ENGINEERING SERVICES AGREEMENT
This Agreement made this 23rd day of August 1995 is entered
into by and between THE SOUTHERN NEW ENGLAND TELEPHONE
COMPANY, (hereinafter called "NET''), a corporation
specially chartered by the General Assembly of the State of
Connecticut with its principal place of business at 000
Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx 00000 and ANALYTICAL
SURVEYS, INC., (hereinafter called "ASI"), with its
principal place of business at 0000 Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxxx Xxxxxxx, XX 00000, (collectively referred to
herein as the "Parties").
THEREFORE, in consideration of the terms and conditions and
mutual obligations herein, the Parties agree as follows:
1. SCOPE
ASI shall provide to SNET photogrammetry services in order
to create a Geographic Information System (hereinafter
referred to as a "GIS") of SNET's Outside Plant in the
state of Connecticut in accordance with Attachment A, SNET
AM/FM GIS LANDBASE-LANDBASE COMPILATION FROM PHOTOGRAMMETRIC
SOURCES, attached and incorporated by reference herein.
2. TERM
The term of this Agreement shall commence on the above date
and shall continue in effect unless otherwise termination as
provided herein.
3. SERVICES TO BE PROVIDED
ASI shall provide SNET with Outside Plant Photogrammetric
Services ("Goods and Services") set forth in Attachment A.
4. FEES
(A) The sole compensation to be paid to ASI by SNET under
this Agreement shall be specified in Attachment B, FEES.
(B) There shall be added charges in excess of the price
above noted, an amount equal to any taxes, however
designated, hereafter levied, imposed or based upon the sale
covered by this Agreement including federal, state, local
municipal or excise taxes which taxes or amounts in lieu
thereof are charged to or payable by ASI in respect to the
foregoing sale of services, if applicable; exclusive
however, of taxes based upon the certificate of exemption or
similar document or proceeding obtained in order to exempt
the sale from a sales or use tax liability SNET has the
option of obtaining such certificate, documents, or
proceedings.
5. OWNERSHIP OF AERIAL PHOTOGRAPHY
(A) ASI and SNET acknowledge that all aerial photography of
the state of Connecticut taken by ASI under separate
agreement with the state of Connecticut, Office of Policy
and Management is open to the public as indicated by the
attached letter from the state of Connecticut, attached and
incorporated as Attachment C, herein.
(B) ASI shall use such aerial photographs in accordance
with all applicable rules, regulations imposed by the State
of Connecticut or any other governmental authority.
6. BILLING AND PAYMENT
(A) ASI shall submit a detailed invoice to SNET to Xx.
Xxxxx Xxxxxxx at 000 Xxxx Xxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxxx 00000.
(B) 80% of invoice shall be due and payable forty-five (45)
days after delivery of Goods and Services. The balance
shall be due and payable forty-five (45) days after
acceptance as defined in Attachment D, ACCEPTANCE CRITERIA,
attached and incorporated by reference herein.
7. TRAVEL EXPENSES
All travel, food, lodging, and other ASI employees' costs
and charges for the services specified in Attachment B,
FEES, are to be paid for by ASI, except for expenses
specifically stated in Attachment B, FEES, as payable by
SNET.
8. PROJECT MANAGEMENT
ASI shall provide the services, deliver any deliverables,
and complete this Agreement in the manner outlined herein.
SNET shall have the right to monitor ASI's performance
including but not limited to review of progress with ASI's
project manager.
9. PERSONNEL
(A) ASI and its personnel shall devote their best effort
and skill to the services for SNET and the personnel shall
serve subject to SNET approval.
(B) The personnel provided by ASI shall be employees of ASI
(including the Project Manager) for ninety (90) days prior
to the date of ASI's bid or the commencement of services
hereunder, and shall have a minimum of one (1) year
experience in the Mapping field.
(C) Nothing in this Agreement shall be construed to create
an employment or agency relationship between SNET and ASI or
its employees. ASI and ASI's employees shall not be
entitled to any wages, salaries, employee benefits, or other
remuneration from SNET.
(D) ASI shall replace any personnel deemed unsatisfactory
by SNET within one week after notification by SNET. ASI
will absorb all training and project learning time for ASI's
employees and replacements.
