE will provide support consultation to Customer regarding use and operation of the Application Software. Such consultation will include telephone call back or web -based communication and will be available 8:00 A.M. to 8:00 P.M. E.S.T. or 9:00 A.M. to 5:00 P.M. Mean Time Europe or 9:00 A.M. to 6:00 P.M. China Standard Time, as applicable, Monday through Friday, excluding holidays at the customer care location. GE will provide the Customer with direct telephone support consultation and /or web -based communication that shall be available 24 hours a day, 7 days a week in cases of emergencies. Such emergencies include when the entire system is down or an existing mission critical product feature is inoperable resulting in disruption or product outage. GE reserves the right to limit the number of authorized callers when deemed necessary by GE in its sole discretion. Once such a limit has been imposed, Customer may register additional individuals for an additional fee. Customer will also have access to the Online Knowledge Base 24 hours a day, 7 days a week. The Online Knowledge Base provides access to support reference information including articles, white papers, error messages, sample code, and developer downloads. A Knowledge Base CD enables access to the Knowledge Base when not connected to the Internet. The Knowledge Base CD will be distributed to Customer (a) upon commencement of any initial or renewal GlobalCare term, and (b) at any other time upon reasonable request from Customer. 1.2. Problem Solving. GE technical personnel will be assigned to attempt correction of problems in the Application Software discovered by Customer and reported to GE in sufficient detail to permit GE to reproduce such problems. Customers are advised that remote access trouble- shooting tools may be called for in order to assist efforts to correct problems, and that such efforts may be impaired if the customer is unable to accommodate the use of such tools. Corrections made by GE to such problems will be available for download by Customer, or, at GE's option, GE may provide such problem correction through its next scheduled release of the Application Software. GE's obligation in such regard shall be to use its reasonable efforts to correct such problems; however, GE does not warrant that all such reported problems will be corrected. In the event a reported problem is determined to be of Customer origin, GE may bill Customer at GE's then current per diem rates for any time expended in an effort to correct such problem. Enhancements. GE will provide the Customer with notice of all Service Pack enhancements for the current version of the r,pplication Software that are released during the term of this agreement ('Service Packs'J, all software improvement modules for the Application Software version that are released during the term of this agreement C'SIMs'J, and all Application Software version upgrades that are released during the term of this agreement ( "Upgrades "), at no additional charge, with exceptions noted as follows. GE reserves the right to charge for significant new product functionality introduced in major product releases ( "Major Feature "). Major features are features that are licensed separately and will be additional to the base configuration that the Customer is already licensed to use. Service Packs, SIMs, and Upgrades are provided for the quantity of registered Application Software systems on site. Service Packs, SIMs, and Upgrades apply only to the Application Software and do not include any updates, enhancements, service packs, or upgrades to the operating system or other software. The Customer may order any of the Service Packs, SIMs, and /or Upgrades by visiting www.ge- ip.com /support during the term of this agreement. GE may from time to time make other downloads such as Developer Downloads and 1/0 Drivers available to Customer f'Other Downloads "). 1.4. Application Software Terms. All Service Packs, SIMs, Upgrades, corrections, updates, enhancements, documentation, modifications, Other Downloads and other such supporting materials furnished to Customer hereunder shall be considered part of the Application Software and subject to all the terms and conditions of the License Agreement, including those provisions limiting the use of the Application Software to the computer upon which it was initially installed as authorized by the License Agreement. 2. Warranty. GE warrants to the Customer that services provided hereunder shall be performed in a manner consistent with standard commercial practices in the industry. If any failure to meet this warranty appears Page 1 Packet Page -2876- 12/11/2012 Item 16.C.4. within ninety (90) days after completion of the specific services in question, GE will correct any such, defective portion of the services furnished. If reperformance is not practicable, GE will furnish, without charge, services in an amount essentially equal to those which, in GE's sole judgment, would have been required for reperformance. The warranties and remedies set forth herein are conditioned upon: (i) proper installation, use, and maintenance of the Application Software and the proper design and configuration of the system into which the Application Software is installed, and conformance with any applicable recommendations of GE; and (i) Customer promptly notifying GE of any defects and making any personnel, software or computer systems available as necessary. The preceding sets forth the exclusive remedy for all claims based on failure of, or defect in, services provided hereunder, whether the failure or defect arises before or during the warranty period, and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. Upon the expiration of the warranty period, all such liability shall terminate. