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Res 21-17 Approving and Agreement with Johnson Controls for WA Fire System UpdatesTOWN OF WESTLAKE RESOLUTION NO, 21-17 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING AGREEMENT WITH JOHNSON CONTROLS TO UPDATE THE WESTLAKE ACADMEY FIRE CONTROL SYSYEMS AND AUTHORIZE THE TOWN MANAGER TO MAKE FUNDING CHANGES NOT TO EXCEED $25,000 ON THIS PROJECT. WHEREAS, the Town of Westlake owns and operates the Westlake Academy and provides facilities for Town and Academy use; and, WHEREAS, the fire alarm system was installed in 2003 and will be converted to the network style system; and, WHEREAS; the system will run on the campus communication fiber and not the copper wire which was installed in 2003 and, WHEREAS, the Secondary and Arts and Sciences Building will receive an upgrade to their CPU; the display system will be converted to the network style system; and, WHEREAS, the Town Council finds that the passage of this resolution is in the best interest of the citizens of Westlake. NOW, THEREFORE., BE IT RESOLVED BY THE TOWN COUNCIL, OF THE TOWN OF WESTLAKE, TEXAS: SECTION l: That, all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: That the Town of Westlake Town Council hereby approves the agreement with Johnson Controls as attached as Exhibit "A" and authorize Town Manager to make funding changes not to exceed $25,000 on this project., attached as Exhibit "A". SECTION 3: Ifany portion of this Resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Council hereby determines that it would have adopter this Resolution without the invalid provision. SECTION 4: That this resolution shall become effective from and after its date of passage. PASSED AND APPROVED ON THIS DAY 24"" OF MAY 2021. Rcsohrtion 2 i-i 7 Page, i z.- 1 ATTEST: Tod Wood, Town Secretary APPROVED AS TO FORM: For L. Stanton Lowry, Town Attorney Laura L. Wheat, Mayor A" Z4�� Amanda DeGan, Town Manager Resohdi;.,n 2I- ? Pa�c 2 eF2 ohnson .i �1 Controls employees, agents, subcontractors, suppliers, and representatives as additional insureds on Customer's general liability and auto liability policies. 26. Termination. Any termination under the lerns of this Agreement shall be made in writing. In the event Customer terminates this Agreement prior to completion for any reason nor arising solely from Company's performance or failure to perform, Customer understands and agrees that Company will incur costs of administration and preparation that are difficult to estimate or determine, Accordingly, should Customer terminate this Agreement as described above, Customer agrees to pay all charges incurred for products and equipment Installed and services performed, and In addition pay an amount equal to twenty (20%) percent of the price of products and equipment not yet delivered and Services not yet performed, return all products and equipment delivered and pay a restocking fee of twenty (20%) percent the price of products or equipment returned. Company may terminate this Agreement immediately at its sole discretion upon the occurrence of any Event of Default as hereinafter defined. Company may also terminate this Agreement at its sole discretion upon notice to Customer if Company's performance of Its obligations under this Agreement becomes impracticable due to obsolescence of equipment at Customer's premises or unavailability of parts. 27. Default. An Event of Default shall be (a) failure of Customer to pay any amount when due and payable, (b) abuse of the System or the Equipment, (c) dissolution, termination, discontinuance, insolvency or business failure of Customer. Upon the occurrence of an Event of Default, Company may pursue one or more of the following remedies: (1) discontinue furnishing Services and'delivering Equipment, (ii)) by written notice to Customerdeclare the balance of unpaid amounts due and to become due under this Agreement to be immediately due and payable; (ill) receive Immediate possession of any Equipment forwhich Customerhas not paid; (iv) proceed at law or equity to enforce performance by Customer or recover damages for breach of this Agreement, and (v) recover all costs and expenses, including without limitation reasonable attorneys' fees, in connection with enforcing or attempting to enforce this Agreement. 