HomeMy WebLinkAboutReso 168-2023 (File 23-960)Short Form Services Agreement
[Rev:11/14/2016] 1
SOUTH SAN FRANCISCO SERVICES AGREEMENT
This Services Agreement (this “Agreement”) is made and entered into between the City of South
San Francisco, a municipal corporation (“City”) and Burke Construction_, (“Consultant”) effective as
of March 18, 2024 (the “Effective Date”). City and Consultant are hereinafter collectively referred to as
(the “Parties”). In consideration of their mutual covenants, the Parties hereby agree as follows:
1. Scope of Services. Consultant shall provide the following services and/or materials (“the
Work”):__replace gas detection for burn tower, replace exterior exhaust fans, upgrade fire props control
system, gas detector cover panel, and other components, as more specifically described in the Scope of
Services, attached hereto as Exhibit A. The Work shall commence on _March 18, 2024_and shall be
completed to the satisfaction of the City by _May 31, 2024_ unless such date is extended or otherwise
modified by the City in writing. In the event of a conflict or inconsistency between the text of the main
body of this Agreement and Exhibit A, the text of the main body of this Agreement shall prevail.
2. Payment. City shall pay Consultant an amount not to exceed: _THREE-HUNDRED
AND NINETY-SEVEN THOUSAND FOUR-HUNDRED AND EIGHTY-NINE DOLLARS
($397,489) for the full and satisfactory completion of the Work in accordance with the terms and
conditions of this Agreement. The amount stated above is the entire compensation payable to Consultant
for the Work performed hereunder, including all labor, materials, tools and equipment furnished by
Consultant.
City shall make payments, based on invoices received, for Work satisfactorily performed. City
shall have thirty (30) days from the receipt of an invoice to pay Consultant.
3. Independent Contractor. It is understood and agreed that this Agreement is not a contract
of employment and does not create an employer-employee relationship between the City and Consultant.
At all times Consultant shall be an independent contractor and City shall not control the manner of
Consultant accomplishing the Work. Consultant is not authorized to bind the City to any contracts or
other obligations without the express written consent of the City.
4. Indemnification. To the fullest extent permitted by law, Consultant shall indemnify,
defend (with counsel acceptable to the City), and hold harmless the City and its elected and appointed
officers, officials, employees, agents, contractors and consultants (collectively, the “City Indemnitees”)
from and against any and all liability, loss, damage, claims, expenses and costs (including, without
limitation, attorneys’ fees and costs of litigation) (collectively, “Liability”) of every nature arising out of
or in connection with Consultant’s performance of the Work or Consultant’s failure to comply with this
Agreement, except such Liability caused by the gross negligence or willful misconduct of the City
Indemnitees.
5. Insurance. Prior to beginning the Work and continuing throughout the term of this
Agreement, Consultant (and any subcontractors) shall, at Consultant’s (or subcontractor’s) sole cost and
expense, furnish the City with certificates of insurance evidencing that Consultant has obtained and
maintains insurance in the following amounts:
A.Workers’ Compensation that satisfies the minimum statutory limits.
B.Commercial General Liability and Property Damage Insurance in an amount not less than
ONE MILLION DOLLARS ($1,000,000) combined single limit per occurrence, TWO MILLION
DOLLARS ($2,000,000) annual aggregate, for bodily injury, property damage, products,
completed operations and contractual liability coverage. The policy shall also include coverage
EXHIBIT A
Short Form Services Agreement
[Rev:11/14/2016] 2
for liability arising out of the use and operation of any City-owned or City-furnished equipment used
or operated by the Consultant, its personnel, agents or subcontractors.
C. Comprehensive automobile insurance in an amount not less than ONE MILLION DOLLARS
($1,000,000) per occurrence for bodily injury and property damage including coverage for owned and
non-owned vehicles.
D.Professional Liability Insurance in an amount not less than ONE MILLION DOLLARS
($1,000,000) covering the licensed professionals’ errors and omissions.
All insurance policies shall be written on an occurrence basis and shall name the City
Indemnitees as additional insureds with any City insurance shall be secondary and in excess to
Consultant’s insurance. If the Consultant’s insurance policy includes a self-insured retention that must be
paid by a named insured as a precondition of the insurer’s liability, or which has the effect of providing
that payments of the self-insured retention by others, including additional insureds or insurers do not
serve to satisfy the self-insured retention, such provisions must be modified by special endorsement so as
to not apply to the additional insured coverage required by this agreement so as to not prevent any of the
parties to this agreement from satisfying or paying the self-insured retention required to be paid as a
precondition to the insurer’s liability. Additionally, the certificates of insurance must note whether the
policy does or does not include any self-insured retention and also must disclose the deductible. The
certificates shall contain a statement of obligation on the part of the carrier to notify City of any material
change, cancellation, termination or non-renewal of the coverage at least thirty (30) days in advance of
the effective date of any such material change, cancellation, termination or non-renewal. The City’s Risk
Manager may waive or modify any of the insurance requirements of this section.
6.Compliance with all Applicable Laws; Nondiscrimination. Consultant shall comply with
all applicable local, state and federal laws, regulations and ordinances in the performance of this
Agreement. Consultant shall not discriminate in the provision of service or in the employment of persons
engaged in the performance of this Agreement on account of race, color, national origin, ancestry,
religion, gender, marital status, sexual orientation, age, physical or mental disability in violation of any
applicable local, state or federal laws or regulations.
7.Termination. City may terminate or suspend this Agreement at any time and without
cause upon written notification to Consultant. Upon receipt of notice of termination or suspension,
Consultant shall immediately stop all work in progress under this Agreement. The City's right of
termination shall be in addition to all other remedies available under law to the City.
8.Prevailing Wage. Where applicable, the wages to be paid for a day's work to all classes
of laborers, workmen, or mechanics on the work contemplated by this Purchase Agreement, shall be not
less than the prevailing rate for a day’s work in the same trade or occupation in the locality within the
state where the work hereby contemplates to be performed as determined by the Director of Industrial
Relations pursuant to the Director’s authority under Labor Code Section 1770, et seq. Each laborer,
worker or mechanic employed by Consultant or by any subcontractor shall receive the wages herein
provided for. The Consultant shall pay two hundred dollars ($200), or whatever amount may be set by
Labor Code Section 1775, as may be amended, per day penalty for each worker paid less than prevailing
rate of per diem wages. The difference between the prevailing rate of per diem wages and the wage paid
to each worker shall be paid by the Consultant to each worker.
An error on the part of an awarding body does not relieve the Consultant from responsibility for payment
of the prevailing rate of per diem wages and penalties pursuant to Labor Code Sections 1770-1775. The
City will not recognize any claim for additional compensation because of the payment by the Consultant
for any wage rate in excess of prevailing wage rate set forth. The possibility of wage increases is one of
Short Form Services Agreement
[Rev:11/14/2016] 3
the elements to be considered by the Consultant.
(A) Posting of Schedule of Prevailing Wage Rates and Deductions. If the schedule of
prevailing wage rates is not attached hereto pursuant to Labor Code Section 1773.2, the Consultant shall
post at appropriate conspicuous points at the site of the project a schedule showing all determined
prevailing wage rates for the various classes of laborers and mechanics to be engaged in work on the
project under this contract and all deductions, if any, required by law to be made from unpaid wages
actually earned by the laborers and mechanics so engaged.
(B) Payroll Records. Each Consultant and subcontractor shall keep an accurate payroll
record, showing the name, address, social security number, work week, and the actual per diem wages
paid to each journeyman, apprentice, worker, or other employee employed by the Consultant in
connection with the public work. Such records shall be certified and submitted weekly as required by
Labor Code Section 1776.