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY. GE DOES NOT WARRANT ANY PRODUCTS OR SERVICES OF OTHERS WHICH CUSTOMER HAS DESIGNATED. 3. Limit of Liability. GE'S LIABILITY ON ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM ANY SERVICES COVERED BY OR FURNISHED UNDER THESE TERMS AND CONDITIONS (INCLUDING REMEDIAL WARRANTY EFFORTS), OR FROM THE PERFORMANCE OR BREACH OF THESE TERMS AND CONDITIONS, SHALL IN NO CASE EXCEED THE ANNUAL CONTRACT PRICE OF THE SUPPORT SERVICES FURNISHED HEREUNDER. ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD SPECIFIED IN SECTION 2 ABOVE. 4. Exclusion of Consequential Damages. IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL GE, ITS EMPLOYEES AND SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, COST OF PURCHASED POWER, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF CUSTOMERS OF THE CUSTOMER FOR SUCH DAMAGES AND THE CUSTOMER WILL INDEMNIFY GE, ITS EMPLOYEES AND SUPPLIERS AGAINST ANY SUCH CLAIMS FROM THE CUSTOMER'S CUSTOMERS. 5. Gratuitous Advice. If GE furnishes the Customer with advice or assistance concerning any products or systems which is not required pursuant to these terms and conditions, the furnishing of such advice or assistance will not subject GE to any liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. 6. Restrictions on Assignment. Customer may not assign or transfer this agreement without GE's prior written agreement. 7. Conditions of Service. The Application Software must be unmodified and in normal operating condition, and maintained at the latest release or revision level, and must contain the minimum equipment configuration at the revision level specified by GE. Customer must consult with GE before performing any upgrades on any third party software required to run the Application Software. 8. Term and Termination 8.1. GlobalCare Support dates of service will be as stated on the Customer's GlobalCare Support program certificate. Customer shall have the right to renew GlobalCare Support on a yearly basis as provided herein, subject to continuation of the program for the product(s) and payment of the applicable GE yearly service fee then in effect. 8.2. GE shall notify Customer that the applicable service period is ending, no less than thirty (30) days prior to expiration. Timely payment of the applicable yearly service fee, as provided in Section 9 below, shall extend Support Services. If payment is not received as set forth herein, Support Services will be terminated, and Customer will be placed on inactive status. The Customer may reactivate Support Services thereafter by paying a re- instatement fee. 8.3. GE may alter, discontinue, or refuse to permit the renewal of, any GlobalCare Support Program with respect to any or all products at any time. Customers will be notified of any alterations or planned discontinuations in a program at the time of the commencement of any initial or renewal term of such program. GEIP - GC Complete - 111017 Page 2 Packet Page -2877- 12/11/2012 Item 16.C.4. In the event of a discontinuation of a program, GE will continue to provide program support to exist., -y ..,..,J-1— payment of the applicable GE yearly service fee then in effect, until the expiration of the Customer's initial or renewal term. 8.4. Support Services hereunder shall automatically terminate in the event the License Agreement is terminated. larges, Payment Terms and Taxes 9.1. GE may adjust its applicable yearly service fee for GlobalCare Support either up or down for each renewal year following the initial period of its provision of GlobalCare Support, provided that GE notifies Customer of the amount of such adjustment at least thirty (30) days in advance of each such renewal. 9.2. Charges for each renewal year of Support Services are due upon renewal and shall be paid within thirty (30) days of the date of GE's invoice therefore. 9.3 In addition to any price specified herein, the Customer shall pay, or reimburse GE for, the gross amount of any present or future sales, use, excise, income, value added or other similar tax applicable to the price, sale or furnishing of any services hereunder, or to their use by GE or the Customer, or the Customer shall provide GE with evidence of exemption acceptable to the taxing authorities. If Customer fails to provide GE with requested proof of payment or exemption, GE may pay the taxes due and obtain reimbursement from Customer. 