Purchase of HD8 Hydrant Lids Addendum 1

EQUIPMENT PURCHASE AGREEMENT BETWEEN
THE RALEIGH-DURHAM AIRPORT AUTHORITY AND
___________________________________
THIS AGREEMENT, made and entered into this _____ day of ______________, 20___
by and between the RALEIGH-DURHAM AIRPORT AUTHORITY, a public body
chartered by the General Assembly of North Carolina under Chapter 168 of the 1939
Session Laws, as amended, whose address is 1000 Trade Drive, Post Office Box 80001,
RDU Airport, North Carolina, 27623, hereinafter referred to as the "Authority," and
___________________________ whose address is _______________________,
______________, _______________, hereinafter referred to as the "Seller."
W I T N E S S E T H:
THAT WHEREAS, the Authority desires the Seller to provide Seventy-Five (75) HD8
hydrant lids as further described herein (the "Equipment");
WHEREAS, the Seller has represented to the Authority that it is fully qualified to provide
and capable of providing such Equipment in a competent manner; and
WHEREAS, the Authority desires to engage the Seller to provide such Equipment.
NOW, THEREFORE, the Authority and the Seller, for and in consideration of the mutual
covenants and agreements hereinafter set forth, do hereby agree as follows:
I. PURCHASE AND SALE
Subject to the provisions for early termination as set forth herein, the Authority agrees to
purchase and the Seller agrees that it will provide the Equipment described in Exhibit A
attached hereto and incorporated herein by reference, subject to the terms and conditions
set forth hereunder.
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II. PAYMENTS
(a) The Authority will pay the Seller for the Equipment in the maximum amount of
___________________________________ Dollars ($____________________), and as
further described in Exhibit B attached hereto and by this reference incorporated herein.
(b) The Authority may provide an invoice form to the Seller for use in the payment
process. Each invoice shall detail each fee, subject to the limitations described herein. Any
applicable duties and sales, use, excise, value-added, and/or similar taxes will be separately
identified. Each invoice shall be accompanied by such documentation as may be requested
by the Authority to fully support the claims for payment made. If applicable, each invoice
shall include a record of payments to Small Business Entities ("SBEs"), as applicable.
Credit for previous payments on account by the Authority shall be recognized on the
invoice. Unless freight or other charges are itemized, the Authority may take any offered
discount on the full amount of the invoice. Any items that are disputed by the Authority
will be so identified by the Authority. The Authority shall pay the undisputed amount
certified by the Seller based on terms of Net 30 days from the date of invoice receipt by
the Authority's Accounts Payable department (please e-mail a copy of the invoice to
RDUPayables@rdu.com).
(c) In the event that the Authority disputes the Seller's invoice(s) and documentation,
or any portion thereof:
(1) the Authority will identify the disputed items and pay any undisputed items
pursuant to Section II(b);
(2) the Seller shall continue to perform and to meet the requirements of this
Agreement, even in the absence of an agreement regarding the disputed
items;
(3) the parties may reserve all rights related to the disputed items;
(4) the parties shall negotiate the disputed items in good faith;
(5) at any time during said negotiations, either of the parties may refer the
matter to a mediator certified by the North Carolina Dispute Resolution
Commission and agreed upon by the parties; and
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(6) any disputed item that is not resolved during negotiations and/or mediation
may be referred by either party to the Wake County Superior Court for
resolution, which shall have exclusive jurisdiction.
(d) The Seller's final invoice shall be so identified, shall state the total amount which
the Seller claims to be due, and shall reflect that the Seller will have received full
compensation for all Equipment pursuant to this Agreement upon payment of such invoice
by the Authority. Said final invoice shall be submitted by the Seller to the Authority within
thirty (30) days after the date the Equipment is provided by Seller to the Authority. The
Seller's acceptance of payment pursuant to such final invoice shall constitute a full release
of the Authority for any and all claims and payments due or claimed to be due by the Seller
under this Agreement. The maximum payment and/or the maximum fees detailed in
Section II(a) are subject to adjustment under Section IV for any expansions or reductions
in the scope of work authorized by the Authority pursuant to Section III. Under no
circumstances will the Authority provide any payments to the Seller in excess of the
maximum payment as detailed herein except as provided in Section II.
(e) Seller certifies that the prices herein are not higher than the regular market price or
prices being charged to other government organizations purchasing identical goods on any
similar or smaller quantities at this particular time and do not discriminate against the
Authority.
(f) Buyer will not be liable for any charges for transportation, delivery, packing,
boxing, crating, or storage, unless specifically agreed to herein.