9. Payment of Taxes; Tax Withholding. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal or state taxes. To be exempt
from tax withholding, Consultant must provide City with a valid California Franchise Tax Board form
590 (“Form 590”), as may be amended and such Form 590 shall be attached hereto and incorporated
herein as Exhibit B. Unless Consultant provides City with a valid Form 590 or other valid, written
evidence of an exemption or waiver from withholding, City may withhold California taxes from payments
to Consultant as required by law. Consultant shall obtain, and maintain on file for three (3) years after the
termination of this Agreement, Form 590s (or other written evidence of exemptions or waivers) from all
subcontractors. Consultant accepts sole responsibility for withholding taxes from any non-California
resident subcontractor and shall submit written documentation of compliance with Consultant’s
withholding duty to City upon request.
10. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement
shall continue in full force and effect.
11. Entire Agreement. This Agreement represents the entire and integrated agreement
between the Parties. This Agreement may be modified or amended only by a subsequent written
agreement signed by both Parties.
12. Non-Liability of Officials, Employees and Agents. No officer, official, employee or
agent of City shall be personally liable to Consultant in the event of any default or breach by City or for
any amount which may become due to Consultant pursuant to this Agreement.
13. Prevailing Party. In the event that either party to this Agreement commences any legal
action or proceeding (including but not limited to arbitration) to interpret the terms of this Agreement, the
prevailing party in such a proceeding shall be entitled to recover its reasonable attorney’s fees associated
with that legal action or proceeding.
14. Notice. All notices and other communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given (i) when received if
personally delivered; (ii) when received if transmitted by telecopy, if received during normal business
hours on a business day (or if not, the next business day after delivery) provided that such facsimile is
legible and that at the time such facsimile is sent the sending Party receives written confirmation of
receipt; (iii) if sent for next day delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express); and (iv) upon receipt, if sent by certified or registered mail, return receipt
requested. In each case notice shall be sent to the respective Parties as follows:
Short Form Services Agreement
[Rev:11/14/2016] 4
Contractor:
Burke Construction
15115 Torrey Pines Circle
Chowchilla , CA 93610
City:
City Clerk
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
15. Execution in Counterpart. This Agreement may be executed in counterparts and/or by
facsimile or other electronic means, and when each Party has signed and delivered at least one such
counterpart, each counterpart shall be deemed an original, and, when taken together with other signed
counterpart, shall constitute one Agreement, which shall be binding upon and effective as to all Parties.
16. Assignment, Governing Law. The Consultant may not assign any of Consultant’s
obligations under this Agreement without the City’s prior written approval. This Agreement is governed
by California law. The jurisdiction for any litigation arising from this Agreement shall be in the state of
California, and shall be venued in the County of San Mateo.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date written above.
CITY: BURKE DIVERSIFIED dba BURKE CONSTRUCTION CO.:
By: _____________________________ By:__________________________
Sharon Ranals, City Manager
Print Name: _ Jason E. Burke _
Title: __ President ____
APPROVED AS TO FORM:
____________________________
City Attorney
2729961.1
FIRE FACILITIES INC.
PROPOSAL 314 WILBURN ROAD
SUN PRAIRIE, WI 53590-9401
To:From:
Tunde Olayomi and Katie Bipes Steven Harms Date:October 25, 2023
Cummings Group Regional Manager Phone:1-800-929-3726 or (608) 327-4100
South San Francisco parts for tower repair 303-726-6013 Fax:1-866-639-7012 or (608) 834-1843
Proposal #5518 E-mail:[email protected]
Remarks:
This proposal is regarding the price requested for South San Francisco, CA .
The total estimated weight for these materials is 16,902.55 lbs.
The total price for this fire tower or parts, F.O.B. destination is $160,559.00 as described below:* See tax note below
Freight:$16,830.00
Freight + Material Price:$177,389.00
Price Includes The Following:
1. (13) new exterior door signs (including attachment hardware).
2. (33) New hold opens for all existing shutters and burn room doors (including attachment hardware).
3. All new exterior pre-hung doors (11 - 3070 and 1 - 6070) (including keyed alike hardware).
4. Replacement bar grating for all existing balconies (4' x 46'-6" long balcony, and [4] 4' x 11' long balconies).
5. (32) Interior & exterior operating lever latches for existing shutters and burn room doors.
6. (30) New spring closures for all existing burn room doors ([2] springs per door) (including attachment hardware).
7. (4) Replacement 3' x 7' Roll-Up Door(s) for elevator shaft (including attachment hardware).
8. Replacement roof paneling for both tower (25 'x 22') and residence (11' x 22') flat roofs (including attachment hardware).
9. (5) Replacement sets of (3) chains (15 chains total) for existing roof railing or parapet openings.
10. New perimeter roof railing for annex including (2) chain gates at sidewalls next to residence.
11. (2) New BTI Fire Training Door(s) - Includes (100) 1800 psi Breaching Pins - to replace existing power jamb doors.
12. (4) New Forged Swivel Rappelling Anchors (Rated for 10,000 lb Ultimate Load And 1,000 lb Working Load)
13. (1) Brass assembly with wheel valve for existing standpipe.
14. Westec insulating system for lining ceiling of 2nd floor BR (11' x 16', w/ bulkheads) w/ (4) wall corner trims & (2) Probes.
15. Westec insulating system for lining the ceiling of 3rd floor burn room (10' x 18') w/ (4) wall corner trims & (2) probes.
16. (13) Replacement burn room louver vents for all existing burn rooms.
17. (8) Quarts (2 gallon total) of classic beige touch up paint for exterior wall / trims.
18. (8) Pints (1 gallon total) of cedar red touch up paint for framed opening trims.
19. (5) New 16 Ga. Galv. Removable Cover With Handles, Hold Down Latches, and Connection Chain for existing roof curbs.
20. (6) New gap rails for interior stair openings.
21. (2) New Scout Temp. Meter(s): Data Logging, Internal Alarms, Relay For Ext. Alarms, Bluetooth Enabled
22. (4) New 100' thermocouple probes for attachment to new pyrometers listed above.
23. Replacement 10' Tall Fire Escape w/ platform (re replace existing).
24. Replacement 3'-0" x 4'-0" shutter for 2nd floor.
25. (9) Replacement End Rail Loops (#EPA-3)
Note:1. All new railing / bar grate / stairs to be Hot Dipped Galvanized and Meet NFPA 1402/Building Code Requirements
2. Exact dimensions of the room(s) layout will need to be provided if this becomes an order.
3. Existing trims will need to be removed and reused in new roof panel areas.
4. Milcor floor doors were not included in price above.
Westec Burn Room Insulation System (The Industry's Best Includes A 15 Year Limited Warranty With Over 450 Installations
Payment is due in full, 30 days from ship date. Prices quoted in U.S. Dollars. Prices include the
design, materials, fabrication, and freight only - foundation and erection labor prices only if shown. 3004.eff.0423
Applicable taxes may need to be added based on location. Prices effective 60 days from date of this proposal.1 of 1
"ASK BEFORE YOU BUY" - THE ONLY MAJOR STEEL FIRE TRAINING TOWER MANUFACTURED IN THE UNITED STATES
15115 Torrey Pines Circle
Chowchilla, CA 93610
559.201.9335 | burkediversified.com
CSLB No. 1028504 | DIR PWC No. 1000061093
October 22, 2023
City of South San Francisco
Attn: Lawrence Henriquez, P.E.
