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HomeMy WebLinkAboutRes 2016-11-252 HD Supply Waterworks, LTD Agreement (2)CITY OF ANNA, TEXAS RESOLUTION A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO ACT ON THE CITY'S BEHALF IN EXECUTING A MASTER PROJECT AGREEMENT WITH HD SUPPLY WATERWORKS, LTD., FOR ADVANCED METERING INFRASTRUCTURE. WHEREAS; The City of Anna has reviewed proposals from various vendors offering advanced metering infrastructure and found the fixed network advanced metering infrastructure system manufactured by Neptune Technology Group Inc. and distributed by HD Supply Waterworks, Ltd. to be the best value; and, WHEREAS; HD Supply Waterworks, Ltd. is the sole source distributor for Neptune Technology Group Inc. in the State of Texas; and, WHEREAS; the City Council of the City of Anna, Texas (the "City Council") previously approved the Fiscal Year 2017 budget which included funding for advanced metering infrastructure; and, WHEREAS; Staff recommends approving a Master Project Agreement (the Agreement) with HD Supply, Ltd. for the purchase and installation of advanced metering infrastructure (the 11 Project") attached hereto as Exhibit 1; and, WHEREAS; the Agreement includes all equipment and installation costs necessary to complete the Project with compensation to HD Supply, Ltd. for said costs in the amount of $1,340,009.75; and, WHEREAS; the City Manager has negotiated financing for the Project with US Bancorp; and, WHEREAS; the City Council desires to authorize the City Manager to execute an Agreement with HD Supply Waterworks, Ltd. for construction of the Project; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. Recitals Incorporated. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Authorization. The City Council hereby approves the Master Project Agreement attached hereto as Exhibit 1, and authorizes, ratifies and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Agreement with HD Supply Waterworks, Ltd. RESOLUTION: Advanced Metering Infrastructure Agreement PAGE I OF 2 11/22/16 PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 22 nd day of November 2016. ATTEST: \0% City Secretary Carrie L. Smith %\ OF,4.va IV " exp":) I"104,4iml iWO�0\ APPROVED: RESOLUTION: Advanced Metering Infrastructure Agreement PAGE 2 OF 2 11/22/16 CITY SECRETARY' OFFICE DOCUMENT TRANSMITTAL FORM The City Secretary's Office receives multiple documents requiring different actions from each department. This transmittal form is to be completed and attached to each document to ensure documents are processed properly and in a timely manner. PRINT OR TY9E Date: IT/2-0 40/0 From: Document Title: What action is required for this document? Approval _, Signature _, Purchase Order Preservation or Other ? Notes: EV e- (Iu�WA Q vy) k',� A- V-,- P V-v�r Preservation Information Refer to Records Retention Schedules at https.-Ilwww,tsl.texas,.qovlslrmlrecordspubsliocalretention,htmI Retention Schedule: Record Series #: Retention Period: Project Name (if applicable): * Is this document an Original �' or Copy ? Did your department retain a �= V ? paper copy _ or both Notes: Is this document part of an Ordinance , Resolution Contract—, or Agreement_? If yes, provide number Ja�L - I If no, provide other parties information Notes: be useful to the City Secretary about this document: Document Transmittal Form 9115116 19 DSUPPLY0 City of Anna Master Project Agreement HD Supply Waterworks, Ltd. 6959 State Highway 276 Royse City, TX 75189 Table of Contents Section Purposeand Scope ............................................................................................................................. I Definitions and Terminology ............................................................................................................. 2 Term................................................................................................................................................... 3 HD Supply Waterworks' Responsibilities ......................................................................................... 4 Client's Responsibilities ..................................................................................................................... 5 Defaultof Client ................................................................................................................................. 6 Default of FID Supply Waterworks .................................................................................................... 7 Insolvency.......................................................................................................................................... 8 Taxes, Permits, and Fees .................................................................................................................... 9 Warranty............................................................................................................................................. 10 Indemnity........................................................................................................................................... I I Safety............................................................................................................ .................................... 12 Liabilityand Force Majeure ............................................................................................................... 13 Insurance............................................................................................................................................ 14 HazardousMaterials ........................................... ............................................................................... 15 Cleanup.............................................................................................................................................. 16 Delaysand Access .............................................................................................................................. 17 Qualityof Materials .......................................................................................................................... 18 Financing........................................................................................................................................... 19 LegalGovernance .............................................................................................................................. 