(g) In addition to any right or set off or recoupment provided by law, the Authority
may exercise any and all rights of set off or to recoup from any amounts due to Seller and
its affiliates and subsidiaries from the Authority.
(h) (1) If any outstanding check from the Authority to the Seller has not cleared the
bank account on which it was drawn and it has been 90 days or more since the
issuance of the check, the check will become void due to the Authority's set stale
date. If the Seller contacts the Authority, the Authority will reissue the check.
(2) If the outstanding check has not cleared the bank account on which it was drawn
and it has been a year or longer since the issuance of the check, the Authority will
submit the funds to the North Carolina Department of State Treasurer pursuant to
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Article 4 - North Carolina Unclaimed Property Act, N.C.G.S. 116B-59-1. At this
time, the Seller will need to contact the state for payment.
III. CHANGES
(a) The Authority may, at any time, change the Equipment specifications, methods of
delivery, place or time of delivery, quantities, or other aspects of the order to meet its needs.
In the event that such a change would reduce or increase the payment(s) due the Seller as
detailed in Section II, the Authority shall notify the Seller in writing and request that the
Seller submit to the Authority within ten (10) business days of receipt of said notice a
written statement setting forth the amount of the reduction or increase in cost the Seller
believes is associated with such change, supported by such documentation related thereto
as may be requested by the Authority. The Authority shall notify the Seller in writing of
its approval or rejection of such statement, or any part thereof, within ten (10) business
days following receipt of said statement. In the event that the Authority rejects the Seller's
statement of cost, the parties may negotiate the resulting reduction or increase in the
payment(s) due to the Seller in good faith.
(b) In no event shall Seller increase quoted prices or change Equipment specifications
or other details of the order other than as set forth in Exhibit A without the Authority's
written consent. Prior to any consent:
(1) Seller shall have submit a written statement of cost with respect to the
proposed additions or changes in the form required by the Authority;
(2) Seller shall provide documentation independent of its own assertions as
justification for such cost increases;
(3) the Authority shall have conducted a reasonable investigation of Seller's
proposal for additional costs. During any such investigation, the Authority
shall have the right to audit/review all books and records related to the
Agreement; and
(4) the parties shall negotiate to a mutually agreed upon additions or changes
or costs permitted and payment(s) due to the Seller (Note: the Authority
may elect to accept none, all, or to change the request, or any portion
thereof).
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IV. RESERVED
V. OWNERSHIP AND MANAGEMENT OF WORK PRODUCT
(a) Definitions. For the purposes of this Agreement, the following terms shall have
the following meanings:
(1) "Information" means any writing or other source of recorded information
of whatever nature and by whatever means recorded, whether or not claimed to be subject
to copyright, including without limitation the following: written memoranda, notes,
records, correspondence, reports, drawings or other graphical representations, pictorial
reproductions, documents available from electronic data storage equipment, invoices,
specifications, spreadsheets, budgets, financial models, forecasts, photocopies, pictures
and all other papers and writings, including drafts, originals, and copies.
(2) "Authority Information" means any Information the Authority provides
to the Seller in any form, including in electronic form.
(3) "Work Product" means all Information the Seller prepares or obtains in in
connection with the Equipment hereunder, except: (i) Information that was in the public
domain prior to the execution of this Agreement; (ii) Information that becomes part of the
public domain without any breach of this Agreement; and (iii) Information in Seller's
lawful possession prior to the execution of this Agreement.
(b) Ownership and Management of Authority Information. All Authority
Information is and remains the property of the Authority and is provided to Seller for the
sole purpose of the Seller providing the Equipment hereunder. Seller shall not use
Authority Information for any purpose except in providing the Equipment hereunder.
(c) Ownership of Work Product. All Work Product produced or authored by Seller
in the course of assembling the Equipment hereunder, together with any associated
copyrights, are works made for hire and are the exclusive property of the Authority. To
the extent that any writings or works of authorship may not, by operation of law, be works
made for hire, this Agreement shall constitute an irrevocable assignment by Seller to the
Authority of the ownership of, and all rights of copyright in, such items, and the Authority
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shall have the right to obtain and hold in its own name, rights of copyright, copyright
registrations, and similar protections that may be available in the works.
(d) The Seller shall treat all Work Product and Authority Information as confidential
information and shall not disclose or make same available to any third party without the
Authority's prior written consent. If the Seller becomes legally compelled (by deposition,
interrogatory, request for documents, subpoena, investigation, demand, order or similar
process or otherwise) to disclose any Authority Information or Work Product to any third
party, then before such disclosure is made, Seller shall notify the Authority of the
disclosure demand or obligation, consult with the Authority on the advisability of taking
steps to narrow such demand or obligation, and cooperate with the Authority in any attempt
to obtain a protective order or other appropriate remedy or assurance that the Authority
Information or Work Product shall be afforded confidential treatment. If such protective
order or other appropriate remedy is not obtained, the Seller shall disclose only that portion
of the Authority Information or Work Product which Seller's legal counsel specifies in
writing actually is subject to the disclosure obligation.