315 Maple Avenue
South San Francisco, CA 94080
Re: City of South San Francisco Fire Training Tower Maintenance
Revised Proposal to Include Additional Work Identified In TJC Technical Memorandum
Dear Mr. Henriquez,
Burke Diversified dba Burke Construction Co. is pleased to provide its revised proposal of Two
Hundred Twenty Thousand One Hundred Dollars ($220,100.00) to install parts furnished by Fire
Facilities as outlined in its proposal dated August 10, 2023. Our proposal specifically includes
the following:
- Unload and stage material in advance of installation if necessary.
- Collection and disposal of all packaging, crates, etc. from delivered materials.
The scope of work has increased, incorporating recommendations of TJC’s Technical
Memorandum including but not necessarily limited to the following:
- Rust removal and painting/spray galvanizing of floor joists and mezzanine framing
members per TJC Technical Memorandum.
- Removal and replacement of guardrail end cap assemblies (furnished by Fire Facilities)
If you have any questions, please do not hesitate to contact the undersigned at (559) 232-6181.
Sincerely,
Burke Construction Co.
Jason E. Burke
President
Short Form Services Agreement
[Rev:11/14/2016] 1
SOUTH SAN FRANCISCO SERVICES AGREEMENT
This Services Agreement (this “Agreement”) is made and entered into between the City of South
San Francisco, a municipal corporation (“City”) and Draeger, Inc.__, (“Consultant”) effective as of
December 11, 2023 (the “Effective Date”). City and Consultant are hereinafter collectively referred to as
(the “Parties”). In consideration of their mutual covenants, the Parties hereby agree as follows:
1. Scope of Services. Consultant shall provide the following services and/or materials (“the
Work”):__replace gas detection for burn tower, replace exterior exhaust fans, upgrade fire props control
system, gas detector cover panel, and other components, as more specifically described in the Scope of
Services, attached hereto as Exhibit A. The Work shall commence on __December 11, 2023_and shall be
completed to the satisfaction of the City by _March 8, 2024_ unless such date is extended or otherwise
modified by the City in writing. In the event of a conflict or inconsistency between the text of the main
body of this Agreement and Exhibit A, the text of the main body of this Agreement shall prevail.
2. Payment. City shall pay Consultant an amount not to exceed: _FIVE-HUNDRED AND
SEVEN THOUSAND FOUR-HUNDRED AND THIRTY-THREE DOLLARS ($507,433) for the full
and satisfactory completion of the Work in accordance with the terms and conditions of this Agreement.
The amount stated above is the entire compensation payable to Consultant for the Work performed
hereunder, including all labor, materials, tools and equipment furnished by Consultant.
City shall make payments, based on invoices received, for Work satisfactorily performed. City
shall have thirty (30) days from the receipt of an invoice to pay Consultant.
3. Independent Contractor. It is understood and agreed that this Agreement is not a contract
of employment and does not create an employer-employee relationship between the City and Consultant.
At all times Consultant shall be an independent contractor and City shall not control the manner of
Consultant accomplishing the Work. Consultant is not authorized to bind the City to any contracts or
other obligations without the express written consent of the City.
4. Indemnification. To the fullest extent permitted by law, Consultant shall indemnify,
defend (with counsel acceptable to the City), and hold harmless the City and its elected and appointed
officers, officials, employees, agents, contractors and consultants (collectively, the “City Indemnitees”)
from and against any and all liability, loss, damage, claims, expenses and costs (including, without
limitation, attorneys’ fees and costs of litigation) (collectively, “Liability”) of every nature arising out of
or in connection with Consultant’s performance of the Work or Consultant’s failure to comply with this
Agreement, except such Liability caused by the gross negligence or willful misconduct of the City
Indemnitees.
5. Insurance. Prior to beginning the Work and continuing throughout the term of this
Agreement, Consultant (and any subcontractors) shall, at Consultant’s (or subcontractor’s) sole cost and
expense, furnish the City with certificates of insurance evidencing that Consultant has obtained and
maintains insurance in the following amounts:
A.Workers’ Compensation that satisfies the minimum statutory limits.
B.Commercial General Liability and Property Damage Insurance in an amount not less than
ONE MILLION DOLLARS ($1,000,000) combined single limit per occurrence, TWO MILLION
DOLLARS ($2,000,000) annual aggregate, for bodily injury, property damage, products,
completed operations and contractual liability coverage. The policy shall also include coverage
for liability arising out of the use and operation of any City-owned or City-furnished equipment used
or operated by the Consultant, its personnel, agents or subcontractors.
EXHIBIT B
Short Form Services Agreement
[Rev:11/14/2016] 2
C. Comprehensive automobile insurance in an amount not less than ONE MILLION DOLLARS
($1,000,000) per occurrence for bodily injury and property damage including coverage for owned and
non-owned vehicles.
D.Professional Liability Insurance in an amount not less than ONE MILLION DOLLARS
($1,000,000) covering the licensed professionals’ errors and omissions.
All insurance policies shall be written on an occurrence basis and shall name the City
Indemnitees as additional insureds with any City insurance shall be secondary and in excess to
Consultant’s insurance. If the Consultant’s insurance policy includes a self-insured retention that must be
paid by a named insured as a precondition of the insurer’s liability, or which has the effect of providing
that payments of the self-insured retention by others, including additional insureds or insurers do not
serve to satisfy the self-insured retention, such provisions must be modified by special endorsement so as
to not apply to the additional insured coverage required by this agreement so as to not prevent any of the
parties to this agreement from satisfying or paying the self-insured retention required to be paid as a
precondition to the insurer’s liability. Additionally, the certificates of insurance must note whether the
policy does or does not include any self-insured retention and also must disclose the deductible. The
certificates shall contain a statement of obligation on the part of the carrier to notify City of any material
change, cancellation, termination or non-renewal of the coverage at least thirty (30) days in advance of
the effective date of any such material change, cancellation, termination or non-renewal. The City’s Risk
Manager may waive or modify any of the insurance requirements of this section.
6. Compliance with all Applicable Laws; Nondiscrimination. Consultant shall comply with
all applicable local, state and federal laws, regulations and ordinances in the performance of this
Agreement. Consultant shall not discriminate in the provision of service or in the employment of persons
engaged in the performance of this Agreement on account of race, color, national origin, ancestry,
religion, gender, marital status, sexual orientation, age, physical or mental disability in violation of any
applicable local, state or federal laws or regulations.
7.Termination. City may terminate or suspend this Agreement at any time and without
cause upon written notification to Consultant. Upon receipt of notice of termination or suspension,
Consultant shall immediately stop all work in progress under this Agreement. The City's right of
termination shall be in addition to all other remedies available under law to the City.
8.Prevailing Wage. Where applicable, the wages to be paid for a day's work to all classes
of laborers, workmen, or mechanics on the work contemplated by this Purchase Agreement, shall be not
less than the prevailing rate for a day’s work in the same trade or occupation in the locality within the
state where the work hereby contemplates to be performed as determined by the Director of Industrial
Relations pursuant to the Director’s authority under Labor Code Section 1770, et seq. Each laborer,
worker or mechanic employed by Consultant or by any subcontractor shall receive the wages herein
provided for. The Consultant shall pay two hundred dollars ($200), or whatever amount may be set by
Labor Code Section 1775, as may be amended, per day penalty for each worker paid less than prevailing
rate of per diem wages. The difference between the prevailing rate of per diem wages and the wage paid
to each worker shall be paid by the Consultant to each worker.