10. Use of Technical Information. With respect to any technical information that the Customer may provide to GE in connection with the GlobalCare Support, GE may use such information for the limited purposes of writing and posting technical notes on the support services website and Knowledge Base CD and compiling aggregate data, for internal use only, on the frequency and type of support services requested. GE will not utilize such technical information in any form that personally identifies the Customer. 11. U.S. Government Contracting If Customer is a U.S. Government entity or elects to sell products or services provided hereunder to the U.S. Government or to a contractor selling to the U.S. Government, the following provisions apply: (a) Customer agrees that all products and services provided by GE meet the definition of "commercial- off - the - shelf' (COTS) or "commercial item" as defined in FAR 2.101, and that the subparagraph terms of FAR 52.212 -5(e) or FAR 52.244 -6 (or, for orders from the U.S Government, FAR 52.212 -5 and FAR 52.212 -4 with tailoring to the extent permitted by FAR 12.302 by replacing all paragraphs except those listed in FAR 12.302(b) with these ditions of Sale), and (subject to subsection (e) below) DFARS 252.212- 7001(c) or DFARS 252.244 -7000, whichever are applicable, y only to the extent applicable to COTS or commercial items and only as appropriate for the dollar value of this order; (b) with regard to any terms related to Buy American Act or Trade Agreements, the country of origin of products is unknown unless otherwise specifically stated in writing by GE; (c) Customer agrees that any services offered by GE are exempt from the Service Contract Act of 1965 (FAR 52.222 -41); (d) Customer agrees that this sale is not funded, in whole or in part, by the American Recovery and Reinvestment Act unless otherwise set forth in a written agreement of the parties; and (e) Customer is solely and exclusively responsible for compliance with any other applicable statutes or regulations governing sales to the U.S. Government, and GE makes no representations, certifications or warranties whatsoever with respect to the ability of its goods, services or prices to satisfy any such statutes and regulations other than those contained herein. 12. General Provisions. 12.1. These Terms and Conditions, along with any terms and conditions or documents referenced herein, contain the complete agreement between the parties, and no modification, amendment, rescission, waiver or other change will be binding on GE unless agreed to in writing by GE's authorized representative. Any oral orwritten representation, warranty, course of dealing or trade usage not contained or referenced herein will not be binding on GE. The invalidity, in whole or part, of any sections or subsections hereof shall not affect the remainder of such section or subsection or any other section or subsection hereof. 12.2. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of law provisions. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. 12.3. Customer shall not transmit to GE any information, suggestions, or ideas claimed by Customer to be confidential except pursuant to a writing, signed by an authorized representative of GE, which identifies such information and addresses its confidentiality. Page 3 GEIP - GC Complete - 111017 Packet Page -2878- 12/11/2012 Item 16.C.4. COLLIER COUNTY Board of County Commissioners Item Number: 16.C.2. Item Summary: Recommendation to waive competition and authorize sole source contract renewals with GE Intelligent Solutions for an estimated $100,000 and GrayMatter Systems for an estimated $195,000 for existing software licensing for the Public Utilities Division's Supervisory Control and Data Acquisition systems, SCADA Software and Support Renewal Projects 71056 and 72541. Meeting Date: 4/24/2012 Prepared By Name: CromerAaron Title: Project Manager, Principal,Public Utilities Engineering 3/28/2012 9:54:20 AM Approved By Name: Steve Messner Title: Plant Manager,Water Date: 3/30/2012 3:22:30 PM Name: HapkeMargie Title: Operations Analyst, Public Utilities Date: 3/30/2012 5:03:45 PM Name: Paul Mattausch Title: Director - Water,Water Date: 4/2/2012 9:38:26 AM Name: ParkerNicole Title: Contracts Special ist,Purchasing & General Services Date: 4/2/2012 9:57:52 AM Name: MarkiewiczJoanne Title: Manager - Purchasing Acquisition,Purchasin & Gene Date: 4/4/2012 10:18:17 AM Name: WidesTom Packet Page -2879- Title: Director - Operations Support - PUD,Utilities Fina Date: 4/5/2012 2:06:59 PM Name: ChmelikTom Title: Project Manager, Principal,Public Utilities Engine Date: 4/5/2012 3:20:30 PM Name: MarkiewiczJoanne Title: Manager - Purchasing Acquisition,Purchasing & Gene Date: 4/6/2012 1:19:09 PM Name: BerriosMike Title: Manager - Network Operations,Information Technology Date: 4/6/201.2 1:49:12 PM Name: YilmazGeorge Title: Director - Wastewater,Wastewater Date: 4/6/2012 6:35:40 PM Name: KlatzkowJeff Title: County Attorney Date: 4/12/2012 8:38:46 AM Name: KlatzkowJeff Title: County Attorney Date: 4/12/2012 9:14:03 AM Name: UsherSusan Title: Management/Budget Analyst, Senior,Office of Manage Date: 4/17/2012 10:58:19 AM Name: OchsLeo Title: County Manager Date: 4/17/2012 11:54:55 AM Packet Page -2880- 12/11/2012 Item 16.C.4.