28. Exclusions. Unless expressly Included in the Scope of Work, this Agreement expressly excludes, without limitation, testing inspection and repair of duct detectors, beam detectors, and UV/IR equipment; provision of fire watches; clearing of ice blockage; draining of improperly pitched piping; replacement of batteries; recharging of chemical suppression systems; reloading of, upgrading, and maintaining computer software;. system upgrades and the replacement of obsolete systems, equipment, components or parts; making repairs or replacements necessitated by reason of negligence or misuse of components or equipment or changes to Customer's premises, vandalism, corrosion (including but not limited to micro-baclorialty Induced corrosion ('MIC')), power failure, current fluctuation, failure due to non -Company installation, lightning, electrical storm, or other severe weather, water, accident, fire, acts of God or any other cause external to the Covered System(s). Repair Services provided pursuant to this Agreement do not cover and specifically excludes system upgrades and the replacement of obsolete systems, equipment, components or parts. All such services may be provided by Company at Company's sole discretion at an additional charge. If Emergency Services are expressly included In the scope of Project: Westlake Academy Customer Reference: Johnson Controls Reference: 405413480 Date: 05/03/2021 Page 7 of 7 work section, the Agreement price does not include travel expenses. 29, No Option to Solicit. Customer shall not, directly or Indirectly, on its own behalf or on behalf of any other person, business, corporation or entity, solicit or employ any Company employee, orinduce any Company employee to leave his or her employment, for a period of two years after termination of this Agreement. 30. Force Majeure; Delays. Company shall not be liable, nor in breach or default of Its obligations under this Agreement, for delays, interruption. failure to render services, or any other failure by Company to perform an obligation under this Agreement, where such delay, interruption or failure is caused. In whole or in part, directly or indirectly, by a Force Majeure Event. A'Force Majeure Event' is a condition or event that is beyond the reasonable control of Company, whether foreseeable or unforeseeable, including, without limitation, acts of God, severe weather (Including but not limited to hurricanes, tornados. severe snowstorms or severe rainstorms), wildfires, floods, earthquakes, seismic disturbances, or other natural disasters, acts or omissions of any governmental authority (including change of any applicable law or regulallon), epidemics, pandemics, disease, viruses, quarantines, or other public health risks and/or responses thereto, condemnation, strikes, lock -outs, labor disputes. an Increase of 5% or more In tariffs or other excise taxes for materials to be used on the project, fires, explosions or other casualties, thefts, vandalism, civil disturbances. Insurrection, mob violence, riots, war oroiher armed conflict (or the serious threat of same), ads of terrorism, electrical power outages, interruptions or degradations in telecommunications, computer, network, or electronic communications systems, data breach, cyber-attacks, ransomware, unavailability or shortage of parts, materials, supplies, or transportation, or any other cause or casually beyond the reasonable control of Company, If Company's performance of the work is delayed, impacted, or prevented by a Force Majeure Event or Its continued effects, Company shall be excused from performance under the Agreement. Without limiting the generalityof the foregoing, if Company Is delayed in achieving one or more of the scheduled milestones set forth in the Agreement due to a Force Majeure Event, Company will be entitled to extend the relevant completion dale by the amount of time [hat Company was delayed as a result of the Force Majeure Event, plus such additional time as may be reasonably necessary to overcome the effect of the delay. To the extent that the Force Majeure Event directly or indirectly increases Company's cost to perform the services, Customer Is obligated to reimburse Company for such Increased costs, including, without limitation, costs incurred by Company for additional labor, inventory storage, expedited shipping fees, trailer and equipment rental fees, subcontractor fees or other costs and expenses incurred by Company In connection with the Force Majeure Event. 31, One -Year Claims Limitation; Choice of Law. No claim or cause of action, whether known or unknown, shall be brought against Company more than one yearafter the claim first arose. Except as provided for herein, Company's claims must also be brought within one year. Claims not subject to the one-year limitation include claims for unpaid: (a) contract amounts, (b) change order amounts (approved or requested) and (c) delays and/or work inefficiencies. The laws of Massachusetts shall govern the validity, enforceability, and interpretation of this Agreement. 