An error on the part of an awarding body does not relieve the Consultant from responsibility for payment
of the prevailing rate of per diem wages and penalties pursuant to Labor Code Sections 1770-1775. The
City will not recognize any claim for additional compensation because of the payment by the Consultant
for any wage rate in excess of prevailing wage rate set forth. The possibility of wage increases is one of
the elements to be considered by the Consultant.
Short Form Services Agreement
[Rev:11/14/2016] 3
(A) Posting of Schedule of Prevailing Wage Rates and Deductions. If the schedule of
prevailing wage rates is not attached hereto pursuant to Labor Code Section 1773.2, the Consultant shall
post at appropriate conspicuous points at the site of the project a schedule showing all determined
prevailing wage rates for the various classes of laborers and mechanics to be engaged in work on the
project under this contract and all deductions, if any, required by law to be made from unpaid wages
actually earned by the laborers and mechanics so engaged.
(B) Payroll Records. Each Consultant and subcontractor shall keep an accurate payroll
record, showing the name, address, social security number, work week, and the actual per diem wages
paid to each journeyman, apprentice, worker, or other employee employed by the Consultant in
connection with the public work. Such records shall be certified and submitted weekly as required by
Labor Code Section 1776.
9. Payment of Taxes; Tax Withholding. Consultant is solely responsible for the payment of
employment taxes incurred under this Agreement and any similar federal or state taxes. To be exempt
from tax withholding, Consultant must provide City with a valid California Franchise Tax Board form
590 (“Form 590”), as may be amended and such Form 590 shall be attached hereto and incorporated
herein as Exhibit B. Unless Consultant provides City with a valid Form 590 or other valid, written
evidence of an exemption or waiver from withholding, City may withhold California taxes from payments
to Consultant as required by law. Consultant shall obtain, and maintain on file for three (3) years after the
termination of this Agreement, Form 590s (or other written evidence of exemptions or waivers) from all
subcontractors. Consultant accepts sole responsibility for withholding taxes from any non-California
resident subcontractor and shall submit written documentation of compliance with Consultant’s
withholding duty to City upon request.
10. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement
shall continue in full force and effect.
11. Entire Agreement. This Agreement represents the entire and integrated agreement
between the Parties. This Agreement may be modified or amended only by a subsequent written
agreement signed by both Parties.
12. Non-Liability of Officials, Employees and Agents. No officer, official, employee or
agent of City shall be personally liable to Consultant in the event of any default or breach by City or for
any amount which may become due to Consultant pursuant to this Agreement.
13. Prevailing Party. In the event that either party to this Agreement commences any legal
action or proceeding (including but not limited to arbitration) to interpret the terms of this Agreement, the
prevailing party in such a proceeding shall be entitled to recover its reasonable attorney’s fees associated
with that legal action or proceeding.
14. Notice. All notices and other communications which are required or may be given under
this Agreement shall be in writing and shall be deemed to have been duly given (i) when received if
personally delivered; (ii) when received if transmitted by telecopy, if received during normal business
hours on a business day (or if not, the next business day after delivery) provided that such facsimile is
legible and that at the time such facsimile is sent the sending Party receives written confirmation of
receipt; (iii) if sent for next day delivery to a domestic address by recognized overnight delivery service
(e.g., Federal Express); and (iv) upon receipt, if sent by certified or registered mail, return receipt
requested. In each case notice shall be sent to the respective Parties as follows:
Short Form Services Agreement
[Rev:11/14/2016] 4
Contractor:
Draeger, Inc.
7256 S. Sam Houston W Pkwy, Suite 100
Houston, Texas 77085
City:
City Clerk
City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
15.Execution in Counterpart. This Agreement may be executed in counterparts and/or by
facsimile or other electronic means, and when each Party has signed and delivered at least one such
counterpart, each counterpart shall be deemed an original, and, when taken together with other signed
counterpart, shall constitute one Agreement, which shall be binding upon and effective as to all Parties.
16.Assignment, Governing Law. The Consultant may not assign any of Consultant’s
obligations under this Agreement without the City’s prior written approval. This Agreement is governed
by California law. The jurisdiction for any litigation arising from this Agreement shall be in the state of
California, and shall be venued in the County of San Mateo.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date written above.
CITY: DRAEGER, INC.:
By: _____________________________ By:__________________________
Sharon Ranals, City Manager
Print Name: _ John Wilson __
Title: __ ______________
By: __________________________
Print Name: ____Graeme Roberts__
Title: _________________________
APPROVED AS TO FORM:
____________________________
City Attorney
2729961.1
Dear Customer,
Thank you for your inquiry. Please find enclosed our corresponding offer.
If you have any further questions, please do not hesitate to contact us.
Quotation no.: 136213173
Responsible: MATT LUCHETTA
Best regards
Draeger Inc.
This document has been electronically generated and is valid without a signature.
Customer
Draeger Inc.Remit to: Remit to: Remit US Wire Transfers to:
Our Tax ID: 23-1699096 LOCKBOX (Standard USPS)LOCKBOX (Overnight)Account Name: Draeger Inc.
3135 Quarry Road; Telford, PA 18969 Draeger, Inc. FIS Lockbox Processing Account Number: 00-494-936
An Equal Opportunity Employer M / F / V / H PO Box 13369 Lockbox #13369 Transit Routing: 021001033
Telephone 800-437-2437 Newark, New Jersey 100 Grove Road SWIFT: BKTRUS33
http://www.draeger.com 07101-3362 Suite E Deutsche Bank Trust Company Americas
West Deptford, NJ 08066 60 Wall Street 25th Fl, New York, NY 10005
Quotation
Customer no.Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer 91172728
SOUTH SAN FRANCISCO FIRE DEPAR
480 N CANAL ST
SOUTH SAN FRANCISCO CA 94080-4
Your request
RFQ REVISION DATE: 09/25/2023
Ship-To party 91172728
SOUTH SAN FRANCISCO FIRE DEPT
480 N CANAL ST
SOUTH SAN FRANCISCO CA 94080
Telephone: 626-614-7975
E-mail: [email protected]
SOUTH SAN FRANCISCO FIRE DEPARTMENT
480 N CANAL ST
SOUTH SAN FRANCISCO CA 94080-4603
0010 1EA 1903015 GAS DETECTION REPLACEMENT &
SERVICE 49,620.99 49,620.99
- Includes site install and service by
Dräger personnel.
- 12-month limited parts warranty.
- Fully replace Gas Detection for Burn
Tower.
- Nine (9) Draeger Polytron Gas
Detector replacements, includes
calibration and connection to existing
control system
- Calibration kit with zero and span gas
included for regular monthly calibration by
customer
- Reuse wiring and conduit between gas
detectors and control panels.
- Reuse gas detector stainless shrouds
and panels.
- Perform overall system service to clean,
test and inspect all gas and electrical
components. Perform detailed technical
inspection to confirm scope of system
upgrade is correct. Pricing information for
subsequent work activities may be
revised following this visit.
Note: This work must be performed to
continue with items 20 and/or 30.
0020 1EA 1903015 REPLACE EXTERIOR ESTOP 3,955.45 3,955.45
- Material supply only. See line 0070 for
lump sum cost of install and
commissioning by Dräger personnel.
- 12-month limited parts warranty.
- Exterior Estop identified as requiring
replacement.
- 7x total E-stops located at the Training
Tower. 6x interior and 1x exterior.
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no.Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
91172728Page 2 / 8
PLEASE SUBMIT / REFER TO THIS
QUOTATION WHEN PLACING YOUR
ORDER
- Interior E-stop condition is okay and is
not included in replacement
- If additional E-stops are desired to be
replaced this item may be incremented
for multiple units.
