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CM-07-02-016SUPPEMENTAL AGREEMENT NO. 1 TO ADT COMMERCIAL SALES AGREEMENT FOR CITY OF ROUND ROCK PUBLIC WORKS BUILDING 2008 ENTERPRISE By signature hereon, both parties expressly accept and agree that this "Supplemental Agreement No.1" shall amend and supplement ADT Commercial Sales Proposal/Agreement (hereafter the "ADT Agreement"), and any other documents which are made a part of the said ADT agreement by reference or incorporation. Additionally, both parties expressly accept and agree that all such contract documents are complementary, and what is required by one shall be as binding as if required by all. Additionally, both parties expressly accept and agree that, in the event of disagreement, the following order of precedence of documents shall govern interpretation: (a) this signed Supplemental Agreement No.1 shall have top priority; and (b) the signed ADT agreement and any addenda shall have second priority. For good and sufficient consideration, which the parties hereby affirm, the parties contractually agree as follows: (1) On the front page of the ADT agreement, in the upper right-hand block, the following shall apply: the customer name shall be City of Round Rock, Texas; and the customer address shall be 221 East Main Street, Round Rock, Texas 78664; and the customer telephone number shall be 512-218-5401; and the person to whose attention the contract shall be directed shall be Hassan Farhat at 512-218-6643. (2) On the front page of the ADT agreement, in the right-hand block labeled "Type of Transaction," the following shall be struck through as written; and shall be replaced by the following: ADT may remove or, upon written notice to the Customer, abandon in whole or in part all devices, instruments, appliances, cabinets, and other materials associated with the system, upon termination of this agreement, but it is understood and agreed by and between the parties that if ADT removes any part or the whole of the system, ADT shall leave intact any and all wiring because such wiring is the property of the Customer and not ADT. In any removal of the system, ADT shall use reasonable efforts to not damage any part of Customer's premises, and if ADT does cause damage, then ADT assumes financial responsibility for repair of same to as near as possible to the condition the premises were in at the time of removal of the system. 1 (6) (7) On the back page of the ADT agreement, under "Terms and Conditions," all seven paragraphs under A. are not applicable, and shall be omitted in their entirety. On the back page of the ADT agreement, under "Terms and Conditions," all four paragraphs under B. are not applicable, and shall be omitted in their entirety. On the back page of the ADT agreement, under "Terms and Conditions," the first paragraph under C. shall be struck through and the following shall be added and shall prevail over the printed terms: C. Maintenance — The reverse side of this agreement indicates that maintenance service is being provided. The maintenance charge shown is not subject to change during the term of this Agreement. In the event any part of the equipment installed shall become defective or inoperative under normal use during the term of this Agreement, and ADT determines the equipment is defective or inoperative, ADT shall replace or repair such defective apart without charge to Customer. The expense of all extraordinary maintenance and repair due to alterations in the Customer's premises, alterations of the system made at the written request of the Customer, or made necessary by changes to the Customer's premises, damage to the premises or to the alarm system, or to any cause adjudicated to be beyond the control of ADT, shall be borne by the Customer. The Customer agrees to furnish any necessary electric current through the Customer's meter and at the Customer's own expense with an outlet within ten (10) feet of the ADT Control Panel. It is mutually agreed that the work of installation and ADT's repairs of the system shall be performed between ADT's normal working hours of 8:00 am to 4:30 pm Monday through Friday, except holidays. On the back page of the ADT Agreement, under "Terms and Conditions," D. is not applicable and shall be omitted in its entirety. On the back page of the ADT Agreement, under "Terms and Conditions," the following shall be added and shall prevail over the printed terms: 7.1 The original term of this agreement is for one (1) year from the date installation is completed. Either party may give written notice of cancellation of this Agreement at least thirty (30) days prior to the expiration of the original term. Upon termination of this agreement for any reason, except for cancellation at the end of the original term, all services by ADT will terminate and any payments due for services properly rendered shall be paid by Customer. There shall be no amounts paid for liquidated damages whatsoever, and Customer shall never be liable for same. (8) On the back page of the ADT agreement, under "Terms and Conditions," the following shall be added and prevail over the printed terms: 8.1 ADT shall not have the right, at any time during the term of this agreement, to increase the charges provided herein. 