HomeMy WebLinkAboutresolution.council.089-23RESOLUTION #089
(Series of 2023)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND BARBIZON LIGHT OF THE ROCKIES, INC. AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract for the
purchase and installation of an LED Lighting Package, which replaces
approximately 130 of the Wheeler Opera House's current theatrical lighting
inventory with energy efficient LED fixtures, between the City of Aspen and
Barbizon Light of the Rockies, Inc., a true and accurate copy of which is attached
hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract for
the purchase and installation of an LED Lighting Package between the City of
Aspen and Barbizon Light of the Rockies, Inc., a copy of which is annexed hereto
and incorporated herein, and does hereby authorize the City Manager to execute
said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 20' day of June 2023.
Torre, Mayor
I, Nicole Henning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council
of the City of Aspen, Colorado, at a meeting held, June 20th, 2023.
`mac'
Nicole Henning, City C)Ierk
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CITY OF ASPEN STANDARD FORM OF AGREEMENT
SUPPLY PROCUREMENT
aTroFeSPEN
City of Aspen Project No.: 2023-180
AGREEMENT made as of 26t" day of May, in the year 2023.
BETWEEN the City:
The City of Aspen
c/o Sara Ott
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970) 920-5055
And the Vendor:
Barbizon Light of the Rockies, Inc
8269 East 23`d avenue
Suite 111
Denver, CO 80238
303-394-9875
Summary Description of Items to be Purchased:
Contract Amount:
Total: $218,098.90
If this Agreement requires the City to pay
an amount of money in excess of
$50,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Approval:
Date: 06/13/2023
Resolution No.: #089
LED Lighting package including replacement fixtures for all of the Wheeler's current conventional
lighting units. 136 total fixtures are included in this purchase.
Exhibits appended and made a part of this Agreement:
Exhibit A: Barbizon Proposal
Exhibit B: Full List of Equipment, as outlined in the ITB
DocuSign Envelope ID: 65DAE2FC-12DC-4911-8651-AD6093A28C05
The City and Vendor agree as set forth below.
1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A
appended hereto and by this reference incorporated herein as if fully set forth here for the sum
set forth hereinabove.
2. Delivery. (FOB 320 E Hyman Ave, Aspen CO 81611)
[Delivery Address]
3. Contract Documents. This Agreement shall include all Contract Documents as the
same are listed in the Invitation to Bid and said Contract Document are hereby made a part of
this Agreement as if fully set out at length herein.
4. Warranties. ETC warranty statement attached.
5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure
to the benefit of and be binding upon the City and the Vendor respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor the
Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party.
6. Third Parties. This Agreement does not and shall not be deemed or construed to
confer upon or grant to any third party or parties, except to parties to whom Vendor or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Vendor
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
7. Waivers. No waiver of default by either party of any of the terms, covenants or
conditions hereof to be performed, kept and observed by the other party shall be construed, or
operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
8. Agreement Made in Colorado. The parties agree that this Agreement was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to
be exclusively in the courts of Pitkin County, Colorado.
9. Attorney's Fees. In the event that legal action is necessary to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable
attorney's fees.
10. Waiver of Presumption. This Agreement was negotiated and reviewed through the
mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the
parties in the negotiation, review or drafting of the Agreement.
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11. Certification Regarding Debarment. Suspension, Ineligibility, and Voluntary
Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from participation in any transaction with a Federal or State department or agency. It
further certifies that prior to submitting its Bid that it did include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event
that Vendor or any lower tier participant was unable to certify to the statement, an explanation
was attached to the Bid and was determined by the City to be satisfactory to the City.
12. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(A) Vendor warrants that no person or selling agency has been employed or retained to solicit
or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Vendor for the purpose of
securing business.
(B) Vendor agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(C) Vendor represents that no official, officer, employee or representative of the City during
the term of this Agreement has or one (1) year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof, except those that may have been
disclosed at the time City Council approved the execution of this Agreement.
(D) In addition to other remedies it may have for breach of the prohibitions against contingent
fees, gratuities, kickbacks and conflict of interest, the City shall have the right to:
I . Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a vendor, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Vendor; and
4. Recover such value from the offending parties.
13. Termination for Default or for Convenience of City. The sale contemplated by this
Agreement may be canceled by the City prior to acceptance by the City whenever for any reason
and in its sole discretion the City shall determine that such cancellation is in its best interests and
convenience.