10. REQUIREMENTS OF LAW
(A) ASI shall comply, at its own expense, with applicable
provisions of all local, state, and federal laws,
ordinances, statues, rules and regulation, applicable to the
services performed or work furnished under this Agreement,
including but not limited to provisions related to worker's
compensation, equal employment opportunity, unemployment
compensation, sickness and disability, social security
occupational safety and health, wages and hours, taxation,
environmental protection, the Fair Labor Standards Act, the
Federal Occupational Safety Act, the Resource Conservation
and Recovery Act of 1976, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 and rule or
regulations promulgated under these Acts or Statutes. Upon
request from SNET, ASI shall submit evidence of compliance
with or coverage or qualification under all applicable laws
or regulations.
(B) If, in the opinion of SNET's Project Manager any
services being performed by ASI under this Agreement shall
fail to comply with the provisions of any applicable law,
ordinance, statute, rule or regulation, such failure will be
deemed a failure to comply with the provisions of the
Agreement and SNET specifications, for which SNET's Project
Manager may order the work stopped and not resumed until, in
his opinion, ASI has complied with such provisions. Failure
of SNET's Project Manager to be present or to detect such
non-compliance or to stop ASI form proceeding shall not
constitute an endorsement or ratification of ASI's non-
compliance by SNET.
11. SUBCONTRACTOR
(A) ASI shall not subcontract any part of the work without
the written consent of SNET's Project Manager as to both the
subcontracting of the work and the identity of the
subcontractor. All work performed by a subcontractor shall
be deemed work performed by ASI.
(B) All subcontracts shall provide that subcontractors
shall be subject to all contract provisions set forth in the
Agreement and documents insofar as they are applicable to
the work to be done under such subcontracts. Any
subcontract shall be immediately terminated by ASI whenever
SNET's Project Manager's opinion the work of the
subcontractor is unsatisfactory or unnecessarily delayed or
that the subcontractor has violated any of the provisions of
the Agreement or contract documents.
(C) If ASI subcontracts in violation of this provision SNET
may, at is option, and without waiving any other legal or
equitable right, terminate this Agreement and shall
thereupon be relieved from all liability hereunder to ASI of
it purported subcontractor.
(D) SNET hereby grants approval to ASI to subcontract the
airborne GPS of this project to Measurement Science, Inc.
12. PROJECT MANAGERS
(A) Both SNET and ASI shall designate a project manager on
or before commencement of services to be performed under
this Agreement.
(B) ASI's project manager shall serve subject to SNET
approval.
(C) Said project managers shall meet as is mutually agreed
to be necessary, to discuss accomplishments, plans for
future work, new requirements (if any), milestones, problems
and their resolutions.
13. WARRANTY BY ASI
(A) ASI warrants that Goods and Services delivered to SNET
under this Agreement will be at the time of delivery free
and clear of any liens and encumbrances. ASI warrants that
their services and any deliverable will conform to the
Guidelines set forth in Attachment A. ASI further warrants
the deliverables to be free from defect or deficiencies in
workmanship. The Warranties expressed herein shall be in
force for a period of one (1) year from the date of
delivery. ASI shall pay all charges for labor necessary to
diagnose, repair, and correct any error caused.
(B) ASI warrants that the Goods and Services provided
hereunder shall be performed in a professional, courteous
and lawful manner to SNET's satisfaction and in accordance
with the terms and conditions of this Agreement.
14. CONTRACTOR INTERFERENCE
ASI shall perform all operations in a manner so as not to
cause interference with other contractors or SNET employees.
If it becomes necessary during ASI's course of operations to
cause such interference, ASI shall immediately notify SNET's
Project Manager of the anticipated interference and shall
not proceed further with that phase of the work without the
prior written approval of SNET's Project Manger.
15. PATENTS, TRADEMARKS AND COPYRIGHT
ASI warrants that the sale and use of its services or
deliverables hereunder shall not infringe any patent,
trademark, or copyright issued by the United States or any
foreign country. ASI agrees to defend SNET at ASI's own
cost and expense and pay any judgment rendered in any suit
or proceeding and indemnify and hold harmless SNET of any
claim, cost, expenses, or Attorney's fees, in connection
with any allegation that any services or deliverables set
forth in Attachment A and acquired hereunder infringes a
letter patent, trademark or copyright of the United States
or any foreign country or any other rights to copyright or
proprietary information, provided that ASI is reasonably
notified in writing of any claim of infringement and
furnished with any papers received in connection therewith
and provided further that ASI shall have the sole direction
and control of the negotiations or suit which is brought and
that SNET shall assist ASI, at ASI's expense, in said
litigation.
