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ThyssenKrupp Elevator - 2013 Agreement for OCHAGREEMENT FOR SERVICES This AGREEMENT made this 1 st day of January, 2013, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street Gilroy, California and CONTRACTOR: ThyssenKrupp Elevator, having a principal place of business at 2140 Zanker Road. San Jose, CA 95133. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on January 1, 2013 and will continue in effect through December 31. 2017 unless terminated in accordance with the provisions of Article 7 of this Agreement. ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONTRACTOR is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONTRACTOR or any employee or agent of CONTRACTOR. Both parties acknowledge that CONTRACTOR is not an employee for state or federal tax purposes. CONTRACTOR shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONTRACTOR shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONTRACTOR Specific Services CONTRACTOR agrees to: Perform the services as outlined in Exhibit "A" within the time periods described therein. Method of Performing Services CONTRACTOR shall determine the method, details and means of performing the above - described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONTRACTOR'S services. WDOLINGE811070812.1 101612 - 04706083 Employment of Assistants CONTRACTOR may, at the CONTRACTOR'S own expense, employ such assistants as CONTRACTOR deems necessary to perform the services required of CONTRACTOR by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONTRACTOR'S assistants in the performance of those services. CONTRACTOR assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. Place of Work CONTRACTOR shall perform the services required by this Agreement at any place or location and at such times as CONTRACTOR shall determine is necessary to properly and timely perform CONTRACTOR'S services. ARTICLE 4. COMPENSATION In consideration for the services to be performed by CONTRACTOR, CITY agrees to pay CONTRACTOR as provided for in Exhibit "B ", "Payment Schedule ". Invoices CONTRACTOR shall submit invoices for all services rendered. Payment Payment shall be due within thirty (30) days after receipt of invoice describing the work performed during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONTRACTOR of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. Expenses CONTRACTOR shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONTRACTOR, all fees, fines, licenses, bonds or taxes required of or imposed against CONTRACTOR and all other of CONTRACTOR'S costs of doing business. CITY shall not be responsible for any expenses incurred by CONTRACTOR in performing services for CITY. 1MDOLI N GER11070812.1 101612 - 04706083 -2- ARTICLE 5. OBLIGATIONS OF CONTRACTOR Tools and Instrumentalities CONTRACTOR shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONTRACTOR is not required to purchase or rent any tools, equipment or services from CITY. Licenses CONTRACTOR shall possess a State of California Contractor's license in the appropriate category for performing services under this Agreement. CONTRACTOR shall obtain a City of Gilroy Business License. Workers' Compensation CONTRACTOR agrees to provides workers' compensation insurance for CONTRACTOR'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives; agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising out of any injury, disability, or death of any of CONTRACTOR'S employees. Indemnification of Liability, Duty to Defend To the fullest extent permitted by law, CONTRACTOR shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission of CONTRACTOR or CONTRACTOR'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. Insurance In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance, including coverage for owned and non -owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. As a condition precedent to CITY'S obligations under this Agreement, CONTRACTOR shall furnish evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Commercial Liability insurance policy referred to in (a) immediately above) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. WDOLINGEM1070812.1 101612 -04706083 -3- Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONTRACTOR under this Agreement may be assigned or subcontracted by CONTRACTOR without the prior written consent of CITY. which CITY may withhold in its sole and absolute discretion. State and Federal Taxes As CONTRACTOR is not CITY'S employee, CONTRACTOR shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONTRACTOR acknowledges and agrees that: *CITY will not withhold FICA (Social Security) from CONTRACTOR'S payments; *CITY will not make state or federal unemployment insurance contributions on CONTRACTOR'S behalf, *CITY will not withhold state or federal income tax from payment to CONTRACTOR *CITY will not make disability insurance contributions on behalf of CONTRACTOR; *CITY will not obtain workers' compensation insurance on behalf of CONTRACTOR. ARTICLE 6. OBLIGATIONS OF CITY Cooperation of City CITY agrees to respond to all reasonable requests of CONTRACTOR and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONTRACTOR'S duties under this Agreement. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONTRACTOR. Such assignment shall not release CONTRACTOR from any of CONTRACTOR'S duties or obligations under this Agreement. events: ARTICLE 7. TERMINATION OF AGREEMENT Termination on Occurrence of Stated Events This Agreement shall terminate automatically on the occurrence of any of the following 1. Bankruptcy or insolvency of either party; 2. Sale of the business of either party; 3. Death of either party. 1MDOLINGER11070812.1 101612 - 04706083 0 Termination by City for Default of CONTRACTOR Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving written notification to CONTRACTOR. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. Not performing any of its services professionally and/or timely. 2. CONTRACTOR'S breach of any of its representations, warranties or covenants contained in this Agreement. CONTRACTOR shall be entitled to payment only for work satisfactorily completed through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit "B'' which have been fully, competently and timely rendered by CONTRACTOR. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONTRACTOR'S default in the performance of this Agreement or material breach by CONTRACTOR of any of its provisions, then in addition to any other rights and remedies CITY may have, CONTRACTOR shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONTRACTOR for the performance of that task pursuant to this Agreement. Termination for Failure to Make Agreed -Upon Payments Should CITY fail to pay CONTRACTOR all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONTRACTOR, at the CONTRACTOR'S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONTRACTOR to CITY. Transition After Termination Upon termination, CONTRACTOR shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONTRACTOR shall cease such work as soon as it is safe to do so. CONTRACTOR shall incur no further expenses in connection with this Agreement. CONTRACTOR shall promptly deliver to CITY all work done toward completion of its services, and shall act in such a manner as to facilitate any new CONTRACTOR'S assumption of duties. VMDOLINGE R11070812.1 101612 - 04706083 ARTICLE 8. GENERAL PROVISIONS Notices -5- Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to a party at the address appearing below such party's signature below, but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt: mailed notices will be deemed delivered as of three (3) days after mailing. Entire Agreement of the Parties This Agreement supersedes any and all prior agreements, either oral or written, between the parties hereto with respect to the rendering of services by CONTRACTOR for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by both parties. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. Americans With Disabilities Act of 1990 Throughout the term of this Agreement, the CONTRACTOR shall comply fully with all applicable provisions of the Americans With Disabilities Act of 1990 ( "the Act ") in its current form and as it may be amended from time to time. The Contractor shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONTRACTOR shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation attorneys' fees, that may arise out of any violations of the Act by the CONTRACTOR, its subcontractors, or the officers, employees, agents or representatives of either. Compliance With Laws The CONTRACTOR shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct WDOLINGEM1070812.1 101612 - 04706083 W of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin or ancestry of any employee, applicant for employment, or any potential subcontractor. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. 1MDOLINGER11070812.1 101612 - 04706083 -7- Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: CITY: T HYSSENKRUPP ELEVATOF, 00RPORA110iu CIT GILROY By: By: J (Print Name) (Print Name) (Title) Address for Notices: t� b H",r /& ffo r,✓ Via_ /yl,l' —=�' � �'% Social Security or Taxpayer Identification Number: &)> - />-I ) )-0 Contractor's License Number: y 1- o I') i 141E ATTACHED AM � MM 410. I is Hereby P.401 This Awe WDOLINGE811070812.1 101612 -04706083 Address for Notices: 7351 Rosanna Street Gilroy, CA 95020 Attn: City Administrator In Approved as to Form: ity Attorney EXHIBIT "A" I. SCOPE OF SERVICES Provide comprehensive elevator maintenance service for State elevator # 108531 located at Old City Hall, 7400 Monterey Street, Gilroy, CA 95020. Preventative Maintenance Program ThyssenKrupp Elevator will service your equipment described in this agreement on a regularly scheduled basis. These service visits will be performed during normal business working days and hours, which are defined as Monday through Friday, 8:00 AM to 4:30 PM (except scheduled holidays). All work performed before or after normal business working days and hours shall be considered "Overtime ". ThyssenKrupp Elevator will perform the following services: ❑ Examine your elevator equipment for optimum operation. The examination, lubrication and adjustment will cover the following components of the elevator system: • Control and landing positioning systems • Signal fixtures • Machines, drives, motors, governors, sheaves, and wire ropes • Power units, pumps, valves, and jacks • Car and hoistway door operating devices and door protection equipment • Loadweighers, car frames and platforms, and counterweights • Safety mechanisms • Lubricate equipment for smooth and efficient performance • Adjust elevator parts and components to maximize performance and safe operation Full Coverage Parts Repair and Replacement ThyssenKrupp Elevator will provide full coverage parts repair and /or replacement for all components worn due to normal wear. All replacement parts used in this equipment will be new or refurbished to meet the quality standards of ThyssenKrupp Elevator. ThyssenKrupp will relamp all signals as required (during regularly scheduled visits). Maintenance Control Program ThyssenKrupp Elevator performs service in accordance with our written Maintenance Control Program. This program meets or exceeds any and all requirements of ASME A 17.1 -2007 Code, Section 8.6. The Maintenance Control Program includes ThyssenKrupp Elevator's Maintenance Tasks & Records documentation which shall be used to record all work performed on the equipment and is provided with each controller. Monthly Fire Service Testing and Record Completion per ASME A 17.1 This Agreement includes monthly fire service testing and record completion in accordance with the American National Safety Code for Elevators and Escalators, ANSI A17.1 which is in effect in the jurisdiction in which the equipment is located at the time this agreement is executed. At the conclusion of each calendar year, the City assumes responsibility for maintaining long -term storage of such records. IL NOTICE TO PROCEED /COMPLETION OF SERVICE A. NOTICE TO PROCEED CONTRACTOR shall commence services upon delivery to CONTRACTOR of written Notice to Proceed. 