- Reuse wiring and conduit between
E-stop and control panels.
- Renew or replace any conduit fittings
showing signs of corrosion
Fire Props Control System Upgr
Full Building System Service. Upgrade of
existing fire training systems to include
the following features:
- Item 10 must be completed prior to or in
conjunction with this work
- Interior Burn Building: Pendant upgrade,
replace body/switches, upgrade
communications to Wifi protocol
- Interior Burn Building: Control Panel
upgrade, new touch-screens, upgrade
control screen program. WiFi enable for
WLAN, upgrade to tablet / iPad control.
(iPad not included)
- Interior Burn Building: Replace building
industrial panels with stainless steel
NEMA panels, reuse gas valve trains and
controls. Reuse building services /
conduit / pipe where possible. Reinstall
conduit / piping where necessary.
NOTE: selection of this option will require
several tear-out and reinstallation trips,
and access to the burn building for ~10
weeks (burn building will be out of
commission for 10 weeks).
0040 1EA 1903015 COVER HALLWAY GAS DETECTOR 711.00 711.00
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no.Quotation no. Date of offer
91172728 136213173 09/28/2023
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Payer
91172728Page 3 / 8
0030 1EA 1903015 FIRE PROPS CONTROL SYSTEM
UPGRADE 238,143.73 238,143.73
- Material supply only. See line 0070 for
lump sum cost of install and
commissioning by Dräger personnel.
- 12-month limited parts warranty.
- Gas Detector Panel on Level 2 identified
as corroded.
- 9x total Gas Detectors located at the
Training Tower. 6x in burn rooms and 2x
in hallways.
- Burn Room Gas Detectors have
additional Stainless Steel Cover Panel.
These are in good condition and not
included in replacement
- Similar Stainless Steel Cover Panel to
be installed on hallway gas detector to
prevent further corrosion
- Reuse wiring and conduit between Gas
Detector and control panels.
- Renew or replace any conduit fittings
showing signs of corrosion
Note: Gas Detector replacement was
previously advised based on obsolete
model of Gas Detector in use. This Cover
Panel does not address this.
0050 1EA 1903015 GAS DETECTOR COVER PANEL 711.00 711.00
- Material supply only. See line 0070 for
lump sum cost of install and
commissioning by Dräger personnel.
- 12-month limited parts warranty.
- Gas Detector Panel on Level 4 identified
as corroded.
- 9x total Gas Detectors located at the
Training Tower. 6x in burn rooms and 2x
in hallways.
- Burn Room Gas Detectors have
additional Stainless Steel Cover Panel.
These are in good condition and not
included in replacement
- Similar Stainless Steel Cover Panel to
be installed on hallway gas detector to
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no.Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
91172728Page 4 / 8
prevent further corrosion
- Reuse wiring and conduit between Gas
Detector and control panels.
- Renew or replace any conduit fittings
showing signs of corrosion
Note: Gas Detector replacement was
previously advised based on obsolete
model of Gas Detector in use. This Cover
Panel does not address this.
0060 1EA 1903015 REPLACE EXHAUST FAN 40,916.82 40,916.82
- Material supply only. See line 0070 for
lump sum cost of install and
commissioning by Dräger personnel.
- 12-month limited parts warranty.
- Exterior Exhaust Fans identified as
requiring replacement.
- 3x total Exhaust Fans located at the
Training Tower
- If some Fans are not desired to be
replaced this item may be reduced for 1
or 2 units.
- Reuse wiring and conduit between
Exhaust Fan and control panels.
- Replace Exhaust Fan disconnect, speed
sensor mounted at fan location
- Renew or replace any conduit fittings
showing signs of corrosion
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no.Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
91172728Page 5 / 8
0070 1EA 1903015 INSTALLATION & COMMISSIONING 116,768.13 116,768.13
- Line 0020 must be completed prior to or
in conjunction with this work
- 12-month limited parts warranty.
- Dräger scope for site installation to
include equipment rentals, disposal of old
equipment, connection, commissioning
- Dräger scope excludes site prep and
site utilities / supply (underground conduit
and pipe, permits, inspections
- Dräger scope includes travel-cost
provisions for installing line items 0010 -
0060 in one trip. (i.e. travel costs in the
case of separate purchases/installation
will be quoted separately). Overall, this
work will require two trips, and access to
the burn building for ~2 weeks minimum
(meaning the burn building will be out of
commission for 2 weeks).
- "Scope-of-work Split" to be confirmed
along with technical spec at time of
contract.
- Timing of installation to be confirmed
along with schedule at time of contract.
- Please note: Dräger highly recommends
full supply system testing. Pressure
testing of piping, inspection of tank farm,
and inspection of electrical supply prior to
our install. Failure of either the
tank-farm/propane supply, or the
electrical supply will delay install and
incur additional costs.
- Damaged equipment, failed equipment,
any unforeseen component replacement,
labor charges for service will be quoted at
standard rates.
--------------------------------------- ----------- ----- ------------
Net value excl. Sales Tax 462,914.12
+ Net Sales Tax 44,519.17
--------------------------------------- ----------- ----- ------------
Total amount 507,433.29
======================================= =========== ===== ============
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no.Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
91172728Page 6 / 8
0080 1EA 1903010 FREIGHT TO CUSTOMER SITE 12,087.00 12,087.00
Payment terms:
30 days after invoice date
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no.Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
91172728Page 7 / 8
PLEASE CHECK THIS QUOTE CAREFULLY FOR
ACCURACY IN PRICING, PART # AND
DESCRIPTION. Contact Customer Service
immediately if there are any discrepancies. This
acknowledgement and note constitutes the entire
agreement with respect to the contemplated
transaction and supersedes all previous
negotiations, proposals, writings, advertisements,
or publications.
Draeger, Inc. and the Customer agree that the
purchase of any product or service pursuant to
this document is subject to the attached terms
and conditions, which are incorporated by
reference.
Offer valid until:12/28/2023
Delivery time to be coordinated with customer
training schedule and burn building availability.
Subject to project backlog at time of order entry.
A. 25% of total project price will be invoiced on
notice to proceed.
B. 50% of total project price will be invoiced when
equipment is shipped.
C. 25% will be invoiced when installation and
training are complete and system is handed over.
In the event Customer is not ready for product to be
delivered on the confirmed delivery date, Customer
must notify Draeger, Inc. 30 days prior to confirmed
delivery date to reschedule. If Customer fails to
provide notification, Draeger, Inc. may invoice
Customer for products and any additional costs to
hold product until Customer is ready for delivery.
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no.Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
91172728Page 8 / 8
Notes:
1) Please note prevailing wages are included in this
quotation.
2) All funds are in US Dollars.
3) Bonding price, if required, not included.
4) Price information valid 90 days from date on form.
Pricing is subject to change once quotation is past
validity.
5) Any building or electrical contractor permits are
responsibility of customer and are not included.
6) Warranty is 12 months after handover.
7) Training Systems which have completed fabrication
but cannot be delivered due to delays on the part of
the customer, may be charged a Storage Fee in the
amount of 2% of the project value, to be assessed
every thirty days after an initial 30-day free storage
period has passed, until delivery is possible.