DocuSign Envelope ID: 65DAE2FC-12DC-4911-8651-AD6093A28C05
14. Fund Availability. Financial obligations of the City payable after the current fiscal
year are contingent upon funds for that purpose being appropriated, budgeted and otherwise
made available. If this Agreement contemplates the City using state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
15. City Council Approval. If this Agreement requires the City to pay an amount of
money in excess of $50,000.00 it shall not be deemed valid until it has been approved by the City
Council of the City of Aspen.
16. Non -Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap,
or religion shall be made in the employment of persons to perform under this Agreement.
Vendor agrees to meet all of the requirements of City's municipal code, section 13-98, pertaining
to nondiscrimination in employment. Vendor further agrees to comply with the letter and the
spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and
federal laws respecting discrimination and unfair employment practices.
17. Integration and Modification. This written Agreement along with all Contract
Documents shall constitute the contract between the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, vendor understands that no City
official or employee, other than the Mayor and City Council acting as a body at a council
meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
18. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Vendor for the purposes of executing this Agreement and that he/she has full
and complete authority to enter into this Agreement for the terms and conditions specified
herein.
19. EIectronic Signatures and Electronic records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
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IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement
to be duly executed the day and year first herein, of which, to all intents and purposes, shall be
considered as the original.
FOR THE CITY OF ASPEN:
0*0WMp W by:
By:
Aspen City Manager
6/21/2023 1 5:06:19 PM PDT
Date
Approved as to form:
FpeeY7iyird by:
j-- K. �
City Attorney s "Office
SUPPLIER:
�OoccupBBig jand by: , _- I,
pt v► /�L4uytw
07408C230E00404—
Peter Maurelli
systems Integrator
Title
5/30/2023 1 12:25:40 PM MDT
Date
DocuSign Envelope ID: 65DAE2FC-12DC-4911-8651-AD6093A28C05
EXHIBIT A: Barbizon Proposal
May 11, 2023
BAR131Z-ON
j }' 6 '' T
Asal Vojdani
—
Procurement Officer
City of Aspen
MMR O C K 1 E S
Re: Bid 2023-180
Systems Integrators for
51522 LED Lighting Package — Lighting Equipment Upgrades
Stage and Studio
Lighting, Control and
Good Morning Mrs. Vojdani,
Rigging Systems
Thank you for the opportunity to submit the enclosed proposal for the Wheeler
Barbizon Light of the
Opera House LED Lighting Package. Please find some details of my proposal below
Rockies, Inc.
for you reference.
8269 East 23�d Avenue.
Suitel 11
I would like to call your attention to two line items in my proposal. You will see
Denver, CO 80238
that I have listed the following items twice: C-Clamp & 5' Truel jumper cable.
303.394-9875
Each items is marked with a (*) on the bid form. I have done this to address
included versus additional items from ETC.
C-Clamps — ETC includes a C-Clamp with each Ellipsoidal style fixture (Series 3 &
ColorSource Spot V). This will offer 110 of the 126 clamps to you at no charge. I
have added a second line to reflect the 16 additional clamps required to fulfill your
Atlanta
RFP requirement.
Boston
5' Truel jumper cable — ETC includes a power cable with each of the specified
Charlotte
fixtures. This will offer 126 of the 134 power cables to you at no charge. I have
added a second line to reflect the 8 additional power cables required to fulfill your
Chicago
RFP requirement.
Dallas
Lead Time — Current lead time from the factory on all equipment is 8-10 weeks.
Denver
Freight — I have added a line for freight charges. Due to the remote location of the
Wheeler Opera House most LTL companies use interline carriers to service Aspen.
Los Angeles
This increases the cost and increases the risk of loss or damage. Our response
includes a dedicated truck with a lift gate to deliver your to the job site.
London
Miami
If you have any questions, please do not hesitate to contact me directly. We look
forward to serving you and the Wheeler Opera House.
New York City
Peter Maurelli
Washington, D.C.
04-,&
Phoenix
Lighting Systems Integrator
Orlando
720-798-2877
DocuSign Envelope ID: 65DAE2FC-12DC-4911-8651-AD6093A28C05
'46�� L
�a
CITY DFASP'EN
BID PROPOSAL FORM
PROJECT NO.: 2023-180
BID DATE: May 121", 2023
PROJECT: 51522 LED Lighting Package — Lighting Equipment Upgrades
PROPOSAL SUBMITTED BY: Barbizon Light of the Rockies, Inc.