1MDOLINGER11070812.1 101612 - 04706083 0 B. COMPLETION OF SERVICES When CITY determines that CONTRACTOR has satisfactorily completed all of the services defined under this Agreement.. CITY shall give CONTRACTOR written Notice of Final Acceptance, and CONTRACTOR shall not incur any further costs hereunder. CONTRACTOR may request this determination of completion when, in its opinion, it has satisfactorily completed all of the services under this Agreement, and if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONTRACTOR has not satisfactorily completed all of such services, CITY shall so inform CONTRACTOR within this two (2) week period. III. SCHEDULE Term. This agreement is effective for five (5) years starting January 1, 2013 IV. Inserted for Numbering Purposes Only. III. GENERAL PROVISIONS A. STANDARD OF WORKMANSHIP CONTRACTOR represents and warrants that it has the qualifications, skills and licenses necessary to perform the services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONTRACTOR'S representations and warranties regarding its skills, qualifications and licenses. CONTRACTOR shall perform such services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. B. RESPONSIBILITY OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy, and the coordination of the services furnished by it under this Agreement. The CITY'S review, acceptance or payment for any of the services required under this Agreement shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONTRACTOR shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONTRACTOR'S negligent performance of any of the services furnished under this Agreement. C. Inserted for Numbering Purposes Only D. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. E. Insert for Numbering Purposes Only. \MDOLINGER \1070812.1 101612 - 04706083 -10- I F. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. G. WAIVER. CONTRACTOR agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. H. AMENDMENTS. No alterations or changes to the terms of this Agreement shall be valid unless made in writing and signed by both parties hereto. L CONFLICT OF INTEREST. CONTRACTOR certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. J. CAPTIONS. The captions of the various sections, paragraphs and subparagraphs of this Agreement are for convenience only and shall not be considered nor referred to for resolving questions or interpretation. WDOLINGEM1070812.1 101612 -04706083 -11- EXHIBIT "B" PAYMENT SCHEDULE Payment of $195 per month for the first year shall be made quarterly. Annual Price Adjustments: The monthly price for this service may be adjusted annually upon mutual agreement of the amount. WDOLINGE811070812.1 101612 -04706083 -1- 1 � RE: CITY OF GILROY — OLD CITY HALL Page 1 of 1 0441F AMENDMENT NO. 1 This amendment shall be made part of this Agreement. In the event of conflict with other articles, terms, conditions, or contract documents, this Amendment No. 1 shall be final. Amend so that the attached ThyssenKrupp Elevator Gold Maintenance Agreement (7 pages) shall be incorporated into the Scope of Work for this agreement. Indemnification of Liability: ThyssenKrupp Elevator shall not indemnify for losses caused by others. In all cases involving the responsibility of more than one party, each party shall be liable in an amount proportionate to said parties share of negligence. Insurance: Amend so that the additional insured is defended and indemnified for actions arising from Contractor's acts, actions omissions or neglects; but is not defended or indemnified for its own acts, actions, omissions, neglects or bare allegations. Termination by City for Default by Contractor: Amend so that in the event of nonperformance on behalf of Contractor, City shall have the right to terminate this contract with thirty (30) days written notice, provided, however Contractor is given thirty (30) days to remedy nonperformance. CITY OF GILROY RE 12/20/12 THYSSENKRUPP ELEVATOR CORPORATION TK -44 -6942 California License #651371 Purchaser: City of Gilroy 7351 Rosanna St., Accounts Payable Gilroy, CA 95020 Hereinafter referred to as "Purchaser ", "you', and "your ". Location: Old City Hall 7400 Monterey Rd. Gilroy, CA 95020 By: ThyssenKrupp Elevator Corporation 2140 Zanker Rd. San Jose, CA 95133 Telephone: (408)660 -1501, (408)210 -0377 Fax: (866)774 -1915 E -Mail: dwayne .carpenter @thyssenkrupp.com Internet: www.thyssenkruppelevator.com Hereinafter referred to as "ThyssenKrupp Elevator Corporation ", "ThyssenKrupp Elevator', "we ", "us" and "our ". GOLD MAINTENANCE AGREEMENT ThyssenKrupp Elevator agrees to maintain Purchaser's elevator equipment described below in accordance with this agreement. We will endeavor to provide a comprehensive maintenance program designed to protect your investment and maximize the performance, safety, and life span of the elevator equipment to be maintained. Equipment To Be Maintained Building Name Unit Quantity Manufacturer Old Town City Hall 1 US Elevator Type of Unit Application of Unit Unit ID or Serial # Hydraulic Passenger 108531 ThyssenKrupp Elevator Americas Business Unit ': „:i► Preventative Maintenance Program We will service your equipment described in this agreement on a regularly scheduled basis. These service visits will be performed