2 (9) On the back page of the ADT Agreement, under "Terms and Conditions," the following shall be added and shall prevail over the printed terms: 9.1 Customer shall be in default of this Agreement for (a) failure to pay the installation charge, (b) failure to pay the maintenance charges when due, or (c) failure to perform any other substantive obligation under this Agreement. ADT shall be in default of this agreement for failure to perform any substantive obligation under this Agreement. Upon default by either party, the other party shall have the right to terminate this Agreement ten (10) days after giving written notice of default if, after the other parties receipt of such written notice, that party has not made substantial good faith efforts to cure such default. In the event of a court -adjudicated default under this Agreement, including a default on the part of Customer to pay monies due and owing to ADT, the party judicially found to be in default shall pay actual damages or losses incurred in connection with such default, including costs and expenses incurred by either party including reasonable attorneys' fees, costs, prejudgment interest, and any other reasonable and related expenses. (10) On the back page of the ADT Agreement, under "terms and Conditions," the following shall prevail over the printed terms: It is understood and agreed by and between the parties that any written instructions required to be given by the Customer to ADT shall be standing order written instructions, and as such, a separate writing shall not be required of Customer in individual circumstances. (11) On the back page of the ADT Agreement, under "Terms and Conditions," E. shall be struck through in its entirety and the following shall be added and shall prevail over the printed terms. 11.1 It is understood and agreed by the parties hereto the City will have and maintain insurance on its own facilities written for personal injury and property loss or damage on City's premises. ADT shall have and maintain during the term of this Agreement insurance coverage in an amount acceptable to City, from a company authorized to do insurance business in Texas and otherwise acceptable to City, with certificates of insurance evidencing such minimum coverage in force to be filed with City. The parties acknowledge that the payments to ADT provided for herein are based solely on the value of the services as set forth herein and are unrelated to the value of Customer's property or the property of others Located on Customer's premises, that ADT makes no guarantee, representation or warranty including any implied warranty of merchantability or fitness for a particular purpose that the system or service supplied will avert or prevent occurrences or the consequences therefrom which the system or service is intended to detect or avert, except for as recited herein and except for the provisions of ADT's Limited Warranty as it may apply to any loss occurring while this Agreement is in force. The parties acknowledge that such warranty is in effect in conjunction with this Agreement. 3 (12) On the back page of the ADT Agreement, under "Terms and Conditions," the following shall be added and shall prevail over the printed terms: 12.1 In no event will ADT be liable for any loss, damage, cost or expense attributable to negligence, willful misconduct or misrepresentations by City, its directors, employees or agents. In no event shall ADT be liable to City, by reason of any act or omission relating to the services provided under this agreement (including the negligence of ADT), whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit, punitive, special or similar damages relating to or arising from the services, or (b) in any event, in the aggregate, for any amount in excess of the total fees paid by the City to ADT under this agreement, except to the extent determined to have resulted from ADT's gross negligence, willful misconduct or fraudulent acts relating to the service provided hereunder. (13) On the back page of the ADT Agreement, under "Terms and Conditions," F. is not applicable, and shall be omitted in its entirety. (14) On the back page of the ADT Agreement, under "Terms and Conditions," I. is not applicable, and shall be omitted in its entirety. (15) On the back page of the ADT Agreement, under "Terms and Conditions," J. shall be struck through in its entirety. (16) On the back page of the ADT Agreement, under "Terms and Conditions," K. shall be struck through in its entirety. (17) On the back page of the ADT Agreement, under "Terms and Conditions," L. shall be struck through in its entirety. (18) On the back page of the ADT Agreement, under "Terms and Conditions," N. shall be struck through in its entirety. (19) On the back page of the ADT Agreement, under "Terms and Conditions," the following shall be added and shall prevail over the printed terms: 19.1 Customer agrees to call to ADT's attention, in writing, any apparent defects or omissions relating to the system within a reasonable time of detection. (20) On the back page of the ADT Agreement, under "Terms and Conditions," the following shall be added and shall prevail over the printed terms: 20.1 This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to enforcement of any of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. (21) On the back page of the ADT Agreement, under "Terms and Conditions," the following shall be added and shall prevail over the printed terms: 4 21.1 Customer acknowledges that the provisions of this Agreement dealing