16. PROPRIETARY INFORMATION, NONDISCLOSURE
(A) Each Party pledges that, its officers, employees and
its agents, shall treat any and all information and data
relating to or obtained through the performance of this
Agreement, including but not limited to data relating to the
other's operations, policies, procedures, source material,
techniques, accounts and personnel, (the "Confidential
Information") obtained by each Part, its officers,
employees or agents, as confidential and will not disclose
any such information or data to any employee or third Party
not involved in, or responsible for, the negotiation of or
with respect to this Agreement or effectuating the
provisions thereof. Any oral discussions between SNET and
ASI which relate to the confidential information shall be
considered and treated as "Confidential Information".
(B) Each Party shall protect the Confidential Information
of the other with the same degree of care as it affords its
own proprietary or confidential information, which shall in
no event be less than that degree of care used by a
reasonably prudent person in exercising ordinary care.
(C) Neither Party, its agents, employees, representatives,
subsidiaries, affiliates or parent companies shall, for
themselves or for the benefit of any person or entity, use
or disclose the Confidential Information of the other
whether written or oral, for any purpose, at any time
without the express prior written approval of the disclosing
Party.
(D) Notwithstanding anything to the contrary herein, the
receiving Party shall have no obligation to preserve the
confidentiality of any information which:
(1) was previously known to the receiving Party free of any
obligation to keep it confidential; or
(2) is or become publicly available, by other than
unauthorized disclosure; or
(3) is independently developed by the receiving Party and
said receiving Party can demonstrate that it has not used
the confidential information; or
(4) is disclosed to third Party by the disclosure Party
without restriction; or
(5) is lawfully received from a third Party whose
disclosure would not violate any confidentiality or other
legal obligation.
(E) The obligations hereunder shall survive the
cancellation, termination, or completion of this Agreement.
(F) Upon termination of this Agreement each Party will
immediately return all Confidential Information which may be
demanded by the other as the other's property or certify to
the other Party to the destruction of said Confidential
Information.
17. INSPECTION, AUDIT
(A) SNET, or its representative, shall have the right to
inspect all services hereunder and specifically reserves the
right to conduct on-site visits and perform audits or
operational reviews as SNET deems appropriate and necessary.
Any inspection, audit, review or lack thereof shall not
relieve ASI of responsibility for performance. ASI shall
maintain a true and correct set of records to include, but
not be limited to, referred accounts, invoices and internal
records for all charges and sufficient other detail to
permit reasonable verification or correction of charges and
performance in accordance with this contract.
(B) ASI shall maintain such records in accordance with
generally accepted accounting principles, for the period of
six (6) years. SNET or its representative may, from time to
time, audit any and all such records and ASI agrees to
permit SNET, or its representative, access to examine and
audit these records at all reasonable times and without
additional cost to SNET. ASI shall furnish SNET with
service status and progress reports as SNET may request.
The results of any SNET audit herein shall be determinative
of any matter contested concerning xxxxxxxx by ASI to SNET.
18. INDEMNITY
ASI agrees to indemnify, defend and hold SNET harmless from
and against any claims, damages or expenses (including
attorney's fees) resulting from or arising out of the acts,
omissions, or services of ASI, its agents, servants,
employees, representatives or attorneys, whether or not the
same are made or brought against SNET individually, or
jointly against both parties herein, in the performance of
this Agreement. SNET shall notify ASI in writing of any
such claims made against SNET. Notwithstanding its right to
protection, defense, reimbursement and indemnification by
ASI, and without limiting or restricting the other terms and
provisions contained in this Paragraph, SNET reserves for
itself, at its own option, the exclusive right to settle,
compromise and pay any and all claims, demands, proceedings,
suits, actions or causes of actions which are brought
against either party herein under the terms and provisions
of this Paragraph.