during normal business working days and hours, which are defined as Monday through Friday, 8:00 AM to 4:30 PM (except scheduled holidays). All work performed before or after normal business working days and hours shall be considered "Overtime ". ThyssenKrupp Elevator will perform the following services: • Examine your elevator equipment for optimum operation. Our examination, lubrication and adjustment will cover the following components of your elevator system: • Control and landing positioning systems • Signal fixtures • Machines, drives, motors, governors, sheaves, and wire ropes • Power units, pumps, valves, and jacks • Car and hoistway door operating devices and door protection equipment • Loadweighers, car frames and platforms, and counterweights • Safety mechanisms • Lubricate equipment for smooth and efficient performance • Adjust elevator parts and components to maximize performance and safe operation Full Coveraoe Parts Repair and Replacement ThyssenKrupp Elevator will provide full coverage parts repair and /or replacement for all components worn due to normal wear, unless specifically excluded in the "Items Not Covered" or "Other Conditions" provisions herein. We maintain a comprehensive parts inventory to support our field operations. All replacement parts used in your equipment will be new or refurbished to meet the quality standards of ThyssenKrupp Elevator. Most specialized parts are available within 24 hours, seven days a week. We will relamp all signals as required (during regularly scheduled visits). Maintenance Control Program ThyssenKrupp Elevator performs service in accordance with our written Maintenance Control Program. This program meets or exceeds any and all requirements of ASME A 17.1 -2007 Code, Section 8.6. The Maintenance Control Program Includes ThyssenKrupp Elevator's Maintenance Tasks & Records documentation which shall be used to record all work performed on the equipment and is provided with each controller. We do not perform any tests unless such tests are specifically listed as included elsewhere in this agreement. Quality Assurance To help increase elevator performance and decrease downtime, our technicians utilize the latest industry methods and technology available to us for your specific brand of elevator. They will be equipped with our tools, documentation and knowledge to troubleshoot your unique system, as well as access to a comprehensive parts replacement inventory system. Behind our technicians is a team devoted to elevator excellence. Technicians are supported around the clock by a team of engineers and field support experts. Our North American technical support facilities continuously research advancements in the industry and in your equipment. Also, our internal quality control program ensures optimum and reliable operation of your elevator equipment. To assure that quality standards are being maintained, we may conduct periodic field quality audit surveys. Your dedicated ThyssenKrupp Elevator representative will be available to discuss your elevator needs with you in all aspects of service and modernization. In addition, you may receive recommendations for upgrades that will also provide you with budget options designed to enhance the appearance, performance and safety of or meet Code requirements for your equipment over time. Service Requests during Normal Working Days and Hours Service requests are defined as any request for dispatch of our technician to the location of the equipment covered in this agreement from one or more of the following: you or your representative, the building or building's representative, emergency personnel, passengers through the elevator's communication device and /or from VISTA Remote Monitoring through the elevator's communication line. Service requests include minor adjustments and response to emergency entrapments that can be accomplished in two hours or less (excluding travel time) and do not include regularly scheduled maintenance visits. We will respond to service requests during normal business working days and hours, as defined above, at no additional charge Overtime Service Requests On all overtime service requests, you will be responsible for all labor costs including travel time, travel expenses, and time spent on the job. Such costs will be invoiced at our standard overtime billing rates. Overtime service requests are performed before or after normal business working days and hours. ❑ VIEW(R) (Check box if included) VIEW is ThyssenKrupp Elevator's customer oriented, online service activity reporting system. VIEW allows building owners and managers to monitor our maintenance and service call activity. VIEW can be accessed via the Internet any time, day or night. You can "VIEW' service tickets associated with a single elevator serviced under this agreement, for all the elevators at the location serviced under this agreement, or across an entire portfolio of elevator equipment that is serviced by ThyssenKrupp Elevator. Elevator Maintenance Agreement TK -44 -6942 California License #651371 TK GA 05/10 Page 2 of 7 ❑ VISTA® (Check box if included) VISTA Remote Monitoring is ThyssenKrupp Elevator's exclusive service for monitoring the status and performance of your elevator(s). VISTA monitors compatible equipment 24 hours per day, 7 days per week, and 365 days per year. Constantly monitoring performance data on your equipment provides ThyssenKrupp Elevator the ability to respond to operational irregularities quickly and more efficiently. With VISTA, we can often dispatch a service technician to your location before any interruption in elevator service occurs. Service visits based on VISTA data will be made during normal business hours on normal business days. ® SoundNet® (Check box if included) SoundNet is ThyssenKrupp Elevator's 24 -hour telephone monitoring