CONTRACTOR
CONTRACTOR'S PROPOSAL
TO: The Governing Body of the City of Aspen, Colorado
The undersigned responsible bidder declares and stipulates that this proposal is made in good
faith, without collusion or connection with any other person or persons bidding for the same
work, and that it is made in pursuance of and subject to all the terms and conditions of the
advertisement for bid, the invitation to bid and request for bid, all the requirements of the bid
documents including the plans and specifications for this bid, all of which have been read and
examined prior to signature. The bidder agrees to keep this bid open for SixtV (60)
consecutive calendar duns from the date of bid opening.
The Contractor agrees that construction shall start immediately following a mandatory pre -
construction conference held by the Engineering Department, which also constitutes the Notice to
Proceed. Submission of this proposal will be taken by the City of Aspen as a binding covenant
that the Contractor will finish construction within the time specified in the Special Conditions of
this contract document.
The City of Aspen reserves the right to make the award on the basis of the bid deemed most
favorable to the City, to waive any informalities or to reject any or all bids.
The City shall not pay the Contractor for defective work and/or for repairs or additional work
required for successful completion of the project. All work not specifically set forth as a pay item
in the bid form shall be considered a subsidiary obligation of the Contractor and all costs in
connection therewith shall be included in the prices bid for the various items of work. Prices shall
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Contractor's Initials
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include all costs in connection with furnishing the proper and success completion of the work,
including furnishing all materials, equipment and tools, and performing all labor and supervision to
fully complete the work to the City's satisfaction.
Poor quality and workmanship shall not be paid for by the City. Such work product must be
removed immediately and replaced properly at no cost to the City.
All quantities stipulated in the bid form at unit prices are approximate and are to be used only as a
basis for estimating the probable cost of work and for the purpose of comparing the bids
submitted to the City. The basis of payment shall be the actual amount of materials furnished and
work done. The Contractor agrees
to snake no claims for damages, anticipated profit, or otherwise on account of any differences
between the
amount of work actually performed and materials actually furnished and the estimated amount of
work.
The City reserves the right to increase or decrease the amount of work to be done on the basis of
the bid unit price and up to plus or minus Twenty Five (25) Percent of the total bid.
By signing this document, Contractor certifies and represents that at this time:
(i) Professional shall confirm the employment eligibility of all employees who are
newly hired for employment in the United States; and
(ii) Professional has participated or attempted to participate in the Basic Pilot
Program in order to verify that it does not employ illegal aliens.
I hereby acknowledge receipt of ADDENDUM(s) numbered one through three .
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Contractor's Initials
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ESTIMATED QUANTITY LIST
Source Four Series 3 Ellipsoidal with XDLT Shutter Barrel -- Black
Item Name
Qt
Unit
Price
Total Item Price
Source Four Series Ellipsoidal with XDLT Shutter Barrel
30
$2.063.30
$61.899.00
19' XDLT lens tube with media frame
26
$346.50
$9,009.00
26' XDLT lens tube with media frame
6
$261.50
$1,569.00
Total
$72.477.00
ETC ColorSource SPOT V with Shutter Barrel -- Black
Item Name
Qt
Unit
Price
Item Price
ColorSource SPOT V with Shutter Barrel
80
$1,241.10
$99,288.00
50' LEDspecific lens tube with media frame
26
$270.90
$7,043.40
260 EDLT lens tube with media frame
28
$236.30
$6,616.40
36* EDLT lens tube with media frame
26
$236.30
$6,143.80
19' EDLT lens tube with media frame
4
$236.30
$945.20
Total
$120,036.80
ETC ColorSource Fresnel V -- Black
Item Name
Q
Unit
Price
Item Price
ColorSource Fresnel V
16
$1,008.00
$16,128.00
Total
$16,128.00
Additional Components
Item Name
aty
Unit
Price
Item Price
C-Clamp
110
Included
*C-Clamp
16
$17.00
$272.00
Safety Cable - Black
126
$3.70
$466.20
A Size Pattern Holder
110
Included
5' True1 to stage pin connector
49
Included
10' True1 jumper cable
49
Included
5' True1 jumper cable
28
Included
*5' True1 jumper cable
8
$47.30
$378.40
10' DMX cable
49
$34.90
$1,710.10
5' DMX cable
26
$31.90
$1,148.40
Total
$3,975.10
Freight
$5,482.00
TOTAL PRICE $218,098.90
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Contractor's Initials
DocuSign Envelope ID: 65DAE2FC-12DC-4911-6651-AD6093A28C05
Total Bid in Numbers: $218,098.90
Total Bid in Words: Two Hundred Eighteen Thousand Ninety -Eight dollars & 90/100ths
I acknowledge that in submitting this bid it is understood that the right to reject any and all bids
has been reserved by the owner.