20 DisputeResolution ............................................................................................................................. 21 Attorney's Fees ................................................................................................................................. 22 Assignability, ..................................................................................................................................... 23 Notices.............................................................................................................................................. 24 BindingEffect ................................................................................................................................... 25 Modifications.................................................................................................................................... 26 Severability....................................................................................................................................... 27 Appendix A Procurement, Installation and Management Contract E,chibitA-1 Material Procurement Sumniaryfor Installation Contract ExhibitA-2 Acceptance Certificate Appendix B Reserved Appendix C Reserved Appendix D Warranty ExhibitD-1 Manufacturers' Warranties I 0 1015�1�SUPPLY. WATERWORKS Master Project Agreement This Master Project Agreement (as hereinafter defined, this "Aw-eemen ") dated as of November _, 2016 between RD Supply Waterworks, Ltd. a limited partnership consisting of HD Supply Waterworks Group, Inc. (limited Partner) and HD Supply GP & Management, Inc. (General Partner) (as hereinafter defined, "HD Supply Waterworks"), and the City of Anna (as hereinafter defined, "Client"). 1. Purpose and Scope. The Agreement is a Master Project Agreement to provide certain Work to Client. HD Supply Waterworks agrees to undertake the necessary Work as specified in this Agreement, and Client agrees to take all actions that are identified in this Agreement and to pay HD Supply Waterworks in the manner contemplated by this Agreement. This Agreement consists of the text set forth herein and the text set forth in each Appendix to this Agreement that is executed and delivered by the Parties. The Appendices checked below are the only Appendices that have been executed and delivered by the Parties as part of this Agreement that Exhibits that are part of a stated Appendix also shall be part of this Agreement): [X ] Appendix -Procurement, Installation and Management Contract Appendix B--Reserved Appendix C -Reserved X ] Appendix D--Warramy 2. Definitions and Terminology. When used in this Agreement or in any of its attachments, the following capitalized terms shall have the respective meanings as follows: "Agreement' shall mean this Master Project Agreement, to include all Appendices and Exhibits, "AWWA" shall mean the American Water Works Association "AMR!' shall mean Automatic Meter Reading "AMI" shall mean Advanced Metering Infrastructure "Client" shall mean the City of Anna together with its successors. "Factory Installation Recommendation" shall mean guidelines for installation procedures given by the manufacturer of the equipment. "Financing Contrac; " shall mean any separate financing agreement that may be executed and delivered by the Parties as contemplated by Appendix C to this Agreement, but only to the extent that Section I of this Agreement shall indicate that AP12endix C applies to this Agreement. No Financing Contract delivered pursuant to this Agreement shall constitute a part of this Agreement, and this Agreement does not constitute a part of any Financing Contract executed and delivered by the Parties. "Force Maieure' shall mean conditions beyond the reasonable control, or not the result of willful misconduct or negligence of the Party, including, without limitation acts of God, storms, extraordinary weather, acts of government units, strikes or labor disputes, fire, explosions, thefts, vandalism, riots, acts of war or terrorism, non -price related unavailability of Project Materials and Supplies, and unavailability of fuel. "Hazardous Materials" are any materials, substances, chemicals, and wastes recognized as hazardous or toxic (or other interchangeable ternis of equal meaning) under applicable laws, regulations, rules, ordinances, and any governmental or authoritative body having jurisdiction over the execution of this Agreement and its attachments. 2 "M Supply Waterworks" shall mean HD Supply Waterworks, Ltd., a limited partnership, together with its successors. "Installation Contract" shall mean the Procurement, Installation, and Management Contract attached to this Agreement as Appendix A, but only to the extent that the Parties have executed and delivered such Appendix A. "Manufarturer Defect" shall mean any fault or defect in materials or workmanship that manifests itself during the Warranty Period and is covered by the manufacturer's warranty. "Manufacturer's Warranty Period" shall have the meaning set forth in Appendix D to this Agreement. "PAM" shall mean either HD Supply Waterworks or Client. "Projec " shall mean the work to be performed by HD Supply Waterworks or its subcontractors as described in this Agreement, "Proiect Materials and Supplies" shall mean the materials and equipment specified in Appendix A. "RF" shall be interchangeable with the term Radio Frequency. "State" shall mean the State of Texas in which Client is located. "Third Party' shall mean a person or entity other than Client or HD Supply Waterworks. "Utility Service Are ' shall mean the geographic area where the Project will be installed and the Work (and, if applicable, the Services) will be performed, This geographic area shall be specifically defined as the service area of the City of Anna and any other geographic areas including Client's system that HD Supply Waterworks, in its discretion, shall approve in writing for inclusion in the Utility Service Area, Said approval shall not be unreasonably withheld or delayed. "Warranty Perio " shall have the meaning set forth in Appendix D to this Agreement. "Work" shall mean all work required for the completion of HD Supply Waterworks' obligations under this Agreement, including, to the extent that the Parties execute and deliver the Installation Contract attached hereto as Appendix A, the installation Work contemplated by the Installation Contract. 