19. TERMINATION
(A) In the event ASI fails t comply with any of the terms
of this Agreement, SNET shall notify ASI in accordance with
Section 26, NOTICES, of said noncompliance. ASI shall then
have thirty (30) calendar days to cure said noncompliance.
If ASI fails to cure said noncompliance, SNET may, without
waiving any other rights it may have, terminate this
Agreement upon written notice to ASI.
(B) Either party may terminate this Agreement at any time,
with or without justification or cause, by giving written
notice to the other party not less than thirty (30) days
prior to the effective date of such termination. No such
termination shall affect or impair the obligation of SNET to
pay ASI amounts on all services completed by ASI prior to
the effective date of termination.
20. INSURANCE
ASI shall carry such insurance covering all its employees as
shall protect it from all claims under Worker's Compensation
in the states where the work in this Agreement shall be
performed and Unemployment Compensations Laws in effect that
may be applicable to it. ASI shall also carry liability
insurance consistent with its indemnification obligations
under Section 18, INDEMNITY, (by name or as a member of an
expressly named covered class) and SNET shall be names as an
additional insured under the general liability insurance and
comprehensive automobile insurance. Such insurance coverage
shall have combined single limits of not less than one
million dollars ($1,000,000.00) for general liability
insurance, one million dollars ($1,000,000.00) for
comprehensive automobile liability and one million dollars
($1,000,000.00) for professional liability insurance. ASI
shall provide SNET proof of such insurance through
certificates of insurance on an annual basis.
21. CONTINGENCY
It is mutually agreed by the parties hereto that neither
party shall be held responsible for any delay or failure in
performance hereunder caused by revolution or other
disorder, war embargoes, government requirements, civil or
military authorities, strikes (even if a party could settle
a labor dispute), floods, acts of nature, inability to
secure material or transportation facilities because of
aforementioned causes, or without limiting the foregoing, by
any other cause not within the control of the party whose
performance is interfered with, and which by the exercise of
reasonable diligence, said party is unable to prevent
whether of the class of causes hereinbefore enumerated or
not.
22. BANKRUPTCY
Either party may terminate this contract by notice in
writing, in the event that the other makes an assignment for
the benefit of creditors, or admits in writing inability to
pay debts as they mature; or a trustee or receiver of the
other, or of any substantial part of the other's assets, is
appointed by any court; or a proceeding is instituted under
any provision of the Federal Bankruptcy Act by the other, or
against the other and is acquiesced in or is not dismissed
within sixty (60) days or results in an adjudication in
bankruptcy.
23. BREACH
SNET may, on ASI's breach of or noncompliance with Paragraph
3 of Attachment D, ACCEPTANCE CRITERIA, where no other
remedy exists herein, terminate this Agreement and at SNET's
option because damages are difficult to ascertain recover
liquidated damages and not as a penalty of one thousand
dollars ($1,000.00) per day until the breach is cured or ASI
is in compliance herewith.
24. NON-WAIVER OF BREACH
Failure of SNET at any time or from time to time, to enforce
or require the strict keeping and performance by ASI of any
of the terms and provisions of this Agreement shall not
constitute a waiver by SNET of a breach of any such terms or
provisions and shall not affect or impair such terms or
provisions in any way or the right of SNET at any time to
avail itself of rights or remedies as it may have at any
time. A waiver by SNET shall only be effective if such
waiver is in writing and executed by SNET.
25. ASSIGNMENT
(A) Any assignment of the service to be performed by ASI,
in whole or in part, or of any other interest hereunder
without written consent of SNET, except an assignment
confined solely to monies due or to become due shall be
void. It is expressly agreed that any such assignment of
monies shall be void to the extent that it attempts to
impose upon SNET obligations to the assignee additional to
the payment of such monies or to preclude SNET from dealing
solely and directly with ASI in all matters pertaining
hereto, including the negotiation of amendments or
settlements of amounts due.
(B) The foregoing shall not limit SNET's right to assign
this Agreement to any Company affiliated with SNET, which
right is expressly affirmed.