Authorized Officer: Peter Maurelli
Title: Lighting_Systems Integrator
Full name signature: *4mp
Company address: 8269 E 23ra Ave. # 1 I 1
Denver CO 80238
Telephone number: 720-798-2877
Email: pmaurelli@barbizon.com
Attested by:
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Kate Daugherty `M'
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Contractor's Initials
DocuSign Envelope ID: 65DAE2FC-12DC-4911-8651-AD6093A28C05
Subcontractor & Material Supplier List
Name: Electronic Theater Controls Phone #: 800-688-4116
Address: 3031 Pleasant View Road, Middleton WI 53562
Service or Product: Source Four LED Series 3 Col rSaurce S of V.Color Source Fresnel V �
Accessories
Name: TMB Phone #: 818-899-8818
Address: 527Park Ave. San Fernando CA 91340
Service or Product: 1O' ❑MX cable 5' DMX cable
Name:
Address:
Service or Product. -
Name:
Address:
Service or Product. -
Name:
Address:
Service or Product:
Name:
Address:
Service or Product:
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Phone #:
Phone #:
Phone #:
Phone #:
Contractor's Initials
DocuSign Envelope ID: 65DAE2FC-12DC-4911-8651-AD6093A28C05
EXHIBIT B: List of Equipment
The following list contains all of the equipment requested to complete the contract:
Source Four Series 3 LED Ellipsoidal with XDLT Shutter Barrel — Black
30x — Source Four Series 3 Ellipsoidal with XDLT Shutter Barrel
26x — 190 XDLT lens tube with media frame
6x — 260 XDLT lens tube with media frame
ETC ColorSource SPOT V with Shutter Barrel — Black
80x — ColorSource SPOT V with Shutter Barrel
26x — 500
EDLT lens tube with media frame
26x — 36'
EDLT lens tube with media frame
28x — 26'
EDLT lens tube with media frame
4x — 190
EDLT lens tube with media frame
ETC ColorSource Fresnel V — Black
16x — ColorSource Fresnel V
Additional Components
126x — C-Clamp
126x — Safety Cable - Black
110x — A Size Pattern Holder
41x — 5' True1 to stage pin connector
49x —10' True1 jumper cable
36x — 5' True1 jumper cable
49x —10' DMX cable
36x — 5' DMX cable
DocuSign Envelope ID: 65DAE2FC-12DC-4911-8651-AD6093A28C05
ELECTRONIC THEATRE CONTROLS, INC.'S STANDARD TERMS AND CONDITIONS OF SALE AND WARRANTY
TERMSAND CONDITIONS
1. Acceptance of Terms. The following terms and conditions, and those on the face hereof, shall control as to any order for Electronic Theatre Controls, Inc. ("ETC")
products ("Products") accepted by ETC ("Order'), notwithstanding any terms and conditions that may be contained in any purchase order or other document of Customer,
and ETC's acceptance of any order is expressly made conditional on Customer's assent to the following terms and conditions and those on the face hereof (the
"Agreement'). For Customers installing or servicing, or contracting with third parties to install or service, ETC rigging products, additional terms, and conditions
(the "Addendum") is also incorporated as part of this Agreement as though fully set forth herein. The Addendum can befound athttus:llwww.etcconneot.com1S
upoortlWarfantv.aspx. Such terms and conditions will constitute the entire Agreement between the parties as to any order and will supersede any prior understandings,
agreements, representations, or warranties. Such terms and conditions will not be modified, added to, superseded, or otherwise altered except by written document
signed by the President of ETC, or his/her designee, notwithstanding any terms and conditions contained in the purchase order or other document of Customer.
ETC's commencement of performance and/or delivery shall not constitute a waiver of these terms and conditions or any acceptance of any terms and conditions
contained in the Customer's order or other documents. Acceptance of any product or service by the Customer will be construed as acceptance of ETC's terms and
conditions. Any dispute or questions of construction with respect to any order placed with ETC shall be governed by the laws of the State of Wisconsin.
2. Conditions Precedent. The obligations of ETC in this Agreement are subject to the express condition precedent that Customer shall fully perform its obligations under this
Agreement, subject to any written waiver by ETC which shall be at its sole discretion.