3. Term. The Term of this Agreement shall begin on the commencement date as listed in the opening paragraph and, unTe—ssearlier terminated in the manner contemplated by this Agreement, shall continue for a period of one year. Thereafter, this Agreement will automatically renew for additional periods of one year each under the same terms and conditions, until terminated by either party as specified herein. Notwithstanding the foregoing, either Party may terminate this Agreement and the Services and Work described herein by giving the other Party sixty (60) days prior written notice of its termination of this Agreement. No such termination shall have the effect of terminating any Financing Contract between the Parties if there are any amounts outstanding in respect of such Financing Contract. 4. HD Supply Waterworks' Responsibility. HD Supply Waterworks shall provide Services, supply Project Materials and Supplies, and do all other Work as described in this Agreement. Without limiting the generality of the foregoing, RD Supply Waterworks shall maintain supervision of all its subcontractors. Any Work beyond the scope of the Work agreed to herein shall not be considered as part of this Agreement. There shall be no implied or verbal agreements between the Parties relating to the subject matter of this Agreement. 5. Client's Responsibility. Client shall be responsible for cooperating with HD Supply Waterworks, providing accurate information in a timely manner, and making payment in a timely manner for Work performed, Project Materials and Supplies famished, or Services rendered. Client shall designate a representative who will be fully acquainted with the Work and will be reasonably accessible to RD Supply Waterworks and its subcontractors, and will have the authority to make decisions on behalf of Client. Client shall provide to HD Supply Waterworks and its subcontractors all information regarding legal limitations, utility locations and other information reasonably pertinent to this Agreement and the Project. Client shall be required to give prompt notice should it become aware of any fault or defect in the Project. 6. Default of Client. The following events shall be considered events of Default of Client: (a) The failure of Client to make payments to HD Supply Waterworks in accordance with the terms of this Agreement; (b) any written representation or warranty provided by Client that proves to be materially false or misleading when made; or (c) any material failure of Client to comply with or perform according to the terms of this Agreement or to correct such failure to perform within any cure period specified in this Agreement. If an event of Default by Client occurs, HD Supply Waterworks will exercise any and all remedies available to it under this Agreement. 7. Default of HD Supply Waterworks , The following events shall be considered events of default on the part of HD Supply Waterworks: (a) failure of RD Supply Waterworks to provide adequate personnel, equipment, and supplies in accordance with the provisions and specifications of this Agreement; (b) any failure to promptly re -perform, within a reasonable time, Work or Services that properly were rejected as defective or nonconforming; (c) the failure of HD Supply Waterworks to deliver its Work and Services free and clear of any lien or encumbrance by any subcontractor, laborer, materialman, or other creditor of HD Supply Waterworks; (d) any representation or warranty (other than a warranty as contemplated by Section 10 of this Agreement) provided by HD Supply Waterworks proves to be materially false or misleading when made; or (c) any material failure of HD Supply Waterworks to comply with or perform according to the terms of this Agreement or to correct such failure to perform within any cure period specified in this Agreement. In the event of default by RD Supply Waterworks, Client may exercise any and all remedies available to it under this Agreement. 8. Insolvene . In the event that either Party becomes insolvent or makes an assignment for the benefit of creditors or is adjudicated bankrupt or admits in writing that it is unable to pay its debts, or should any proceedings be instituted under any state or federal law for relief of debtors or for the appointment of a receiver, trustee, or liquidator of either Party, or should voluntary petition in bankruptcy or a reorganization or any adjudication of either Party as an insolvent or a bankrupt be filed, or should an attachment be levied upon either Parties equipment and not removed within five (5) days therefrom, then upon the occurrence of any such event, the other Party shall thereupon have the right to cancel this Agreement and to terminate immediately all work hereunder without further obligation. 9. Taxes, Permits, and Fees' HD Supply Waterworks shall be responsible for obtaining all permits and related permit fees associated with the Project; provided, however, that Client must disclose any known fees in advance of contract signing. Client shall be responsible for securing at its sole expense any other necessary approvals, easements, assessments, or required zoning changes. 111) Supply Waterworks shall be responsible for all taxes measured by HD Supply Waterworks' income. 10. Warrant . The warranty provided by HD Supply Waterworks and the manufacturer on Project Materials and Supplies, Work, and Services shall be as set forth in Appendix D. it. Indemnity. Subject to Sections 13 and 14 of this Agreement (a) Except as otherwise expressly provided in Section 11(b) below, Client assumes all liability and risk associated with the use, operation, and storage of the Project Materials and Supplies and for property damage, injuries, or deaths associated with or arising out of the use and operation of the Project unless said damage, injury, or death is proximately caused by HD Supply Waterworks, its employees, subcontractors, or agents. If any such damage, injury, or death is proximately caused by any act or omission of HD Supply Waterworks, its employees, subcontractors or agents, then HD Supply Waterworks shall indemnify, defend, and save and hold harmless Client and its officials, officers, agents, and employees from and against any and all actual and direct liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees and related expenses incurred by the Client. (b) HD Supply Waterworks shall indemnify, defend, and save and hold harmless Client and employees fi-om and against all claims for payment of subcontractors or materialmen hired by HD Supply Waterworks for Work relating to the Project. HD Supply Waterworks and Client agree that HD Supply Waterworks is responsible only for damages that result from the intentional misconduct or the negligent act or omission of HD Supply Waterworks or its subcontractors. 