and emergency call service. Our representatives are trained to handle elevator calls and they can assess the situation and quickly dispatch a technician when necessary. If needed, they can stay on the line to reassure a stranded passenger that help is on the way. SoundNet maintains digital recordings and computerized records of the time, date, and location of calls received and action taken for the benefit of passengers and building owners. Special considerations regarding SoundNet are set forth below. ❑ Periodic Safety Testing (Check box if included) ThyssenKrupp Elevator will test your equipment in accordance with those annual periodic testing requirements as outlined in the American National Safety Code for Elevators and Escalators, ANSI A 17.1, which are in effect at the time this agreement is executed. In the event that the state, city or local governing authority in which the equipment is located has adopted different requirements, ThyssenKrupp Elevator will test your equipment in accordance with those annual periodic testing requirements in effect at the time this agreement is executed. You agree to pay for any costs of the inspector and /or inspection fees. Product Information. You agree to provide ThyssenKrupp Elevator with current wiring diagrams that reflect all changes, parts catalogs, and maintenance instructions for the equipment covered by this agreement (exception: we will supply all of the above for new ThyssenKrupp elevators at no additional cost). You agree to authorize us to produce single copies of any programmable device(s) used in the equipment for the purpose of archival back -up of the software embodied therein. These items will remain your property. Safe . You agree to instruct or warn passengers in the proper use of the equipment and to keep the equipment under continued surveillance by competent personnel to detect irregularities between elevator examinations. You agree to immediately report any condition that may indicate the need for correction before the next regular examination. You agree to immediately shut down the equipment upon manifestation of any irregularities in either the operation or the appearance of the equipment, to immediately notify us, and to keep the equipment shut down until the completion of any repairs. You agree to give us immediate verbal notice and written notice within ten (10) days after any occurrence or accident in or about the elevator. You agree to provide our personnel with a safe place to work. You agree to provide a suitable machine room, including secured doors, waterproofing, lighting, ventilation, and appropriate air temperature control to maintain that room at a temperature between 50 °F and 90 °F. You also agree to maintain the elevator pit in a dry condition at all times. Should water or other liquids become present, you will contract with others for removal and the proper handling of such liquids. We reserve the right to discontinue work in the building whenever, in our sole opinion, our personnel do not have a safe place to work. You also agree that if ThyssenKrupp Elevator's inspection of a piece of equipment serviced under this agreement reveals an operational problem which, in ThyssenKrupp Elevator's sole judgment, jeopardizes the safety of the riding public, ThyssenKrupp Elevator may shut down the equipment until such time as the operational problem is resolved. In that event, ThyssenKrupp Elevator will immediately advise you in writing of such action, the reason for such action, and whether any proposed solution is covered by the terms of this agreement. Other. You agree not to permit others to make alterations, additions, adjustments, or repairs or replace any component or part of the equipment during the term of this agreement. You agree to accept our judgment as to the means and methods employed by us for any corrective work under this agreement. Since ThyssenKrupp Elevator's top priority is the satisfaction of its customers, if you should have any concern(s) with the means and methods used to maintain or repair the equipment covered under this agreement, you agree to provide us with written notice of that concern and give us thirty (30) days to respond either in writing or commence action to appropriately resolve it. In the event of the sale, lease or other transfer of the ownership or management of the premises in which the elevator(s) or equipment described herein are located, you agree to see that such transferee is made aware of this agreement and agrees to assume and /or be bound by the conditions hereof for the balance of the unexpired term of this agreement. Should the transferee fail to assume this agreement, you shall remain liable for all unpaid amounts, including those owed for the balance of the current unexpired term of this agreement. In consideration of ThyssenKrupp Elevator performing the services herein specified, you expressly agree to indemnify, defend, save harmless, discharge, release and forever acquit ThyssenKrupp Elevator Corporation, our employees, officers, agents, affiliates, and subsidiaries from and against any and all claims, demands, suits, and proceedings brought against ThyssenKrupp Elevator, our employees, officers, agents, affiliates and subsidiaries for loss, property damage (including damage to the equipment which is the subject matter of this agreement), personal injury or death that are alleged to have been caused by the Purchaser or any others in connection with the presence, use, misuse, maintenance, installation, removal, manufacture, design, operation or condition of the equipment covered by this agreement, or the associated areas surrounding such equipment. Your duty to indemnify does not apply to the extent that the loss, property damage (including damage to the equipment which is the subject matter of this agreement), personal