8) Milestone Payment terms:
1
U.S. Terms and Conditions of Sale (Safety)
Effective – July 2023
4877-6831-8559, v. 4
DRAEGER, INC. TERMS AND CONDITIONS OF SALE (SAFETY)
1. GENERAL. These terms and conditions are integral to the agreement governing
the sale and purchase of goods (“Goods”) and service (“Service”) between the seller,
Draeger, Inc. (“Draeger”), and the purchaser (“Customer”). Goods and Service are
referred to herein collectively as “Product.” The agreement governing this sale and
purchase of Product (“Agreement”) consists of the following, all of which are hereby
incorporated herein by reference: (i) these terms and conditions, (ii) the written sale or
service agreement, if any, signed by Draeger and Customer (referred to herein singularly
as “Party” and collectively as the “Parties”), including schedules thereto, that is in effect
on the date the applicable Purchase Order (“PO”) is delivered to Draeger, and any
amendments thereto (“Contract Document”), (iii) any price quote (“Quote”), and (iv) any
PO submitted by Customer with respect to a Quote; provided, however, Draeger shall not
be bound by any terms, conditions, or other provisions in a PO that are different from, in
addition to, or inconsistent with, the other provisions of this Agreement.
2. PRICES.
(a) Prices are as stated in the Contract Document. If no Contract Document is in
effect at the time the order is filled, the prices shall be as stated on the applicable Quote;
provided, that such Quote is valid at that time. In all other cases, prices are those currently
in effect on Draeger’s standard price list at time of shipment. Unless otherwise stated in
writing by Draeger, prices include the cost of standard domestic packing. Prices exclude
charges for freight, unloading, storage, insurance, taxes, excises, fees, duties, or other
charges related to Product. Customer shall bear the cost of all applicable sales, use,
property, excise, and manufacturer’s taxes and any duties, license, or similar fees, which
may be imposed upon the sale, use, or performance of the Product.
(b) If this Agreement is for multiple years, then the prices set forth herein are
fixed only for the first 12 months hereof. Thereafter, Draeger may adjust the prices (“Price
Adjustment”), pursuant to a proposed Price Adjustment notice (“Price Adjustment
Notice”). Draeger shall provide the Price Adjustment Notice to Customer, in writing,
specifying the adjustment, no less than 90 days in advance of a proposed Price
Adjustment (“Price Adjustment Notice Period”). If Customer objects to the proposed
Price Adjustment during the Price Adjustment Notice Period, then, notwithstanding
anything else in this Agreement to the contrary, Draeger may cancel this Agreement with
60 days’ notice without penalty (“Price Termination Notice”). During the 60-day Price
Termination Notice period, Customer may continue to purchase Products at the then-
current price. If Customer does not object to the proposed Price Adjustment, then such
proposed Price Adjustment shall go into effect on the date stated in the proposed Price
Adjustment Notice and shall be incorporated herein by reference. Draeger shall fill all
POs received prior to the effective date of the Price Adjustment or, if earlier, the
termination of this Agreement, at the then-current prices. Unless otherwise agreed to by
Draeger and Customer, all other terms, conditions, and provisions of this Agreement shall
continue unchanged and remain in full force and effect after any such Price Adjustment.
A Price Adjustment does not obligate any of the Parties to agree to any other modification
of this Agreement.
3. PAYMENT TERMS.
(a) Unless otherwise agreed in writing, Customer shall make payment in full
without any set-off (for any reason) no later than 30 days from the date of invoice in
United States Dollars (“USD”). Partial shipments of Goods shall be invoiced as shipped.
Draeger reserves the right to require (i) payment in advance, (ii) cash on delivery, or (iii)
a modification of credit terms.
(b) Notwithstanding the foregoing, payment on advance orders paid by credit
card shall be charged and paid for at that time of the order. All payments made with
personal credit cards may include an administrative fee of up to 2.8% of the value on the
invoice. Payments made through corporate purchasing credit cards may include an
administrative fee of up to 2.5% of the value on the invoice.
(c) Draeger reserves the right in the event of late payment: (i) to suspend all
deliveries or Service or to cancel any of its outstanding obligations under this Agreement;
or (ii) to charge interest on the late payment calculated on a day-to-day basis until the
actual date of payment at the lower of (A) an annual rate of 12% or (B) the maximum rate
allowed by law. Such remedies are in addition to any other rights or remedies available
to Draeger under the law.
(d) If Customer pays less than the full amount due, the payment will be applied
toward the outstanding balance. Draeger’s acceptance of part of the amount due shall not
interfere with Draeger’s right to recover the balance of the amount due or right to pursue
any other right or remedy under the law.
(e) All POs are subject to credit approval by Draeger.
4. DELIVERY, INSTALLATION, RISK, AND TITLE.
(a) Title to, and risk of loss for, the Goods shall pass to Customer upon delivery
as determined on the basis of FCA (INCOTERMS 2020) prepay and add all related
transportation and insurance costs as a separate line item to the invoice to Customer unless
Customer provides their own transportation provider and/or account number in which
case the delivery is determined on the basis of EXW (INCOTERMS 2020). Upon passage
of title of the Goods from Draeger to Customer or, if earlier, the date as of which Draeger
makes a commercially reasonable attempt to deliver Goods, Customer shall be
responsible and liable for, and agrees to defend and indemnify Draeger against, all claims,
injuries, losses fines, penalties, damages, or costs resulting from Customer’s storage,
handling, disposal, release, use, or resale of the Goods or their containers.
(b) Delivery, installation, and completion dates are only approximate and
Draeger will not be liable for failure to meet such dates. Notwithstanding the foregoing,
Draeger shall use reasonable efforts to meet quoted delivery, installation, and completion
dates. Partial shipments may be made at Draeger’s sole discretion or, with Draeger’s
consent, at Customer’s request.
(c) Unless stated otherwise in writing by Draeger, freight and transportation
costs, including standard ground transportation, packing, custom duties, and other similar
charges, shall be borne as follows: (i) for PO orders equal to or less than $15,000,
Customer shall bear all such costs, (ii) for PO orders greater than $15,000, Draeger shall
bear all such costs. Notwithstanding the foregoing, in the event Customer requests an
expedited order, Customer shall bear the additional costs.
(d) Customer shall use commercially reasonable efforts to allow for timely
delivery of Goods, including, without limitation, providing instructions, granting access
during Customer’s business hours (or such other time agreed by the Parties), and
obtaining any required licenses or permits.
(e) Installation costs, if applicable, are included in the price of Goods, unless
indicated as a separate Service on the Contract Document or Quote.
Customer is responsible for ensuring that the installation site is fully prepared prior to
installation and for bearing all costs necessary to prepare site for installation in
accordance with Draeger’s instructions, including, without limitation, (i) engaging in any
required labor, (ii) acquiring any required materials, (iii) to the extent applicable, ensuring
that the Customer’s network (A) meets any Draeger specific requirements, and (B) is
fully functioning as mandated by all manuals and other instructions requested of
Customer by Draeger, and (iv) ensuring compliance with all governmental requirements,
including without limitation, all certifications and approvals for installation and
operation. Customer shall provide to Draeger or its subcontractor, as applicable, access
to the installation site and, if required, safe and secure space on site for storage of Goods
and equipment prior to and during installation.
5. ACCEPTANCE. Customer shall inspect Goods received and notify Draeger of
any Nonconforming Goods prior to acceptance. Goods shall be deemed to be accepted
by Customer 15 days from date of delivery; provided, however, that (i) if earlier,
acceptance shall occur immediately on the first day Customer uses Product, or (ii) with
respect to Goods requiring installation (other than connection to Customer network),
acceptance shall occur on the earlier of 5 days after installation or 30 days after delivery.