12. NAEqy. RD Supply Waterworks shall have the primary responsibility for the supervision, initiation, and maintaining all safety precautions and programs necessary to complete its Work associated with the Project. HD Supply Waterworks agrees to comply with all applicable regulations, ordinances, and laws relating to safety. It shall be the responsibility of Client, however, to assure that HD Supply Waterworks is warned of any known hazards on sites owned by the Client where 111) Supply Waterworks is authorized to do its Work. 13. Liability and Force Maieure. FID Supply Waterworks' liability under this Agreement shall not exceed the total dollar value of this Agreement or One Million Three Hundred Forty Thousand Nine and 75/100 Dollars ($1,340,009.75), whichever is less. Neither HD Supply Waterworks nor Client shall be responsible to each other for any indirect, consequential, incidental or special damages resulting in any form from the Project. Neither HD Supply Waterworks nor Client shall be responsible to each other for injury, loss, damage, or delay that arise from Force Majeure. HD Supply Waterworks shall not be responsible for any equipment or supplies other than Project Equipment and Supplies, except that HD Supply Waterworks shall be responsible any actual and direct injury, loss, or damage related to such equipment or supplies that HD Supply Waterworks may cause by intentional conduct or negligence, 14. Insurance and Risk * During the Tenn of this Agreement, HD Supply Waterworks shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: (a) Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. (b) Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. (c) Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident. (d) HD Supply Waterworks shall firmish insurance certificates at Client's request to evidence such coverages. The insurance certificates shall name Client as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled without 30 days' prior written notice to Client and HD Supply Waterworks. In such event, fff) Supply Waterworks shall, prior to the effective date of the cancellation, serve substitute certificates furnishing the same coverage. 15. Hazardous Materials. The Project and the Work expressly excludes any Work or Set -vices of any nature associated or connected with the identification, abatement, cleanup, control, removal, or disposal of Hazardous Materials or substances. Client warrants and represents that, to the best of Client's knowledge, there is no asbestos or other hazardous materials in the Project premises in areas that HD Supply Waterworks shall be required to perform work that in any way will affect HD Supply Waterworks' ability to complete the Project. If HD Supply Waterworks is made aware or suspects the presence of Hazardous Materials, HD Supply Waterworks reserves the right to stop work in the affected area and shall immediately notify Client. It shall remain Client's responsibility to correct the condition to comply with local and federal standards and regulations. Client shall remain responsible for any Claims that result from the presence of the Hazardous Materials. Client is responsible for proper disposal of all hazardous materials, including but not limited to lithium batteries. 16. Clearm . HD Supply Waterworks will be responsible for keeping the Project area free from the accumulation of waste materials or trash that result from the Project -related Work. Upon completion of the initial Project - related Work, HD Supply Waterworks will remove all waste materials, trash, tools, construction equipment and supplies, and shall remove all surplus materials associated with the Project. 17. Delays and Access. If conditions arise that delay the commencement, completion, or servicing of the Project as a consequence of Force Majeure or failure of Client to perform its obligation that prevents HD Supply Waterworks or its agents from performing work, then HD Supply Waterworks will notify Client in writing of the existence of delay and the nature of the delay. Client and HD Supply Waterworks will then mutually agree upon any new completion dates, disbursement terms, and payment terms for the Work contemplated by this Agreement. Nothing in the foregoing sentence shall be deemed to relieve Client from its obligation to provide to the extent set forth in this Agreement HD Supply Waterworks and its subcontractors reasonable and safe access to facilities that are necessary for HD Supply Waterworks to complete the Work. 18. Quality of Materials. HD Supply Waterworks will use the Project Materials and Supplies specified in Appendix A. Where brand names and pail numbers are specified HD Supply Waterworks will use the items listed in Appendix unless specified items are unavailable or discontinued. In this instance HD Supply Waterworks will work with Client to choose a substitute. Where brand names are not specified, HD Supply Waterworks will choose Project Materials and Supplies that are within industry norms and standards. Should Client require Project Materials and Supplies with specific requirements, Client should make these specifications known in a timely manner. HD Supply Waterworks can use Client -furnished or Client -specific materials; however, Client will need to provide them or pay the difference in price and labor should any exist. Examples of Client specific requirements include but are not limited to country or state of origin, union manufactured, specific brand, or manufacturing process. 19. Financin . If the Parties so agree and have so indicated in Section I of this Agreement, HD Supply Waterworks shall provide financing for the Project pursuant to any separate Financing Contract executed and delivered by the Patties as contemplated by Appendix C. The Financing Contract is not part of this Agreement, and this Agreement is not pail of the Financing Contract. 20. Lellal Governance The laws of the State shall govern this Agreement and the relationship of the Parties contemplated hereby. 