with disclaimer of warranties, limitation of liability and indemnification inure to the benefit of and are applicable to ADT Security Services, Inc. and its subsidiaries and to any subcontractors engaged by ADT to provide monitoring, maintenance, installation or service of the alarm system provided herein. (22) On the back page of the ADT Agreement, under "Terms and Conditions," the following shall be added and shall prevail over the printed terms: 22.1 If there is any conflict between this Agreement (defined as being the total of ADT Commercial Sales Proposal/Agreement, any addenda, any documents incorporated by reference, and this Supplemental Agreement No. 1, in priority order as recited in the first paragraph of this document) and Customer's purchase order or other documents, then this Agreement as defined in this sentence will govern, whether such purchase order or other document is prior or subsequent hereto. The parties agree that this total Agreement package is not assignable by either party except upon advance express written consent of the other party. (23) On the back page of the ADT Agreement, under "Terms and Conditions," the following shall be added and shall prevail over the printed terms: 23.1 NON -APPROPRIATION AND FISCAL FUNDING This agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of the City does not appropriate funds sufficient to purchase the services as determined by City's budget for the fiscal year in question. City may effect such termination by giving written notice of termination at the end of its then current fiscal year. (24) On the back page of the ADT Agreement, under "Terms and Conditions," the following shall be added and shall prevail over the printed terms: 24.1 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government code, payment to ADT will be made within thirty (30) days of the day on which City receives the performance, supplies, materials, equipment and/or deliverables, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for the performance and/or deliverables or services, whichever is later. ADT may charge a late fee of one percent (1%) for payments not made in accordance with this prompt payment policy; however, this policy does not apply to payments made by City in the event: (1) There is a bona fide dispute between City and ADT concerning the supplies, materials, or equipment delivered or the services performed which causes the payment to be late; or (2) The terms of a federal contract, grant, regulation, or statute prevent City from making timely payment with federal funds; or 5 (3) There is a bona fide dispute between the parties and subcontractors or between a subcontractor and its suppliers concerning supplies, materials, or equipment delivered or services performed which causes the payment to be late; or (4) Invoices are not mailed to City in strict accordance with instructions, if any, on the purchase order or the agreement or other such contractual agreement. (25) On the back page of the ADT Agreement, under "Terms and Conditions," the following shall be added and shall prevail over the printed terms: 25.1 DISPUTE RESOLUTION If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually selected mediator. Any costs and fees, other than attorney fees, associated with the mediation shall be shared equally by the parties. City and ADT hereby expressly that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. IN WITNESS WHEREOF, the parties have executed this Supplemental Agreement No. 1 as indicated below. 6 K �1 CITY OF ROUND ROCK, TEXAS By: Printe Title: Date: Christine Martinez, City Secretary ADT SECURITY SEVICES, INC. By: Print Title: Date: Rev. 072806 COMMERCIAL SALES PROPOSAL/AGREEMENT TOWN NO. CUSTOMER NO. JOB NO. Date 4 nr�nr�rrv� Tel. No ADT Security Services, Inc. ("ADT") ADT Security Services, Inc. 1817 W Braker Ln Ste F-400 Austin, TX 78758 Address: 512-832-2925 Sales Rep: Scott Bailey To: (Customer Name and Address) Attn: City of Round Rock -Pubic VVorks 2008 Enterprise Round Rock, TX 78664 Hassan Farhat Tel. No. 512-218-5401 ADT proposes to install or cause to be installed the equipment and furnish the services indicated herein: QTY. 1 1 1 1 1 1 1 6 3 1 DESCRIPTION LOCATION (BE SPECIFIC) This Line Reserved for Control Sets or Packages ADT PI N -1000 -IV -X, (4)S4, X4, (4)Omni40 ADT Pig N -10013 -IV -X, (4)S4, X4r (4)Onnd30 Kit, LANSRL100 and N -485 -PC PS/Charger wwACM8 Pwr Ccntrolier RrafAmess. PTC olds Double Doti Magodr 872-36-313401RM Door Release Br 672-36-31 3 -GID -LHR Door Release Bar Armored Door Loops RIM Surface Mount EledricStrike Falcon Elerrled Cylindrical Lodteat Battery 12V 7AH Customer b provide Network =median for oonnedion of Access C onbol penal b Customer's network far mon of Database from server toed at Cly Hall. Licensed by: Texas Deportment of Public Safety Private Security Bureau P.O. Bore 4087 Austin, TX 78773 512-424-7710 Cus omer acknowledges that: (a) ADT has explained the full range of protection, equipment, and services available to Customer; (b) additional protection over and above that provided herein is available and may be obtained from ADT at an additional cost to the Customer; and (c) Customer desires and has contracted for only the equipment and services itemized on this Agreement. Type of Transaction ❑ Direct Sale (equipment to become ®1/ pfoperty of the Customer upon payment of Selling Price indicated below in