26. NOTICES
Any and all notices permitted or required to be given herein
shall be deemed duly given (1) upon actual delivery, if
delivery is by hand (2) upon receipt by the transmitting
party of confirmation or answer back if delivery is by telex
or telegram; or (3) upon delivery into the United States
mail if delivery is by postage paid registered or certified
return receipt requested mail. Each such notice shall be
sent to the respective party at the address indicated below
or to any other address as the respective party may
designate in writing delivered pursuant to this paragraph.
if to SNET, and of a legal nature, including price change:
The Southern New England Telephone Company
00 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
ATTN: Manager-Technical Procurement
if to SNET, and of an administrative nature:
The Southern New England Telephone Company
000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxxx 00000
ATTN: Xx. Xxxxx Xxxxxxx
if to ASI:
Analytical Surveys, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
ATTN: Xx. Xxxxxxx X. Xxxx
27. PUBLICITY
ASI shall not commercially use SNET's name without SNET's
express written consent. The foregoing shall not apply to
ASI's inclusion of SNET within a listing of ASI's clients.
28. SEVERABILITY
In the event that any one or more of the provisions
contained herein shall for any reason be held to be
unenforceable in any respect under the law of Connecticut or
the United States of America, such unenforceability shall
not affect any other provision of this Agreement; but this
Agreement shall then be construed as if such unenforceable
provision or provisions had never been contained herein.
29. SURVIVAL
The terms, provisions, representations, and warranties
contained herein shall survive delivery, payment, and
acceptance. This Agreement shall bind the parties hereto
and their legal representatives, successors, assigns, and
heirs (if ASI is a natural person).
30. MODIFICATION OF AGREEMENT
The whole Agreement between the parties hereto is stated
herein and may only be changed by amendment signed by both
parties or their duly authorized agents.
31. AFFILIATED COMPANIES
For the purpose of this Agreement, an Affiliate is (I) a
company owning all outstanding voting shares of SNET (such
company being hereinafter called the "Parent"): (ii) a
company owned by or whose majority of voting stock is owned
by the Parent; or (iii) a company owned by or whose majority
of voting stock is owned by SNET. SNET may from time to
time designate Affiliates to be eligible under this
Agreement or may withdraw any of those presently designated,
by a written notice to this effect, given to ASI thirty (30)
days in advance.
32. WAIVER
The waiver of strict compliance of any of the terms of this
contract or of any breach thereof on the part of SNET shall
not be held or deemed to be a waiver of any subsequent
failure to comply with or perform the same or any other term
or condition of this contract or of any breach thereof.
33. SNET STANDARDS OF CONDUCT
(A) ASI agrees to comply with Attachment E, SNET SUPPLIER
POLICY STATEMENT ON ETHICS, and SNET SUPPLIER STANDARDS OF
CONDUCT, which are attached hereto and incorporated herein
by reference.
(B) ASI shall comply with all applicable Federal, State,
County, and Local laws, regulations, and codes in the
performance of this Agreement.
34. NO EXCLUSIVE RIGHT
Nothing herein contained shall be construed as the grant of
any exclusive right by SNET to ASI, and nothing herein
contained shall be construed as a requirement that SNET
refer any account or accounts to ASI, but any referred
account shall be subject to all terms of this Agreement.
35. LAW GOVERNING
This Agreement is made in and shall be governed by the laws
of the State of Connecticut.
36. COMPLIANCE WITH LAWS
ASI agrees to comply with all applicable federal, state and
local laws and regulations in the performance of this
Agreement. Without in any way limiting the foregoing, ASI
agrees to comply with the Fair Labor Standards Act and
Occupational Safety and Health Act as amended as wall as
SNET's Equal Employment Opportunity Certificate which ASI
shall recertify upon SNET's request.
37. ENTIRE AGREEMENT
This contract including Attachments A through F, which are
incorporated by reference herein, constitute the entire
contract and Agreement between SNET and ASI. No
conversations, understandings or agreements varying,
extending or affecting in any way, the terms or provisions
of this contract shall be binding on either party unless
reduced to writing and duly executed by an authorized
representative of each party.
IN WITNESS WHEREOF, this contract is executed this 7th day
of September, 1995.
ANALYTICAL SURVEYS, INC.
BY /s/ Xxxxxxx X. Xxxx
ITS Senior Vice President
DATE August 23, 1995
THE SOUTHERN NEW ENGLAND TELEPHONE COMPANY
BY /s/ Xxxxxxxxx X. Xxxxxxxxx
ITS Vice President-Network Technology and CTO
DATE September 7, 1995