3. Payment Terms. Payment terms are net 30 days after date of invoice unless otherwise stated on the sales acknowledgment or invoice. If ETC in good faith doubts
Customer's ability or willingness to pay, ETC may in its discretion complete its performance of this contract upon a cash in advance basis or make deliveries only upon a
C.O.D. basis or file a UCC filing or suspend all or part of its performance here under. All payments are applied to the oldest outstanding invoice. Accounts over thirty (30)
days are subject to a one and one-half percent (1 1/2%) per month (or the highest rate permitted by law, whichever is less) late payment charge. ETC will have the
option of withholding performance under any and all orders from the Customer if an invoice remains unpaid when due.
4. Delivery and Risk of Loss. ETC will attempt to ship the Order for delivery on or about the times requested by the Customer, although time shall not be of the essence in
this contract in this regard, and subject to availability. Any failure by ETC to make shipment as scheduled or requested shall not constitute cause for cancellation, does not
constitute a breach of contract and/or does not entitled Customer to damages of any kind. ETC will attempt to follow Customer's written instructions as to mode and routing
of shipments, but ETC shall retain absolute discretion as to mode and routing of shipments, including express or parcel post for small shipments. ETC will prepay and
bill freight on shipments unless specifically quoted otherwise or upon written instruction from the Customer. Where the Customer has requested expedited freight, the
Customer will be responsible for the incurred additional charges. Orders are shipped at the Customer's risk and ETC's obligation to deliver Orders is discharged upon
the Order's delivery in good condition to the carrier. Shipments are FOB ETC's factory or warehouse. Unless specifically prohibited, partial shipments will be made.
Federal, state, and local taxes, duties and other charges are the responsibility of the Customer. If for any reason Customer is unable or unwilling to take delivery of the
Order, ETC may, at its sole discretion, store the Order and any and all costs associated with such storage, including taxes or insurance, shall be immediately paid by
Customer. Unless otherwise specifically noted and where shipping terms dictate that Customer take delivery at ETC's facilities, Customer is solely responsible for determining
any export licensing requirements, for obtaining any necessary licenses or official authorizations, and for handling any customs formalities for export of the Order. Claims
for shortage or damaged goods must be made within ten (10) days of receipt by the Customer. The Order will be carefully packed and delivered in good condition to the
carrier. All claims for loss or damage in transit must be made by the consignee directly to the carrier. ETC will make commercially reasonable efforts to render aid and
assistance in the presentation and enforcement of such claims without waiver of our rights to have compliance with the terms of payment of our invoices.
5. Warranty. ETC's Standard Warranty and limitation of liability ("Warranty") is the complete and final warranty with regard to Products. ETC's obligations u n d e r the Warranty
are limited to repairing or replacing any of the Products which shall, within the applicable Warranty period, fail due to fault manufacture, design, or workmanship. Customer
acknowledges and agrees that the provisions of the Warranty are the sole and exclusive remedy available to the Customer for any defective Products.
6. Warranty Disclaimer. EXCEPT AS SET FORTH IN THE WARRANTY, ETC EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FORA PARTICULAR PURPOSE.
7. Change Orders. Any changes in engineering drawings, specifications, or in other terms of manufacture, assembly, or shipment, requested by Customer, must be in writing
and approved by ETC. If any such change by Customer causes an increase in the cost of, or in the time required for performance of, any part of the contract, then ETC shall
make a reasonable adjustment to the price of the Order. Products ordered which differ in any way from ETC's standard catalog items will require drawings approved in writing
by the Customer. When drawings are approved, they shall take precedence over all other written or verbal instructions.
8. Quotations and Pricing. Quotations for standard Products are valid for ninety (90) days from date of issuance while quotes for custom Products are
valid for thirty (30) days from issuance. Orders are effective only when accepted and acknowledged by ETC in writing. Minimum order is $25.00 net, exclusive of freight. All
prices are in the applicable currency listed on the invoice. Prices, models, part numbers, and specifications are subject to change without notice. Orders must be in writing.
Phone orders will be accepted from established accounts when followed by written confirmation. The acceptance of any Order does not imply conformance with plans and
specifications unless the plans and specifications accompany the Order and are accepted as binding by ETC in writing. Price protection will o n I y be given to the following:
(i) p r of e c t Orders that are set to be released within 180 days from the date of order acknowledgement; and (ii) standard product Orders that are set to be released within 90
days from the date of the order acknowledgement. If the Order does not release within those time periods previously stated, ETC may, with notice to the Customer,
adjust the pricing for such Order based upon the change in the most recently published Producer Index, Total Manufacturing Industries, as published by the
US Dept of Labor, Bureau of Labor Statistics as of the date of the Order release compared to the information published as of the order acknowledgement
date.