(e) The Seller shall return any Authority Information or Work Product to the Authority
if the Authority makes a written request to the Seller.
(f) Prior to destroying or disposing of any Authority Information or Work Product
upon the termination of the three (3) year period referenced in Section V(e), the Seller shall
notify the Authority of its intent to do so and shall give the Authority a reasonable time
within which to take custody of said Authority Information or Work Product. Within such
reasonable time, the Seller shall furnish those materials to the Authority without charge
except for the reasonable cost of transporting and delivering the materials.
(g) In addition to any other remedies to which the Authority may be entitled by law or
in equity, the Authority may enforce the provisions of this Section V in an action for
equitable relief, including without limitation temporary and permanent injunctions (or their
functional equivalents) and/or specific performance of this Section.
VI. WARRANTIES; DELIVERY; INSPECTION; LIENS
(a) Seller warrants that any work shall be performed with promptness and diligence.
For a period of twelve (12) months after the delivery and acceptance of the Equipment,
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Seller warrants that all goods, equipment, and similar tangible items provided hereunder
will be in full conformity with all specifications and other descriptions provided, fit for
their particular purpose, and will be merchantable and of good quality material and
workmanship, free from defects. The Authority shall be entitled to all rights and remedies
provided by the Uniform Commercial Code, Chapter 25 of the NC General Statutes, for
breach of express warranties and implied warranties. Seller has, and will maintain in effect,
all professional licenses, certificates, permissions, authorizations, consents, and permits it
needs to carry out its obligations under this Agreement. These warranties shall be in
addition to any warranties of broader scope and services warranties and guarantees given
the Authority by Seller. Equipment required to be corrected or replaced shall be subject to
this warranty and a new warranty period to the same extent as Equipment originally
delivered under this Agreement. Neither review nor approval of the Seller's work by the
Authority shall in any way limit or remove the Seller's liability therefore.
(b) Unless the parties agree in writing otherwise, the Equipment shall be delivered in
the quantities ordered to
________________________________________________________________________
by Seller no later than March 19, 2027. Time and place of delivery are of the essence,
except when delay is due to causes beyond the Seller's reasonable control and without
Seller's fault or negligence. Risk of loss or damage to the Equipment prior to the time of
their acceptance by the Authority is upon the Seller. All shipments are U.S. F.O.B.
Destination for domestic shipping or Incoterms DDP for international shipments.
(c) Acceptance shall be after inspection and testing, or no later than 30 days after
delivery, whichever is sooner. Testing will include having purchased materials perform
acceptably to Buyer under Buyer's normal usage. Payment should not be construed as
acceptance, and signature of Buyer's receiving agent at time of delivery should not be
construed as acceptance of merchandise or of any terms that conflict with this Purchase
Order. All material which is discovered to be defective or which does not conform to any
warranty or specifications of the Seller upon initial inspection, or at any later time if the
defects contained in the material were not reasonably ascertainable upon the initial
inspection, may be returned to the Seller for full credit or replacement at the election of the
Authority. All transportation charges on rejected materials, both to and from the original
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destination, shall be at the expense of Seller. No goods returned as defective shall be
replaced without the Authority's written authorization.
(d) Upon request of the Authority, Seller shall furnish the Authority with written proof
of payment of all costs of labor, material and other charges that entered into the cost of
work performed by Seller, including its agents and contractors, which proof shall be in the
form of waiver of lien or right of lien, and Seller hereby waives and relinquishes all liens
and claims statutory or otherwise, which Seller now has or may hereafter have arising
hereunder.
VII. TERMINATION
(a) The Authority may by written notice of default to Seller (a) terminate the whole or
any part of this Agreement in any one of the following circumstances: (1) if Seller fails to
make shipment of the Equipment or fails to perform within the time specified herein or any
extension thereof; or (2) if Seller fails to comply with the other terms and conditions of this
Agreement, and (b) procure upon such terms as the Authority shall deem appropriate,
Equipment substantially similar to those so terminated, in which case Seller shall continue
performance of this Agreement to the extent not terminated and shall be liable to Authority
for any excess costs for such similar Equipment and any expenses incurred in connection
therewith.