21. Dispute Resolution. (a) The Parties will attempt in good faith to resolve through negotiation any dispute, claim or controversy arising out of or relating to this Agreement. Either Party may initiate negotiations by providing written notice to the other Party, setting forth the subject of the dispute and the relief requested. The recipient of such notice will respond in writing within three business days fi-om receipt with a statement of its position on, and recommended solution to, the dispute. If the dispute is not resolved by these negotiations within 15 business days following the date of the initial written notice, the matter will be submitted to mediation in according with Section 21 (b) below. (b) Except as provided herein, no civil action with respect to any dispute, claim, or controversy arising out of or relating to this Agreement may be commenced until the Parties have attempted in good faith to resolve the matter through a non -binding mediation proceeding, under the mediation procedure of the CPR Institute for Dispute Resolution ("CPR!'), JAMS/Endispute, the American Arbitration Association ("AAA"), or as otherwise agreed upon by the Patties. Either Party may commence mediation by sending a written request for mediation to the other Party, within 45 business days following the expiration of the 15-business day period under subsection (a) above, setting forth the subject of the dispute and the relief requested. Unless the Parties agree otherwise in writing, a single mediator shall conduct the mediation, and the mediator shall be selected from an appropriate CPR, JAMS/Endispute, AAA or other panel as agreed upon by the Parties. The mediation shall be conducted in the county of the State in which Client has its principal office. Each Party may seek equitable relief prior to or during the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable relief, neither Patty may commence a civil action with respect to the matters submitted to mediation until after the completion of the internal mediation session, or 45 days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of a civil action, if the Parties so desire. (c) The Parties further agree that in the event any dispute between them relating to this Agreement is not resolved under Section 21 (a) or (b) above, exclusive jurisdiction shall be in the trial courts located within the county of the State in which Client has its principal office, any objections as to jurisdiction or venue in such court being expressly waived. (d) All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State or any other jurisdiction) that would cause the application hereto of the laws of any jurisdiction other than the laws of the State. 22. AttorneV's Fees. In the event of any litigation between Parties hereto arising from or with respect to this Master Project Agreement, the Parties will each bear their own attorneys' fees and costs of the action. 23. Assignabili . Client may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder without HD Supply Waterworks' prior written consent. 24. Notices. All notices and communications related to this Agreement shall be made in following address: If to Client: City of Anna Attn: City Manager I I I N. Powell Parkway Anna, Texas 75409 If to RD Supply Waterworks: RD Supply Waterworks, Ltd. 6959 State Highway 276 Royse City, TX 75189 Shellie Rabroker HID Supply Waterworks, Ltd. 1601 S. Wall St. Belton, TX 76513 Shellie.Brinkman@HDSupply.com 25. Binding Effec . Each of Client and FID Supply Waterworks represents and warrants to the other that this Agreement has been duly authorized, executed and delivered by such Party and constitutes a legal, valid and binding agreement of such Party enforceable against such Party in accordance with its terms. 26. Modifications. This Agreement shall not be modified, waived, discharged, terminated, amended, altered or changed in any respect except by a written document signed and agreed to by both HD Supply Waterworks and Client. 27. Severabilit . Any term or provision found to be prohibited by law or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without, to the extent reasonably possible, invalidating the remainder of this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. "HD SUPPEY WATERWORKS" HD SUPPLkV WAT-FiRVORES, LTD. By: Y--A � � Printed NamA Lmrf -eaoa< Printed Title "CLIENT" SUPPLY. WATERWORKS Appendix A Procurement, Installation, and Manallement Contract Provider: HD Supply Waterworks, Ltd. ("HD Supply Waterworks") Client: City of Anna This Procurement, Installation, and Management Contract (the "Installation Contraef') is an Appendix to the Master Project Agreement of even date herewith (the "Master Agreemen ') concerning the Project referenced in the Master Agreement. 1. Summary of Work. The Summary of Work for the Project contemplated by the Master Agreement consists of application design of the AMR system, providing and installing all Project Materials and Supplies as listed in Exhibit A-1, and management of the installation process. The purpose of this Work is to upgrade the existing system in order to provide an ANUR-capable system that will meet or exceed the Factory Installation Recommendations. Summary of Work: Supply and installation of water meters, collectors and monopoles as specified in Exhibit A- 1. 2. Pro'ect Implementation Period. The Project is projected to commence on the commencement date specified in the Master Agreement and will continue for a period of one year. Thereafter, this Installation Contract will automatically renew for additional periods of one year each under the same terms and conditions, until terminated by either party as specified in the Master Agreement. 