9. Structures. Except to the extent ETC is specifically responsible for any structural element per this Order, Customer represents and warrants that the existing structure,
or anticipated structure, if not yet completed, including, without limitation, any existing steel, walls, columns, tresses, footings, hoist attachment points, wiring, power supplies,
or any other foundation or existing structural elements (the "Structure") shall be adequate to support the weight, size, load, and all other technical specifications of the
Products, and Customershall hold ETC harmless from any failure of any Structure.
10. Cancellation. If Customer cancels all or any portion of the Order prior to shipment, Customer shall be liable to ETC for a cancellation charge equal to ETC's actual costs
incurred in connection with that portion of the Order that is cancelled, including, without limitation, labor, and materials.
Rev 12/15/2021
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DocuSign Envelope ID: 65DAE2FC-12DC-4911-8651-AD6093A28C05
ELECTRONIC THEATRE CONTROLS, INC.'S STANDARD TERMS AND CONDITIONS OF SALE AND WARRANTY
11. Security Interest. Customer represents that it is not bankrupt or insolvent. ETC retains a security interest in the Products to secure payment of the purchase price and all other
indebtedness now or hereafter owed by the Customer to ETC. At ETC's request, Customer will execute a financing statement or statements evidencing such security interest
and will take any other action necessary to perfectthe same.
12. Waiver. No failure of ETC to insist upon or compel compliance by the Customer with any provision of this Agreement shall be construed as a waiver by ETC of its
right to insist upon compliance with this Agreement. No waiver by ETC of any breach by Customer shall be effective unless in writing signed by the President of ETC, or
his/her designee, and no waiver by ETC of any breach by Customer shall be deemed a waiver of any other breach.
13. Non -Warranty Returns, Products returned without ETC's written permission will not be accepted. Products returned for credit must be in accordance with this
Agreement. Products must be unused, in original cartons and in saleable condition, subjectto ETC's quality control and test inspection. Restocking charges of $25.00 or
25% of invoice (whichever is greater) plus any repacking or reconditioning costs will be deducted from the credit. Returns for warranty work will be in accordance
with ETC's established warranty procedures. In no case will permission be granted to return specially modified or custom Products, or merchandise invoiced more
than six (6) months prior to date of Customer's return request.
14. Use of Image. Customer agrees and consents to allow ETC to refer to and/or use: (i) the installed ETC Products, (ii) the location of the installed Products,
(III) Customer's respective logo(s), trademark(s), or any other graphical representation of Customer's use of the ETC Products, and/or (iv) photographs of the installed
ETC Products in any material of any kind used or produced by or at the direction of ETC, without the prior written consent of Customer; provided, however, that ETC may
not, without prior written consent, do any of the foregoing in a manner that implies endorsement by Customer.
15. Force Majeure. ETC shall not be liable for any delay in the delivery of or failure to deliver the Order, or for any delay in the performance of or failure to perform any term
of this Agreement, if the delay or failure is caused by, related to, or arising out of a circumstance beyond the reasonable control of ETC, including, without limitation, the
following circumstances: (a) acts of God; (b) flood, fire, earthquake, explosion, or other casualty; (c) war, invasion, hostilities (whether war is declared or not), terrorist
threats or acts, riot or other civil unrest; (d) actions, embargoes or blockades in effect on or after the date of this Agreement; (e) law, order, or other action by any
governmental authority; (f) strikes, material shortages, labor stoppages or slowdowns, inability to obtain parts or materials, delays in transit, or other industrial
disturbances; (g) shortage of adequate power or transportation facilities; and (h) pandemic, epidemic, or disease, including without limitation COVID-19. If ETC is wholly or
partially unable to perform or deliver because of any circumstance beyond its reasonable control, ETC may allocate performance and delivery among its customers or may
terminate this Agreement without any further liability to Customer. ETC and Customer agree that this Section 15 does not require the circumstance beyond ETC's reasonable
control to be unforeseeable at the time they enter into this Agreement.