injury or death is determined to be caused by or resulting from the negligence of ThyssenKrupp Elevator and /or our employees. You recognize that your obligation to ThyssenKrupp Elevator under this clause includes payment of all attorney's fees, court costs, judgments, settlements, interest and any other expenses of litigation arising out of such claims or lawsuits. Insurance. You expressly agree to name ThyssenKrupp Elevator Corporation along with its officers, agents, affiliates and subsidiaries as additional insureds in your liability and any excess (umbrella) liability insurance policy(ies). Such insurance must insure ThyssenKrupp Elevator Corporation, along with its officers, agents, affiliates and subsidiaries for those claims and /or losses referenced in the above paragraph, and for claims and /or or losses arising from the sole negligence or responsibility of ThyssenKrupp Elevator Corporation and /or its officers, agents, affiliates and subsidiaries. Such insurance must specify that its coverage is primary and non - contributory. You hereby waive the right of subrogation. Elevator Maintenance Agreement TK -44 -6942 California License #651371 TK GA 05/10 Page 3 of 7 Items Not Covered. We do not cover cosmetic, construction, or ancillary components of the elevator system, including the finishing, repairing, or replacement of the cab enclosure, ceiling frames, panels, and /or fixtures, holstway door panels, door frames, swing door hinges and closing devices, sills, car flooring, floor covering, lighting fixtures, ceiling light bulbs and tubes, main line power switches, breaker(s), feeders to controller, below ground or unexposed hydraulic elevator system, including but not limited to, jack cylinder, piston, PVC or other protective material; below ground or unexposed piping, alignment of elevator guide rails, smoke and fire sensors, fire service reports, all communication and entertainment devices, security systems not installed by us, batteries for emergency lighting and emergency lowering, air conditioners, heaters, ventilation fans, pit pumps and all other items as set forth and excluded in this agreement. Other Conditions. With the passage of time, equipment technology and designs will change. If any part or component of your equipment covered under this agreement cannot, In our sole opinion, be safely repaired and is no longer stocked and readily available from either the original equipment manufacturer or an aftermarket source, that part or component shall be considered obsolete. You will be responsible for all charges associated with replacing that obsolete part or component as well as all charges required to ensure that the remainder of the equipment is functionally compatible with that replacement part or component. In addition, we will not be required to make any changes or recommendations in the existing design or function of the unit(s) nor will we be obligated to install new attachments or parts upon the equipment as recommended or directed by insurance companies, governmental agencies or authorities, or any other third party. Moreover, we shall not be obligated to service, renew, replace and /or repair the equipment due to any one or more of the following: anyone's abuse, misuse and /or vandalism of the equipment; anyone's negligence in connection with the use or operation of the equipment; any loss of power, power fluctuations, power failure, or power surges that in any way affect the operation of the equipment; fire, smoke, explosions, water, storms, wind, lightening; acts of civil or military authorities, strikes, lockouts, other labor disputes, theft, riot, civil commotion, war, malicious mischief, acts of God, or any other reason or cause beyond our control that affects the use or operation of the equipment. You expressly agree to release and discharge us and our employees for any and all claims and /or losses (including personal injury, death and property damage, specifically including damage to the property which is the subject matter of this agreement) associated therewith or caused thereby. ThyssenKrupp Elevator shall also automatically receive an extension of time commensurate with any delay in performance caused by or related to the aforementioned and you expressly agree to release and discharge ThyssenKrupp Elevator from any and all claims for consequential, special or indirect damages arising out of the performance of this agreement. In no event shall ThyssenKrupp Elevator's liability for damages arising out of this agreement exceed the remaining unpaid installments of the current, unexpired term of this agreement. Should your system require any of the safety tests on the commencement date of this agreement, ThyssenKrupp Elevator assumes no responsibility for the day -to -day operation of the governor or safeties on traction elevators, or the hydraulic system on hydraulic elevators under the terms of this agreement until the test has been completed and the equipment passed. Should the respective system fail any of those tests, it shall be your sole responsibility to make necessary repairs and place the equipment in a condition that we deem acceptable for further coverage under the terms of this agreement. We shall not be liable for any damage to the building structure or the elevator resulting from the performance of any safety tests we perform at any time under this agreement. If during the Initial firefighter's service test, that feature is found to be inoperable, you shall be responsible for all costs associated with necessary repair(s) to bring the elevator(s) into compliance with the applicable elevator codes in your local jurisdiction. In the event a third party is retained to enforce, construe or defend any of the terms and conditions of this agreement or to collect any monies due hereunder, either with or