3. Compensatio . Client agrees to pay HD Supply Waterworks for the Project Materials and Supplies and work as described in Exhibit A-1 and additionally for each supplemental item as required by Client and agreed by the parties. In addition, Client agrees to pay HD Supply Waterworks for the Work and Services contemplated by this Installation Contract as set forth in the Master Agreement. Prices specified in Exhibit A- I are valid for one year from the commencement date specified in the Master Agreement. Thereafter, HD Supply Waterworks will provide Client with 30 days' advance written notice of price changes. In the event the parties are unable to agree on price changes, this Installation Contract and the Master Agreement may be terminated by either party for convenience as specified in the Master Agreement. Payment terms shall be as follows: (a) Payment for Proiect Materials and Supplies. Client will make payment to HD Supply Waterworks for Project Materials and Supplies within 30 days of the receipt of an invoice for such Project Materials and Supplies (which will be invoiced no more frequently than weekly. No payment shall be made for Project Materials and Supplies, however, until Client shall have issued a related Acceptance Certificate, which Client shall issue promptly following its receipt of Project Materials and Supplies. (b) Draw Schedule. This Section 3(b) [ ] shall be applicable, or [ X ] shall not be applicable (mark as appropriate) to this Installation Contract, If this Section 3(b) is applicable, HD Supply Waterworks shall be entitled to percentage payment for its Work and Services in accordance with the following draw schedule: Draw Schedule: Project Start Date XXXX 25% Complete XX/XX/XXXX 50% XX/XX/XXXX 75% XX/XXJXXXX 100% XX/XX/XXXX No payment shall be made, however, until Client shall have issued an Acceptance Certificate with respect to such Work and Services, which Client shall issue promptly based on achievement of the draw schedule milestones set forth above. RD Supply Waterworks shall be paid for Project Materials and Supplies as set forth in Section 3(a) above. (c) No Draw Schedule. If the Pat -ties have not agreed to a draw schedule in Section 3(b) above, Client shall pay HD Supply Waterworks for all Work and for Services as such Work and Services are performed, with RD Supply Waterworks to bill Client on a monthly basis for all of the foregoing. Client will make payment for all Work and Services performed under this Installation Contract within 30 days after receipt of HD Supply Waterworks' invoice for such Work and Services (which will be invoiced monthly). No payment shall be made, however, until Client shall have issued an Acceptance Certificate with respect to such Work and Services, which Client shall issue promptly based on achievement of the draw schedule milestones set forth above. HD Supply Waterworks shall be paid for Project Materials and Supplies as set forth in Section 3(a) above. (d) Financintz Comme . Where the Parties have agreed to a separate Financing Contract (which is not part of this Contract, and this Contract is not part of the Financing Contract), payment shall be made as monies are advanced under the Financing Contract. 4. Installation Responsibilities of H Supply Waterworks. (a) Project Installatio . HD Supply Waterworks agrees to do the Work, provide the Services, and furnish the Project Materials and Supplies in accordance with Client's specifications that are attached to this Installation Contract during the estimated construction period listed above. HD Supply Waterworks will be responsible for installing the Project according to manufacturer standards. HD Supply Waterworks will warrant the Project Materials and Supplies, the Work, and any other Services as provided in Section 10 of the Master Agreement Client may elect to execute a Service Contract with HD Supply Waterworks for additional maintenance provisions. (b) Water Shuroffs. FID Supply Waterworks, its agents and subcontractors, will be responsible for shutting off the water to each meter serviced as well as notifying each customer of the water shmoff. Some assistance may be required by Client with the notification of its customers. The Installation team will knock on the doors of residential customers as well as leave notifications on their doors. In the case of large commercial customers such as: schools, hospitals, nursing homes or any other commercial customer, special efforts will be made to ensure minimum disruption to their water needs. In order to prevent any damage from running flush valves or any other plumbing fixtures that are sensitive to water shutoffs, HD Supply Waterworks will schedule replacements with these commercial customers and will notify the maintenance personnel when turning the water back on at these facilities, Regardless of any effort of RD Supply Waterworks, ultimate responsibility of any and all fixtures inside buildings will remain the responsibility of the end user and/or Client as detailed in any Service Contract that exists between Client and its Customers. In the event that the service location lacks a curb stop, or it is defective, HD Supply or its representative will contact the utility. In this event the utility will either A) authorize HD Supply to repair the defect at the price as listed in appendix A- I or, B) the utility will repair the defect themselves and notify HD Supply that the repair has been made or, Q Exclude the meter change out from the Project. (C) Meter Boxes, Vaults, and Roadways. RD Supply Waterworks is responsible for repairing any damages to meter boxes, vaults, and roadways that result fi-om the installation of the Project; provided, howeve , that HD Supply Waterworks shall not be liable for pre-existing conditions or leaks. HD Supply Waterworks will install new meter boxes as authorized by the Client's representative, with appropriate lid selection, at a price mutually agreed upon. RD Supply Waterworks will not retain all existing water meters and materials pulled fi-om the ground during the installation. (d) AMI Infrastructure Work. HD Supply Waterworks will develop a Scope of IT764 specific to the design, deployment, and execution of any AMI infrastructure work as per the Project needs. This Scope of Mork will be tailored to the Project, as well as any site specific conditions. Once this Scope of Work is developed and mutually agreed upon by the Parties, it will become extension to the Master Project Agreement Appendix A, and as such will be binding between the parties. (e) Disposal. HD Supply Waterworks will be responsible for the disposal of all waste, debris and materials ftom the installation of the Project. (f) Liability. Water Meter Change out: HD Supply Waterworks is responsible for any damages that occur within 6" on either side of the water meter resulting from the Project installation. Any damages incurred within this 6" area will be promptly repaired at the expense of HD Supply Waterworks, HD Supply Waterworks is not liable for damages outside the 6" zone, either on the water distribution side or oil the customer side incurred from the Project installation including shutoff, temporary outage, and restart of water service unless such damages are caused by the intentional or negligent conduct of HD Supply Waterworks, its employees, subcontractors, or