full). System to remain property of ADT. ADT may remove or upon written notice to the Customer, abandon in whole or in part, all devices, instruments, appliances, cabi- nets, and other materials associated with the system, upon termination of this agree- ment, without obligation to repair or re- decorate any portion of the Customer's premises upon such removal, and the re- moval or abandonment of such materials shall not be held to constitute a waiver of the right of ADT to collect any charges which have been accrued or may be accrued hereunder. Services To Be Provided P - Provided NP - Not Provided (Circle One) Central Station Signal Receiving and Notification Service ❑ Fire Alarm 0 Hold Up Alarm ❑ Burglar Alarm 0 Duress ❑ Supervisory 0 Other Direct Connection Service To Using: ❑ Digital Communicator ❑ Leased Line 0 Derived Local Channel ❑ Telephone Charges Not Included In ADT Billing Maintenance Inspections Number per Year Investigator Response P NP 0 Interior 0 Exterior Supervised/Scheduled P {rvp/ Opening/Closing lh��.�' Opening/Closing Logging P P Opening/Closing Reports Other P P P NP It the Familiarization Period is accepted, Customer. please initial here. 11 Maintenance Service is declined, Customer, please initial here. For the sum of $ 5,471-00 payable upon acceptance of this proposal and the balance payable upon completion of the installation and as a pre- condition to activation of the system and, if applicable, connection to central station or direct connection service. In addition for the service(s) to be provided as indicated above, Customer agrees to pay $ S2,800.00 per annum, effective from the date service is operative under this agreement. Rut �I.uII na,.e u.c .,gl,t to I LAG Je tl a, n,Jdro 1 J.l:e el,e,go alter, 1 yea.. In the event of termination prior to the end of the contract term, the Customer agrees to pay, in addition to any charges for services rendered prior to termination, 90% of the service charge remaining to be paid for the unexpired term of the agreement as liquidated damages (but not as a penalty). The Customer agrees to pay, in addition to the service charges above, any false alarm assessments, taxes, fees or charges that are imposed by any governmental body, telephone or signal transmission company (for numbering or other changes) or costs of ADT related to reprogramming alarm controls and other devices to comply with such numbering or other changes relating to the installation or service provided under this Agreement and to pay any increase in charges to ADT for facilities required for transmission of signals under this Agreement. In the event ADT's representative is sent to the Customer's premises in response to a service call or alarm signal caused by the Customer improperly following operating instructions or, failing to close or properly secure a window, door or other protected point, or improperly adjusting monitors or accessory components, there shall be a service charge to the Customer. to pay all coata, cxpenaca and fcca of ADT'a cnforccmcnt of thia Agreement, including oollcction cxpcnaca, eeor4-uesls-e,rd-ethura..,3' feta. A,rJ otallat; +-,t3er,c q et,.d ;,, this agn,e,,,cnt rs Le..cJ e., ADT, Customer warrants that the Customer: (1) has requested the equipment/services specified in this Agreement for its own use and not for the benefit of any third party, (2) owns the premises in which the equipment is being installed or that Customs as the authority to engage ADT to carry out the installation in the premis- es an. - c.mply with all, s, codes, and regulations pertaining to the use of the equipment/services. By i� App :ved.oCrl�-fd Form 2� 8fl -.fJ os fa,(0 _Oa -0f Agent Aut ized Representative of ADT Customer Acceptance In accepting this Proposal, Customer agrees to the terms and conditions contained herein including those on the reverse side. It is understood that they shall prevail over any variation in terms and condi- tions on any purchase order or other 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 the Customer and such changes shall be authorized in writing. ATTENTION IS DIRECTED TO THE WARRANTY, LIMIT OF LIABILITY AND OTHER CONDITIONS ON REVERSE SIDE. This Agreement is not binding unless approved in writing by an authorized Representative of ADT. In the event of failure of such approval, the only liability of ADT shall be to return to the Customer the amount, if • any, paid to ADT upon signing of this Agreement. yY, YY © 1997 ADT Security Services DATE January 29, 2007 SUBJECT: City Manager Approval - February 2, 2007 ITEM: Action authorizing the City Manager to execute a Supplemental Agreement No. 1 to ADT Commercial Sales Agreement for the City of Round Rock Public Works Building at 2008 Enterprise Dr. Department: Staff Person: Justification: Engineering and Development Services Larry Madsen, Construction Manager This agreement is for installation of proxicard system and yearly maintenance contract. Funding: Cost: Source of funds: Outside Resources: $20,056.00 General Fund ADT Security Services Inc. Background Information: This agreement is to secure the 2 buildings at 2008 Enterprise Drive by installing Proxicard system. The cost is broken down as following: Public Works Building - Installation - $9,471 Annual Maintenance - $2,800 Construction Inspection - Installation - $6,185 Annual Maintenance - 1,600 Public Comment: N/A Blue Sheet Format Updated 01/20/04