Installation shall be deemed to be completed upon final verification under Draeger’s
standard procedures that Goods meet all applicable written performance obligations. For
this purpose, “Nonconforming Goods” means (i) Goods that are different from those
identified on the PO confirmation or (ii) Goods with label or packaging that incorrectly
identifies contents. Draeger shall, at its sole discretion, replace Nonconforming Goods
with conforming Goods or credit or refund the price of Nonconforming Goods. Such
remedy is the exclusive remedy for Nonconforming Goods. Draeger shall bear the
shipping costs related to return and replacement of Nonconforming Goods.
6. CHANGES AND RETURNS.
(a) POs may not be changed or canceled after PO is accepted by Draeger.
(b) Draeger reserves the right, subject to written notice, to substitute Goods or
change specifications of Goods, which, in Draeger’s judgment, does not materially affect
the installation, performance, function, or price thereof. Goods may only be returned
with prior authorization from Draeger. Eligible returns must follow the Customer
Material Return Process in effect at the time of return as specified at
https://www.draeger.com/Library/Content/RMA-Process-Safety-2023.pdf and which is
hereby incorporated herein by reference (“RMA Process”). Unless warranty applies or
in the case of a Nonconforming Good, restocking fees of up to 25% may apply.
7. DELAY OR FAILURE TO PERFORM OBLIGATIONS.
(a) Draeger shall not be deemed to be in breach or otherwise liable for any delay
or failure in performance of any of its obligations under this Agreement caused, in whole
or in part, by any act or omission of Customer or its agents, subcontractors, or employees.
(b) Neither Party shall be liable for failure to perform obligations (except for
payment obligations) under this Agreement to the extent that such failure arises out of
events beyond its reasonable control including, but not limited to, acts of government or
compliance with any governmental laws, rules or regulations, acts of God, war, terrorist
threats or acts, civil disturbance, fire, or other casualty, pandemic, strike, labor dispute,
or unavailability of labor, carriers, raw materials, power, or supplies. Any delivery date
may be extended, at Draeger’s option, to the extent of any delay resulting from any such
event.
8. WARRANTY.
(a) Goods. Draeger warrants that under normal use and with prescribed
maintenance, storage, and care, Goods are free from defects in material and workmanship
for the warranty period. Except as provided in a separate warranty statement in Goods
manual or otherwise provided with Goods, the warranty period for new capital equipment
is 12 months from date of delivery and disposable and consumable Goods (excluding
sensors) are warranted at time of delivery only. All other Goods are warranted for 90
days from (i) date of delivery or (ii) in the case of software, date of implementation sign-
off, or first productive use. Warranty is conditioned on (i) Customer providing immediate
written notice of warranty-related claim to Draeger and following RMA Process, (ii) no
repairs, modifications, or alterations being made to Goods other than by Draeger or its
authorized representatives, (iii) Customer handling, using, storing, installing, operating,
cleaning, and maintaining Goods in compliance with the instructions and specifications
provided with Goods or incorporated into this Agreement, (iv) use of Goods only for the
use intended by Draeger, (v) defect not related to the attachment of Goods to non-Draeger
2
U.S. Terms and Conditions of Sale (Safety)
Effective – July 2023
4877-6831-8559, v. 4
supplied equipment or to Customer’s network issues, (vi) Customer having fulfilled its
payment obligations for Goods, and (vii) an inspection by Draeger that reveals that
Customer’s claim is valid under the terms of the warranty. Customer’s remedy for a
breach of this warranty is limited to repair, replacement, credit, or refund, at the sole
option of Draeger. Repair or replacement may be with parts or product that are new,
used, or refurbished. Repairs or replacements shall not interrupt, extend, or prolong the
warranty period.
(b) Service. Draeger warrants that the Service shall be performed in a
professional manner in accordance with generally recognized industry standards for
similar service. Claims for breach of this Service warranty must be submitted to Draeger
in writing within 90 days of the completion of Service. Customer’s remedy for breach of
Service warranty is limited to reperformance, credit, or refund, at the sole option of
Draeger.
(c) Third-Party Product. If this Agreement includes the sale of third-party
product not manufactured by Draeger or any of its affiliates, such products are provided
to Customer solely at the direction of Customer with no recommendation by Draeger.
Draeger makes no warranty for any third-party product. Customer’s sole warranty for
any third-party product, if any, is the original manufacturer’s warranty, which Draeger
agrees to pass on to Customer, as applicable. The obligation of Customer to pay Draeger
for the third-party product is absolute and unconditional, and Customer waives and
releases Draeger from all claims, damages, and losses arising out of such third-party
product regardless of any claims Customer may have regarding such third-party product.
(d) No Other Warranties. THE WARRANTIES IN THIS SECTION 9 ARE
THE SOLE AND EXCLUSIVE WARRANTIES MADE WITH RESPECT TO
PRODUCT. DRAEGER MAKES NO OTHER WARRANTY EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, TITLE,
THIRD-PARTY NONINFRINGEMENT, COURSE OF DEALING, AND USAGE
OF TRADE. DRAEGER DOES NOT WARRANT OR GUARANTEE THAT ANY
PRODUCT WILL BE SECURE FROM CYBER THREATS, HACKING, OR
SIMILARLY MALICIOUS ACTIVITY. DRAEGER DOES NOT WARRANT
ANY CUSTOMER OR THIRD-PARTY PROVIDED NETWORK OR THE
PERFORMANCE OF PRODUCT AS IMPACTED BY SUCH NETWORK
CONNECTION.
9. SERVICE BRIDGE SOLUTION. If Customer’s use of Goods purchased is
likely to be interrupted or delayed for an extended period due to the need to service the
Goods, delay in delivery, or recall, upon Customer’s request, Draeger may, to the extent
available, temporarily place reasonably comparable equipment with Customer for its use
until such time as the affected Goods are returned, repaired, or delivered, as applicable.
Such placement is part of Draeger’s warranty, contracted Service, or recall obligations,
as applicable, and provided at no additional charge to Customer. Customer’s option for
such temporary use of equipment shall mitigate any damages or losses, if any, that would
otherwise be incurred by Customer for such period.
10. INDEMNITY. To the extent permitted under applicable law, Draeger and
Customer (each as “Indemnitor”) shall indemnify the other Party and its affiliates
(collectively “Indemnitee”) from and against all third-party claims alleging bodily injury,
death, or damage to the third-party’s tangible property, but only to the extent caused by
the Indemnitor’s negligence or willful misconduct. No part of Customer’s sites is
considered third-party property for purposes of this indemnity. Indemnitee shall provide
Indemnitor with prompt written notice of any third-party claims covered by this Section
10. Indemnitor has the unrestricted right to select and hire counsel and the exclusive right
to conduct the legal defense or settle the claim on the Indemnitee’s behalf; subject to
Indemnitee’s consent, which shall not be unreasonably withheld or delayed. Indemnitor
shall not make any admissions that might be prejudicial to the Indemnitee.
11. INSURANCE. If during the term of this Agreement Draeger may need access to
Customer’s premises to perform Service or for other reasons, Customer shall, at its own
expense, maintain and carry insurance in full force and effect which includes, but is not
limited to, commercial general liability in a sum no less than $1,000,000 per occurrence
and $5,000,000 in the aggregate with financially sound and reputable insurers. Upon
Draeger's request, Customer shall provide Draeger with a certificate of insurance from
Customer's insurer evidencing the insurance coverage specified in this Agreement and
which names Draeger as an additional insured. Customer shall provide Draeger with 30
days advance written notice in the event of a cancellation or material change in
Customer's insurance policy. Except where prohibited by law, Customer shall require its
insurer to waive all rights of subrogation against Draeger's insurers and Draeger.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY PARTY BE
LIABLE TO THE OTHER PARTY OR THEIR AFFILIATES, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
INDEMNITY, OR ANY OTHER LEGAL THEORY, FOR LOST PROFITS OR
LOST STORED, TRANSMITTED, OR RECORDED DATA, OR FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY
DAMAGES, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WITH
RESPECT TO ANY MATTERS RELATING TO THIS AGREEMENT,
REGARDLESS OF WHETHER THE OTHER PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF THE SAME. DRAEGER’S MAXIMUM LIABILITY
UNDER THIS AGREEMENT IS THE ACTUAL PURCHASE PRICE RECEIVED
BY DRAEGER FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM.