agents. HD Supply Waterworks is not liable for any pre-existing conditions including leaks, faulty workmanship and materials from previous projects or rust. Should such conditions occur (i.e.leaks) HD Supply Waterworks may document them and at Client's written request repair them for a negotiated price, Back -Flow Prevention Devices: Should the Client elect to have HD Supply Waterworks install or repair any Back -Flow Prevention Devices, HD Supply Waterworks assumes no liability or responsibility for the proper functioning of these devices. HD Supply Waterworks recommends that the utiliLy notify each customer about the potential impact of thermal expansion, but leaves this decision to the discretion of the utility. (g) Non -Covered Work. Contracted meter change outs contemplate a standard meter change out, In the event that locations exist where conditions exist which require nonstandard work (i.e. move a service location etc., move fences for or other customer structures & items for access, install systems in heavy traffic locations alleys, parking lots etc.), III) Supply and the Client will discuss pricing and work may proceed from this point or the Client may elect to excuse this work from the Project. In any event where safety concerns would cause undue risk to the work Crews. 5. Responsibilities of Client during Installation. (a) Owner-Fumished Data. Client shall provide HD Supply Waterworks all technical data in Client's possession, including previous reports, maps, surveys, and all other information in Client's possession that HD Supply Waterworks informs Client's representative is necessary as it relates to Project. Client shall be responsible for identifying the location of meters. Should HD Supply Waterworks require assistance in finding the meter location, Client shall locate the meter in a timely manner. (b) Access to Facilities and Prope . Client shall make its system facilities and properties reasonably available and accessible for inspection by RD Supply Waterworks and affiliates. (c) Client Cooperation. Client support will be required during implementation of this Improvement Measure to obtain access to meter boxes/pits, infrastructure sites and to coordinate utility interruptions. Client will provide notification in its billing or by other means to its customers that HD Supply Waterworks is performing the designated work and that possible service interruption may result. (d) Timely Revie . That Client through its designated representatives shall examine all invoices, and inspect all completed work by HD Supply Waterworks in a timely manner. In the event that a Client delay results in the lack of a progress payment disbursement, reserves the right to delay further work without penalty until such time as payments are made. HD Supply Waterworks further reserves all rights and options available to it under the Master Project Agreement. IN WITNESS WHEREOF, the Pat -ties have executed this Installation Contract as of November _, 2016. "HD SUPPLY WATERWORKS" RD SUPMYWATERWORKS, LTD. By: _ Printed Printed Title ptRele-1- MrR_ 10 "CLIENT" City of Anna I I m, ��o -,m, 4-lDSUPPLY. WATERWORKS Exhibit A-1 Material Proeurement SummaLy For Installation Contract Provider: RD Supply Waterworks, Ltd. ("HD Supply Waterworks") Client: CITY OF ANNA This Material Procurement Summary is an Exhibit to and hence part of the Installation Contract contemplated by the Master Project Agreement (the "Master Agreeme "), and it includes all Project Materials and Supplies to be used in connection with the Work contemplated by the Installation Contract and the Master Agreement, as the same will be identified specifically in future invoices generated by HD Supply Waterworks and attached to each Acceptance Certificate (Exhibit A-2) contained in the Installation Contract. A summary of the Project Materials and Supplies required for the Project is as follows: See attached. 12 PROPOSAL CUSTOMER City of Anna ATTN: Steven Phone: NEPTUNE ALL-AMERICAN MADE PROJECT Mobile Read Package Enhanced TEVW'3-.-VET-S&-- Royse City office 6959 Hipy 276 214-240-7805jax 972-635-9325 TOLL FREE 1-800-225-2968 Jeff Richards AMRIA111Product Specialist DATE: 111912016 Neptune AMR/AMI Package Egipment and Software "WINK"NO $ 46,875. 0 pifflol, MPX920 W/Panasonic ah-Book N SIGHT PLUS 5.0 Plus SOFTWARE Total Saftwarelreadhig equip Install 3 V4 GATEWA"C collectors 125' monopole W/V4 GATEWAY AC 75'monopole W/V4 GATEWAY AC Mobilizabin �N�� Labor and installation1meters & eq. Thank you for the opportunity of submitting this quote. HUD suppLy I WATERW6RKS J :Io] ;LOT--f-, I CUSTOMER City of Anna ATTN: Steven Phone: NEPTUNE, ALL-AMERICAN MADE PROJECT Mobile Read Package Enhanced Royse City office 6959 Trivy 276 214-240-7805fax 972-635-9325 TOLL FREE 1-800-225-2968 Jeff Richards AMPIAA11 product Specialist DA TE: 111912016 R9001 I" Meters BRZ BTM TIO R90011.5 Meters BIRZ Body TIO �M�R�2" Meters BRZ Body TIO �M��"001 4" Meters BRZ Body TF Compound R900I 6" Meters BRZ Body TIF Compound Thank you for the opportunity of submitting this quote. Rayse City office 6959 Hivy 2 76 214-2,10-7805fax 972-635-9325 PROPOSAL TOLL FREE 1-800-225-2968 CUSTOMER City of Anna Jeff Richards AHRIA111'Product Specialist ATTN: Steven Phone: NEPTUNE, ALL-AMERICAN MADE PROJECT Meter Installation TERMS: NET 30 DA TE., 1012512016 f IW -M-eif e-r—s W476-W7AM sit $ 180 �58900 Thank you for the opportunity of submitting this quote. Exhibit A-2 Acceptance Cerfificat Client under the Master Project Agreement (the "Master Ageemen ') with HD Supply Waterworks, Ltd. hereby certifies This Acceptance Certificate is a Partial/Final (Circle one) Acceptance Certificate delivered under the Procurement, Installation, and Management Contract (the "Installation Contract") to which it is attached. I . The Project Materials and Supplies listed on the attached invoice (or in the event of a final Acceptance Certificate all Project Materials and Supplies provided under the Installation Contract and the Master Agreement), have been delivered to Client. 2. Client has conducted such inspection and/or testing of the Project Materials and Supplies as it deems necessary and appropriate and hereby acknowledges that it accepts the Project Materials and Supplies for all purposes on the date indicated below. The Project Materials and Supplies have been examined and/or tested and to the best of Client's knowledge are in good operating order and condition and in all respects satisfactory to the undersigned and complies with the terms of the Installation Contract, subject, however, to the warranty provided in Section 10 of the Master Agreement. 