(b) In addition to all of the other rights which the Authority may have to cancel this
Agreement, the Authority may terminate this Agreement in whole or in part at any time
prior to delivery and acceptance for any reason upon written notice to the Seller. If the
termination is not due to Seller's breach of its obligations: (a) the Authority will pay the
order price for all Equipment completed in accordance with this Agreement prior to the
date of termination unless said Equipment is part of Seller's standard commercial product;
and (b) the Authority will pay an equitable proportion of the order price for Equipment in
process and for all materials acquired for the purpose of fulfilling this order which Seller is
unable to cancel, return or otherwise use in its operations. The Authority will not be liable
to Seller for any costs for completed Equipment, goods in process or materials acquired or
contracted for if such costs were incurred prior to the date of this Order. Cancellation
charges shall be subject to Authority audit.
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VIII. RESERVED
IX. COMPLIANCE WITH APPLICABLE LAWS
(a) The Seller shall comply with all applicable federal, state and local laws, codes and
regulations, including the ordinances, rules, policies, bulletins, notices, directives and
regulations of the Authority, the Transportation Security Administration, and the U.S.
Customs and Border Protection Service as amended from time to time. Nothing in this
Agreement shall be construed to conflict with any applicable Federal, state or local law,
code or regulation, including the ordinances, rules, policies, bulletins, notices, directives
and regulations of the Authority, the Transportation Security Administration, and the U.S.
Customs and Border Protection Service as amended from time to time.
(b) PROHIBITION AGAINST CONTINGENT FEES AND GRATUITIES:
Seller warrants that it has not paid, and agrees not to pay, any bonus, commission, fee, or
gratuity to any employee or official of the Authority for the purpose of obtaining any
contract or award issued by the Authority. Subsequent discovery by the Authority of non-
compliance with these provisions shall constitute sufficient cause for immediate
termination of all outstanding Agreements with Seller and potential debarment of the Seller
as permitted by applicable law.
(c) The Authority shall have the right to audit the Seller's accounting, operational and
business records as necessary to verify compliance with all applicable laws, regulations,
orders, ordinances, codes, notices, requirements and standards, and correction of violations
of the same. Seller will permit the Authority-designated representatives to examine, at a
reasonable time and during normal business hours, all records, data, information and Work
Product that the Authority may reasonably require in order to confirm that the services
provided by Seller are (i) being conducted in conformance with this Agreement and (ii) in
compliance with applicable laws and regulations. If any audit conducted pursuant to this
paragraph reveals that the Seller has breached its obligations under applicable law, this
Agreement, the Authority may conduct follow-up audits to ensure that any such breach has
been cured.
(d) Seller certifies that, as of the date written above, it, and all subcontractors, are not
on the Final Divestment List created by the State Treasurer pursuant to N.C.G.S. 143-6A-
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4. Seller shall not utilize in the performance of this Agreement any subcontractor that is
identified on the Final Divestment List.
X. RIGHTS AND REMEDIES
The Authority's rights and remedies as set forth herein shall be in addition to any other
right or remedy now and hereafter provided by law or in equity. All rights and remedies
shall be cumulative and not exclusive of each other. No delay by the Authority in
exercising a right or remedy shall constitute acquiescence thereof.
XI. FORCE MAJEURE
(a) A party hereto shall have no liability to the other hereunder due to circumstances
beyond its control, including, but not limited to, acts of God, terrorism, flood, natural
disaster, regulation or governmental acts, fire, civil disturbance, or extreme weather (a
"Force Majeure Event"). Notwithstanding anything to the contrary herein, the Authority
may terminate this Agreement in its entirety and without penalty if a Force Majeure Event
continues for more than ten (10) consecutive days and prevents or delays Seller from
delivering the Equipment.
(b) Any and all payments by the Authority are expressly contingent upon and subject
to the appropriation, allocation and availability of funds to the Authority for the purposes
set forth in this Agreement. If this Agreement or any purchase order issued hereunder is
funded in whole or in part by federal funds, the Authority's performance and payment shall
be subject to and contingent upon the continuing availability of said federal funds for the
purposes of the Agreement or purchase order. If the term of this Agreement extends into
fiscal years subsequent to that in which it is approved, such continuation of the Agreement
is expressly contingent upon the appropriation, allocation, and availability of funds in each
such subsequent fiscal year for the purposes set forth in the Agreement. If funds to effect
payment are not available, the Authority will provide written notification to Seller. If the
Agreement is terminated under this paragraph, Seller agrees to terminate any services
supplied to the Authority under this Agreement, and relieve the Authority of any further
obligation thereof. The Authority shall remit payment for services performed and accepted
on or prior to the date of the aforesaid notice in conformance with the payment terms.
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