32. Assignment. Customer may not assign this Agreement without Company's priorwritten consent. Company may assign this Agreement to an affiliate without obtaining Customer's consent. 33. Enure Agreement. The parties intend this Agreement, together with any attachments or Riders (collectively the 'Agreement) to be the final, complete and exclusive expression of their Agreement and the terms and conditions thereof, This Agreement supersedes all prior representations, understandings or agreements between the parties, written or oral, and shall constitute the sole terms and conditions of sale for all equipment and services. No waiver, change, or modification of any terms or conditions of this Agreement shall be binding on Company unless made in writing and signed by an Authorized Representative of Company. 34. Severabillty, If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part, this Agreement will continue to be valid as to the other provisions and the remainder of the affected provision. 35. Legal Fees. Company shall be entitled to recover from the customer all reasonable legal fees Incurred in connection with Company enforcing the terms and conditions of this Agreement. 36, Software and Digital Services. Use, implementation, and deployment of the software and hosted software products ('Software-) offered under these terms shall be subject to, and governed by, Company's standard terms for such Software and Software related professional services in effect from time to time at hilps:/MAvw,johnsoncontrols.comltechtorms (collectively, the 'Software TermsJ. Applicable Software Terms are incorporated herein by this reference. Other than the light to use the Software as set forth In the Software Terms, Company and its licensors reserve all right, title, and interest (including all intellectual property rights) in and to the Software and improvements to the Software. The Software that is licensed hereunder is licensed subject to the Software Terms and not sold. If (here is a conflict between the otherterns herein and the Software Terms, the Software Terms shall lake precedence and govern with respect to rights and responsibilities relating to the Software, its implementation and deployment and any Improvements thereto. 37. License Information (Security System Customers): AL Alabama Electronic Security Board of Licensure 7956 Vaughn Road, Pmb 392, Montgomery, Alabama 36116 (334) 264.9388: AR Regulated by: Arkansas Board of Private Investigators And Private Security Agencies, #1 State Police Plaza Drive, Little Rock 72209 (501)618.8600: CA Alarm company operators are licensed and regulated by the Bureau of Security and Investigative Services, Department of Consumer Affairs, Sacramento, CA, 95814, Upon completion of the Installation of the alarm system, the alarm company shall thoroughly instruct the purchaser In the proper use of the alarm system. Failure by the licensee, without legal excuse, to substantially commends work within 20 days from the approximate date specified in the agreement when the work will begin is a violation of the Alarm Company Act: NY Licensed by N.Y.S. Department of the Slate: TX Texas Commission on Private Security, 5805 N. Lainar Blvd., Austin, 78752-4422, 512424-7710.Lioense numbers available at www.johnsoncontrals.com or contact your local Johnson Controls office. IMPORTANT NOTICE TO CUSTOMER In accepting this Proposal, Customer agrees to the terms and conditions contained herein and any attachments or riders attached hereto that contain additional terms and conditions. It is understood that these terms and conditions shall prevail over any variation in terms and conditions on any purchase order oroiher document that the Customer may Issue. Any changes in the system requested by the Customer after the execution of this Agreement shall be paid for by Customer and such changes shall be authorized In writing. ATTENTION IS DIRECTED TO THE LIMITATION OF LIABILITY, WARRANTY, INDEMNITY AND OTHER CONDITIONS ON THE PRECEDING PAGES. This proposal shall be void if not accepted In writing within 30 days from the date of the Proposal, Fire Domain Sala and Insiallallon Agreement Job Design April 10. 2020 Offered By: Accepted By: (Customer) Johnson Controls Fire Protection LP License#: 800 Railhead Rd Ste 304 FORT WORTH, TX 76106.1981 Telephone: (817) 210 0700 Representative: Kristopher Womack Service Supervisor Company: _70i' °l 6-F �✓CSf la�� __ __ Address: /i U $014ng Qlvd,—Cold Sw 20c, Signature: la Title JtJOA OM4 IC/ P.O.#: Dale: Fire, Security, Communications, Sales & Service Offices & Representatives in Principal Cities throughout North America 0 2020 Johnson Controls. ALL RIGHTS RESERVED. r7'