16. Confidentiality. To the maximum extent permitted by law, the terms, and conditions of this Agreement, as well as any information provided by ETC, including but not limited
to pricing, drawings, specifications, or other materials prepared by ETC, to Customer shall be treated as confidential and shall not be disclosed to any third party or
be used for any purpose except to fulfill Customer's obligations created hereunder, without the express prior written consent of ETC. Customer agrees to limit disclosure of
the confidential information to its employees, agents, and subcontractors who have a need to know such information, and who have been informed of and agree to be
bound by the confidentiality obligations of this Agreement. This confidentiality obligation shall survive the termination or cancellation of this Agreement.
17. Miscellaneous. This Agreement shall be governed by the laws of the state of Wisconsin without regard to its conflict of laws principles. The parties agree t h a t the United
Nations Convention on the International Sale of Goods shall not apply to this Agreement. The parties consent to the exclusive jurisdiction and venue of the courts located
in Dane County, Wisconsin for any action, suit or proceeding. If suit or action is instituted by ETC to enforce payment or performance by the Customer, the Customer
agrees to pay all reasonable costs and attorney's fees incurred by ETC. If any part of this Agreement is held to be invalid, illegal, void or to be in conflict with any law, the
validity of the remaining terms or provisions of this Agreement shall not be affected, and such part, term, paragraph, or provision shall be construed and enforced in such a
manner to fulfill the intent expressed in this Agreement to the maximum extent permitted bylaw.
WARRANTY
Warranty Coverage. ETC WILL ONLY BE OBLIGATED TO HONOR THE WARRANTY SET OUT BELOW UPON RECEIPT OF FULL PAYMENT OF THE ORDER.
Electronic Theatre Controls, Inc. ("ETC") warrants to the original owner or retail customer ("Customer") that during the warranty period defined below, ETC will repair or replace
its Products that are defective in materials or workmanship which cause the Product to fail to operate in accordance with ETC's published specifications for the Product in effect
as of the date of shipment, subject to the terms of this limited warranty. The warranty period of box Products shall begin on the date of shipment ("Warranty Start Date"), except
the Warranty Start Date shall begin on the date of energization for Orders which include energization performed by ETC or an authorized service provideracting on ETC's behalf. If
no energization date is recorded, however, the Warranty Start Date shall begin on the date of shipment. The controlling warranty, terms and conditions, and product warranty
periods is available at the time of order acknowledgment, either by hard copy or by the PDF d o c u m e n t found via the internet link listed on the order acknowledgment as of the
date of the order acknowledgment.
If ETC shall fail to repair or replace defective Products within a reasonable time after they are returned to ETC, or if ETC shall wrongfully fail to make delivery or shall
wrongfully repudiate this contract, then Customer shall be entitled to recover from ETC such part of the purchase price as has been paid by Customer to ETC. The remedy
stated in the preceding sentence shall be Customer's exclusive remedy for any breach, non -delivery, or repudiation by ETC or for any other liability of ETC to Customer. This
exclusive remedy shall not be deemed to have failed its essential purpose so long as ETC is willing and able to repair or replace defective Products in the prescribed manner.
Warranty Exclusions. This Warranty does not impose any liability or duty upon ETC for: (i) any Product or part of a Product damaged by or subject to accident, negligence,
alteration, abuse or misuse by Customer, or any accessories or parts not supplied by ETC; (ii) any damage caused by the unauthorized adjustment, repair or service of the Products
by anyone other than ETC or its authorized repair agents; (iii) any damage, to any Product, or part of a Product caused by or due to an act of God, any catastrophe
resulting from earthquake, fire, flood, explosion, inability to obtain materials or utilities, or any other cause beyond the reasonablo control of ETC. This warranty also does not
cover "consumable" parts such as fuses, lamps, color media or components which may be warranted directly to the Customer by the original manufacturer. This Warranty
does not extend to items not manufactured by ETC. Frelght terms on warranty repairs are FOB ETC factory or designated repair facility. Collect shipments or freight allowances will
not be accepted.
Rev.12115/2021
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DocuSign Envelope ID: 65DAE2FC-12DC-4911-8651-AD6093A28C05
ELECTRONIC THEATRE CONTROLS, INUS STANDARD TERMS AND CONDITIONS OF SALE AND WARRANTY
ETC's sole responsltplily under this Warranty shall be to repair or replace at ETC's option such Products or parts of Products as shall be determined to be defective on
ETC's inspection. ETC, at its option, may perform on -site warranty repairs. If ETC chooses to replace the Product and is notable to do so because it has been
discontinued or is not available, ETC may replace it with a comparable product. ETC reserves the right to use new, re -worked, repaired, or refurbished parts in the
repair or replacement of any Product covered by this Warranty. ETC will not assume any responsibility for any labor expended or materials used to repair any Products
without ETC's prior written authorization, ETC SHALL NOT BE RESPONSIBLE FOR ANY INCIDENTAL, GENERAL. OR CONSEQUENTIAL DAMAGES, DAMAGES
TO PROPERTY, DAMAGES FOR LOSS OF USE, TIME, PROFITS OR INCOME, OR ANY OTHER DAMAGES.