without litigation, the prevailing parry shall be entitled to recover all costs and reasonable attorney's fees. You hereby waive trial by jury. You agree that this agreement shall be construed and enforced in accordance with the laws of the state where the equipment is located. You consent to jurisdiction of the courts, both state and Federal, of the state in which the equipment is located as to all matters and disputes arising out of this agreement. In the event any portion of this agreement is deemed invalid or unenforceable by a court of law, public policy or statute, such finding shall not affect the validity or enforceability of any other portion of this agreement. Our rights under this agreement shall be cumulative and our failure to exercise any rights given hereunder shall not operate to forfeit or waive any of said rights and any extension, indulgence or change by us in the method, mode or manner of payment or any of its other rights shall not be construed as a waiver of any of its rights under this agreement. Price. The price for the services as stated in this agreement shall be One Hundred Ninety -Five dollars ($ 195.00) per month, excluding taxes, payable quarterly in advance. Term. This agreement is effective for five (5) years starting October 05, 2012 and is non - cancelable. To ensure continuous service, this agreement will be automatically renewed for successive five (5) year periods, unless either party timely serves written notice upon the other parry of its intention to cancel at least ninety (90) days but not more than 120 days before the end of the Initial five (5) year period, or at least ninety (90) days but not more than 120 days before the end of any subsequent five (5) year renewal period. Notice shall be sent by certified mail, return receipt requested to the address set forth on page 1 of this agreement. Time Is of the essence. Annual Price Adiustments. Since our costs to provide you with the service set forth in this agreement may increase, we reserve the right to adjust the price of our service under this agreement accordingly. In the event this occurs, we will adjust your monthly price based on the percentage change in the average rate paid to elevator examiners. This rate paid to elevator examiners consists of the hourly rate paid to examiners plus fringe benefits and union welfare granted in place of or in addition to the hourly rate. Fringe benefits include pensions, vacations, paid holidays, group insurance, sickness and accident insurance, and hospital insurance. We also reserve the right to make additional adjustment to the price of our service under this agreement and /or enact surcharges as needed to account for increased fuel prices when such increases exceed the Consumer Price Index (CPI) current rate. We also reserve the exclusive right to make additional adjustment to the price of our service under this agreement in the event that the equipment covered by this agreement is modified from its present state. Early Payment Discount. You may elect to pay in advance for twelve (12) months of service described in this agreement. Such a pre- payment entitles you to a 3% discount from the annual price in effect at the time of payment. Elevator Maintenance Agreement TK -44 -6942 California License #651371 TK GA 05/10 Page 4 of 7 l Overdue Invoices. A service charge of 11h% per month, or the highest legal rate, whichever is more, shall apply to all overdue accounts you have with ThyssenKrupp Elevator that are in any way related to your equipment described in this agreement. If you do not pay any sum due to ThyssenKrupp Elevator related to your equipment described in this agreement; regardless of whether it is billed pursuant to this agreement or any other with us, within sixty (60) days from the billing date, we may also choose to do one or more of the following: 1) suspend all service until all amounts due have been paid in full, and /or 2) declare all sums for the unexpired term of this agreement due immediately as liquidated damages and terminate our obligations under this agreement. If ThyssenKrupp Elevator elects to suspend service, we shall not be responsible for personal injury, death, damage to property (including damage to the equipment that is the subject matter of this agreement) or losses of any other type or kind that is in any way related the ThyssenKrupp Elevator's suspension of service. Upon resumption of service, you will be responsible for payment to ThyssenKrupp Elevator for all costs we incur that result from our suspension of service and to remedy any damage caused to your equipment during that time. Time is of the essence. Acceptance. Your acceptance of this agreement and its approval by an authorized manager of ThyssenKrupp Elevator will constitute exclusively and entirely the agreement for the services herein described. All other prior representations or agreements, whether written or verbal, will be deemed to be merged herein and no other changes in or additions to this agreement will be recognized unless made in writing and properly executed by both parties. Should your acceptance be in the form of a purchase order or other similar document, the provisions of this agreement will govern, even in the event of a conflict. This proposal is hereby accepted in its entirety and shall constitute the entire agreement as contemplated by you and us. This proposal is submitted for acceptance within one - hundred twenty (120) days from the Date Submitted by the ThyssenKrupp Elevator representative indicated below. No agent or employee shall have the authority to waive or modify any of the terms of this agreement without the prior written approval of an authorized ThyssenKrupp Elevator manager. ThyssenKrupp Elevator Corporation: City of Gilroy ThyssenKrupp Elevator Corporation Approval: By: By: By: (Signature of ThyssenKrupp Elevator Representative) (Signature of Authorized Individual) (Signature of Authorized Individual) Andy Ferris Dwayne Carpenter (Print or Type Name) (Print or Type Name) Account Manager Branch Manager (408)660 -1501 (Print or Type Title) (Print or Type Title) October 06, 2012 (Date Submitted) (Date of Approval) (Date of Approval) Special Considerations SoundNet® Through its SoundNet communication center, ThyssenKrupp Elevator will provide 24 -hour telephone monitoring on all elevator(s) maintained under the monitoring agreement, provided such elevators are equipped with operational telephone equipment capable of placing a call to SounclNet's call center. SoundNet will receive incoming emergency telephone calls from the elevator(s) and forward same to Purchaser's designated emergency contacts. It shall be Purchaser's responsibility to submit an executed Contact Data Sheet (attached as Exhibit 1 hereto) to enable this service, and to advise ThyssenKrupp Elevator immediately in writing of any changes to the emergency contacts during the term of service. Purchaser understands that no revision to emergency contacts will be made without ThyssenKrupp Elevator first receiving such request in writing. SoundNet service does not include maintenance service for Customer's telephone equipment. Customer retains possession and control of its telephone equipment and is responsible for ensuring uninterrupted operation of the telephones so that they are capable of placing a call to SoundNet's call center. SoundNet service cannot be provided without a telephone located within the elevator(s) described in this agreement that has the calling capability described above. ThyssenKrupp Elevator shall not be held responsible or liable for any claim, injury, delay, death or detention of loss of life, or loss of property resulting from telephone equipment failure, false alarms or interruption of telephone service or inaccurate data set forth in any related executed Contact Data Sheet. We do not assume any duty or responsibility to advise any caller to take or not take any specific action resulting from an emergency, perceived emergency or of any equipment. Elevator Maintenance Agreement TK GA 05/10 any other situation including, but not limited to, entrapment of persons, evacuation, repair or return to service TK -44 -6942 California License #651371 Page 5 of 7 If SoundNet is unable to reach Customer's designated emergency contacts, a service technician may be dispatched to the site at Purchaser's expense in accordance with ThyssenKrupp Elevator's applicable billing rates. Purchaser agrees that it is within the reasonable discretion of SoundNet service call representatives to dispatch a mechanic or contact emergency personnel if Customer's designated emergency contacts are unavailable. Customer agrees to pay all charges for services provided by any person, organization or municipality contacted as a result of any emergency or perceived emergency call. Monthly Fire Service Testing and Record Completion per ASME A 17.1 This Agreement includes monthly fire service testing and record completion in accordance with the American National Safety Code for Elevators and Escalators, ANSI A17.1 which is in effect in the jurisdiction in which the equipment is located at the time this agreement is executed. At the conclusion of each calendar year, Purchaser assumes responsibility for maintaining long -term storage of such records. Elevator Maintenance Agreement TK -44 -6942 California License #651371 TK GA 05/10 Page 6 of 7 4 e ' r, Complete Building Information This City of Gilroy ThyssenKrupp Elevator Corporation Approval: Old City Y Hall data is By: forthe 7400 Monterey Rd. building (Signature of ThyssenKrupp Elevator Representative) located Gilroy, CA 95020 at: Total No of Elevators in Building: Exhibit 1— Contact Data Sheet Complete Billing Information Company Bill To Name: Billing Address: City, State, Zip: Attn Line: I Elevator # I Elevator Telephone Number including Area Code I 1. 2. 3. 4. BNTERNAL E,DNEY) Elevator: Branch: Service: Contract: Elevator # Elevator Telephone Number including Area Code In the event of an emergency, or perceived emergency, one or more of the tollowing are to be primary Nurchaser contacts: Contact Name I Title I Primary Telephone # I Secondary Telephone # anyone at the above listed numbers, SoundNet nas the express company listed below. Elevator Service Company: ThyssenKrupp Elevator Phone Number: (408)392 -0910 service In the event of an Emergency or perceived emergency, SoundNet has the express permission to contact one or more of the following (911 is not sufficient, local phone numbers are required): Police Department: Fire Department: Special instructions /remarks: It is the responsibility of Purchaser to immediately advise SoundNet in writing of any changes to the contacts or numbers listed on this Contact Data Sheet. Purchaser agrees to pay all charges for services incurred by any person, organization or municipality as a result of any emergency or perceived emergency call. It is also expressly understood that SoundNet does not have and does not assume any duty or responsibility for any person or entity that fails to respond to any emergency or perceived emergency situation. ThyssenKrupp Elevator Corporation: City of Gilroy ThyssenKrupp Elevator Corporation Approval: By: By: By: (Signature of ThyssenKrupp Elevator Representative) (Signature of Authorized Individual) (Signature of Authorized Individual) Andy Ferris Dwayne Carpenter (Print or Type Name) (Print or Type Name) Account Manager Branch Manager (408)660 -1501 (Print or Type Title) (Print or Type Title) October 06, 2012 (Date Submitted) (Date of Approval) (Date of Approval) Elevator Maintenance Agreement TK -44 -6942 California License #651371 TK GA 05110 Page 7 of 7