13. PATENT, TRADEMARK, AND OTHER INFRINGEMENT CLAIMS. In the
event of any claim, suit, or proceeding brought against Customer alleging any Draeger
manufactured Good violates any patent, trademark, or copyright about which Customer
notifies Draeger in writing within 5 days after Customer becomes aware of the allegation,
Draeger shall, at its option and expense, (i) defend such claim, suit, or proceeding, (ii)
procure the Customer’s right to use the Good, (iii) remove or modify the Good to avoid
infringement, or (iv) allow Customer to return the Good and refund the purchase price
paid to Customer less reasonable depreciation for Customer’s use of the Good. In the
event of defense of such claim, suit, or proceeding, Customer shall give Draeger
information, assistance, and exclusive authority to fully control the defense and
settlement of such claim, suit or proceeding. This indemnity shall not apply if Customer
modifies or combines, operates, or uses the Good with any product, data, software,
apparatus, or program not provided by Draeger and Customer shall indemnify and hold
Draeger harmless against any liability or expense, including reasonable attorneys’ fees,
incurred by Draeger in connection therewith.
14. RIGHTS IN SOFTWARE, DOCUMENTATION, AND INTELLECTUAL
PROPERTY. To the extent software, data, or other documentation or information
(collectively, “Software”) is embedded in or delivered with any Goods sold under this
Agreement, the sale of such Goods shall not constitute the transfer of the ownership rights
in such Software. The Software shall remain Draeger’s property and Draeger grants to
Customer a non-exclusive, non-transferable license solely to use the Software for the
purpose, and in the manner, for which the Software was designed and produced.
Customer shall not modify, reverse engineer, or create derivative works based on any of
the Software, or permit any third party to do so. In addition, to the extent any third-party
software is included in the Software, Customer will comply with any third-party software
license terms provided by Draeger to Customer. Software that is provided separately to
Customer as a Product is not included under this Section 14, but is governed under a
separate license agreement, and may be subject to a licensing fee.
15. DATA PROTECTION. The Parties agree to comply with any privacy and data
protection laws, including without limitation the General Data Protection Regulation
(GDPR), to the extent relevant to the exchange of data between the Parties or storage or
exchange of data in connection with Product provided hereunder.
16. TERMINATION. In addition to any remedies that may be provided under these
terms and conditions, Draeger may terminate this Agreement or any part thereof with
immediate effect upon written notice to Customer, if Customer: (i) fails to pay any
amount when due under this Agreement and such failure continues for 30 days after
Customer's receipt of written notice of nonpayment; (ii) has not otherwise performed or
complied with any obligations of this Agreement, in whole or in part; (iii) becomes
insolvent, files a petition for bankruptcy or commences or has commenced against it
proceedings relating to bankruptcy, receivership, reorganization or assignment for the
benefit of creditors; or (iv) undergoes a change of control or ownership.
17. CONFIDENTIAL INFORMATION. All non-public, confidential, or proprietary
information of Draeger disclosed by Draeger to Customer, whether disclosed orally or
disclosed or accessed in written, electronic, or other form or media, and whether or not
marked, designated, or otherwise identified as "confidential" in connection with this
Agreement is confidential, solely for the use of performing this Agreement and may not
be disclosed or copied unless authorized in advance by Draeger in writing. This Section
does not apply to information that is: (a) in the public domain; (b) known to Customer at
the time of disclosure without any confidentiality or restriction on use; or (c) rightfully
obtained by Customer on a non-confidential basis from a third-party.
18. OTHER TERMS.
(a) Compliance with Laws. The Parties shall comply with all applicable laws
and regulations, including, but not limited to, any laws and regulations relating to the
import, or export, of any Product or associated technical data.
(b) Benefit and Assignment. Neither Party may assign, subcontract, or delegate
any rights or obligations under this Agreement, without the prior written consent of the
other Party, unless otherwise stated in this Agreement. Notwithstanding the foregoing,
Draeger may assign any of its rights and obligations under this Agreement to one of its
affiliates without notice to, or consent of, Customer. This Agreement shall inure to and
be binding on the Parties and their respective successors, permitted assigns, and legal
representatives. This Agreement is for the sole benefit of the Parties hereto and their
respective successors and permitted assigns and nothing herein, express or implied, is
intended to or shall confer upon any other person or entity any legal or equitable right,
benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(c) Modification. This Agreement may not be changed, modified, or amended,
except in writing signed by duly authorized representatives of the Parties.
(d) Governing Law, Venue, and Waiver of Jury Trial. This Agreement shall
be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, without giving effect to any conflict of law provisions. The Parties hereto
hereby agree that the application of the United Nations Convention on Contracts for the
International Sale of Goods does not apply to this Agreement and is expressly excluded.
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be
brought before a court of competent of jurisdiction located in the Commonwealth of
Pennsylvania. The Parties irrevocably submit to the exclusive jurisdiction of such courts
in any such suit, action, or proceeding. EACH PARTY WAIVES ALL RIGHTS TO
A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING UNDER
THIS AGREEMENT.
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U.S. Terms and Conditions of Sale (Safety)
Effective – July 2023
4877-6831-8559, v. 4
(e) Integration and Survival. This Agreement together with any attachments
or other documents incorporated by reference herein, constitute the entire agreement. The
terms of this Agreement that by their nature are intended to survive its expiration or
termination will continue in full force and effect after its expiration or termination.
(f) Severability; Headings. No provision of this Agreement, which may be
deemed unenforceable, will in any way invalidate any other portion or provision of this
Agreement. Section headings are for reference only and will have no substantive effect.
(g) Waiver. No waiver of any of the provisions of this Agreement is effective
unless explicitly set forth in writing and signed by the Parties. No failure and no delay in
exercising, on the part of any Party, any right under this Agreement will operate as a
waiver thereof, nor will any single or partial exercise of any right preclude the further
exercise of any other right.
(h) Relationship of the Parties. The Parties are independent contractors.
Nothing contained in this Agreement shall be construed as creating any agency,
partnership, joint venture, or other form of joint enterprise, employment, or fiduciary
relationship between the Parties, and neither Party shall have authority to contract for or
bind the other Party in any manner whatsoever.
(i) Injunction. Customer agrees that the remedies at law may be inadequate to
protect Draeger against any actual or threatened breach of Sections 14 or 17 of this
Agreement, and, without prejudice to any other rights and remedies otherwise available,
Draeger will be entitled to seek injunctive relief.
(j) Limitation of Actions. Any action against Draeger arising out of this
Agreement shall be commenced within one year from the date such cause of action has
accrued, otherwise the same shall be barred.
(k) Notices.
Notices shall be in writing and shall be deemed served upon receipt and shall be delivered
in person or by nationally recognized courier or certified mail to Draeger, Inc. 3135
Quarry Road, Telford, PA 18969, Attention President with a copy to the same address to
the attention of General Counsel (such copy shall not constitute service of process).
End of Terms and Conditions of Sale (Safety)