The Customers obligations during the warranty period under this Warranty are to notify ETC within one week of any suspected defect and to return the Products
prepaid to ETC at ETC's factory or authorized service center. The one -week notice period does not apply to claims for shortage or damaged Products.
This written Warranty is intended as a complete and exclusive statement of the terms thereof. Prior dealings or trade usage shall not be relevant to modify, explain or
vary this Warranty. Acceptance of, or acquiescing in, a course of performance under this Warranty shall not modify the meaning of this Warranty even though either
party has knowledge of the performance and a chance to object.
THIS LIMITED WARRANTY IS THE ONLY WARRANTY APPLICABLE TO THE EQUIPMENT AND REPLACES ALL OTHER WARRANTIES OR CONDITIONS,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. SPECIFICALLY, EXCEPT AS PROVIDED HEREIN, ETC UNDERTAKES NO RESPONSIBILITY FOR THE QUALITY OF THE PRODUCT
OR THAT THE PRODUCT WILL BE FIT FOR ANY PARTICULAR PURPOSE FOR WHICH CUSTOMER MAY BE BUYING THE PRODUCT. ANY IMPLIED
WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. NO ORAL OR WRITTEN INFORMATION, OR ADVICE GIVEN BY ETC, ITS AGENTS
OR EMPLOYEES, SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY.
For Dealers located in North and South America: ETC manufactured Products forwarded outside of North and South America will immediately void this Warranty
unless the dealer has obtained an additional ETC International Warranty Provision for the specific Product prior to the Product's initial shipment from ETC. ETC is
not obligated to provide an ETC International Warranty Provision. Please contact ETC to inquire and purchase an ETC International Warranty Provision.
ETC warrants its Products, commencing on the Warranty Start Date as defined above for 2 years with the following exceptions in duration:
90 Day Warranty 120 Day Warranty 1 Year Warranty 3 Year Warranty
Demo, Loaner, Used Equipment and ETC Product Repairs (2) SmartProducts Prodigy, Vortek Classic, QuickTouch & Foundation (1)
Hlighthack kit Source 4WRD Fixture (3)
Power Package Upgrades (with option for additional 2 years)
S Year Warranty a Year Warranty
HID Ballasts Unison Dimming forthe DR/DRd enclosure
Unison Foundry
ArcSystem Driversand F-Drive
EchoRex Products
Unison Mosaic and Echo
Split Warranties Other Warranties
3 years Entire Fixture; 10 Years LED Array -ETC Automated Lighting Products (3) Software: Per applicable End User License Agreeme nt
5 years Entire Fixture; 10 Years LED Array- LED Fixtures (3), (4) High End Systems, Inc. products; Per High End Systems, Inc's Warranty Statement
hl to s•Ilwww-el ccnnncc .m m14+onort;war 1.1 mv.aumr
1 Prodigy and Vortek Classic wanantyrequires an annual check of the system by an ETC trained rigging installerin orderforthe Warrantylo remain valid. Pleaseconlactyour authorized rigging dealerwilh questions.
2 Productrepairsoou"ng within in the originalwarrany period remain under the original Wananly urlfess that Warrantywill expire priorto the 120 day mark. In thalcase, the warranty period will be extended by 120 daysfrom the
date of shipment of the fapared Produclor part. Partsfopaeed after iheo4nal womanly period has expired are warranted for 120 daysfrom the date of shipmentof the repaired Productor partof Product
3 CoversLED failure only; doesnotcover lumen maintenance(L70) or colormainlenance
4 ExcludesSource 4WRD Fixture
This is the current -fan; and Conditions and Wanantystatementat the time of publication for ElectronieTheatre Controls, Inc- and ElectronicTheatre ControlsAsia Limited TheTerms and Conditions and Warranty statement are
subjectlochange atanytime without notice. The controlling Warrantystatement, aswell as applicableTerms and Conditions, are available atthe time of order acknowledgment For Terms and Conditionsand Warranty statement for ETC's
affiliate companies, please vail IltiosJhrxw.olocon rocl.solN&tl WrytanN asmx
Rev.12/1512021
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