3. Based on and the acceptance set forth herein, Client agrees that the Manufacturer's Warranty Period on all water equipment shall be deemed to have begun on the date when the manufacturer shipped such equipment and that the Manufacturer's Warranty Period shall end in accordance to the referenced warranties in Appendix D, Exhibit D-1. 4. Client has examined all Work and Services performed by HD Supply Waterworks and covered by the related invoice or draw requests and to the best of Client's knowledge finds such Work and Services to have been performed in a workmanlike manner and in accordance with all applicable specifications. Client therefore accepts such Work and Set -vices, Based on the acceptance set forth herein, Client agrees that the Warranty Period for the Work and Services shall end on , 20 (i.e. one year from the date of shipment). 5. The following is a punch list of items left to be completed for current phase or final phase Circle one) of the Project: I Insert Punch list I Agreed to and Accepted as of _, 20 by "CLIENT" CITY OF ANNA By: Printed Name: Printed Title IR Appendix B (Reserved) 17 APPENDIX C (Reserved) 18 follows: Appendix D WARRANTY The warranties on water meters included in Project Materials and Supplies, and on Work, and Services shall be as Proicet Materials and Supplies. (a) General. Meters and equipment included in Project Materials and Supplies that Client purchases from HD Supply Waterworks are warranted by the manufacturer to be free from Manufacturers' Defects for the period specified in the manufacturer's warranty. A copy of the present warranty of each meter manufacturer that will supply meters and equipment as part of the Project Materials and Supplies is attached hereto as Exhibit D-1. The term of such manufacturer's warranty shall be as set forth in such attached warranty (as the same may be changed from time to time during the course of the performance of the Master Agreement, but with changes to apply only to purchases of meters occurring after the change becomes effective), but generally the start date for meter and equipment warranties is the date of the manufacturer's shipment of such equipment as noted in the applicable Acceptance Certificate attached to this Agreement as Exhibit A-2 ("Manufacturer's Warranty Period'). PROJECT MATERIALS AND SUPPLIES OTHER THAN METERS and EQUIPMENT ARE NOT WARRANTED. HD SUPPLY WATERWORKS DOES NOT PROVIDE ANY SEPARATE WARRANTY FOR PROJECT MATERIALS AND SUPPLIES. (b) HD Supply Waterworks' Responsibilit . Upon any breach of the manufacturer's warranty on a water meter noticed to HD Supply Waterworks during the applicable Manufacturer's Warranty Period, ffD Supply Waterworks' sole responsibility shall be to cooperate with Client in arranging for the manufacturer to repair or replace any defective meters or equipment. 2. Installation Work and Services, (a) General. HD Supply Waterworks warrants that all installation Work and Services provided by HD Supply Waterworks shall be performed by HD Supply Waterworks in a workmanlike manner and in compliance with any specifications set forth in this Agreement, with such warranty to expire one year from the date when such installation Work was performed or such Services were provided (the "Warranty Period"). (b) Exclusive Remed . Upon any breach of HD Supply Waterworks' warranty as to installation Work or Services during the applicable Warranty Period, HD Supply Waterworks' sole responsibility shall be to perform any corrective installation Work or Services necessary to bring HD Supply Waterworks' installation Work and Services into compliance with such requirements. 3. DISCLAIMER OF FURTHER WARRANTIES. EXCEPT FOR THE FOREGOING EXPRESS WARRANTY, HD SUPPLY WATERWORKS DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL HD SUPPLY WATERWORKS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND. 19 Exhibit D-1 Manufacturers' Warranties Attached to this Exhibit D-I are the manufacturers' warranties for each of the manufacturers of Project Materials. 20 F- 12 w Emil 8 -0 2 12 - ME ;6 E 2w - . 'S Z5 1P v . OE 12 E E v t :FF E rL z2 tg cS E E E 2 T, -2- Eo 0 2.t Cc iE W. 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Preservation Information Refer to Records Retention Schedules at https.-IlwNw.tsl.texas..qovlslrmlrecordspubsllocalretention.htmI Retention Schedule: Record Series #: Retention Period: Project Name (If applicable): • Is this document an Original orCopy_? • Did your department retain a scan papercopy or both ? Notes: Is this document part of an Ordinance _, Resolution Contract or Agreement - ? If yes, provide number If no, provide other parties information Notes: Anyqddition,alt information that may" be useful to the City Secretary about this document: C4 � mbub/ lyttlklt)�, Document Transmittal Form 9115116 CERTIFICATE OF INTERESTED PARTIES FORM 1295 Complete Nos, I - 4 and 6 it there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 it there are no interested parties, CERTIFICATION OF FILING Certificate Number. 1 Name of business entity filing, form, and the city, state and country of the business entity's place of business. 2016-139356 HD Supply Waterworks, LTD. Dallas, TX United States Date Fftedz 11/22/2016 2 Name of governmental entity or State agency that is a party t,6 the contFa—ci for �ahicfi the form 1 being filed. City of Anna Date Acknovdedged* 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other prop" to be provided under the contract. PID#228 Water Meter Project 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check appitcable) Controlling Intermediary 5 Check only if there is NO Interested Party. 6 AFFIDAVIT I swear, or affirm, urider penalty of perjury, that the above disclosure is true and correct. REBECCA L HAMADY Notary PubliC, State of Texas V" MY Commission Expires 000bet 21, 2018 Si, tureo. uthorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE Sworn to and subscribed before me, by the said this the dyof 1'JVV'VH!y9;4Z, 20_&,_ to certify which, itness my hand and seal of office. '0-0' (00 6WA L Awoy 6Jo-r,4g y - — Signature of officer administering oath Printed name of officer administering oath Title of officer administe6ng oath Forms pro\dded by Texas Ethics Commission wWW.ethicS.StatS.tX.US VArsion VI-0-277