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ThyssenKrupp Elevator - Old City Hall Dumbwaiter Repair (2019)DocuSign Envelope ID: 91FAED89-5107-4FCA-Al3B6-F9E66F9BBBCE AGREEMENT FOR SERVICES (For contracts over $5,000 —NON-DESIGN, NON -ENGINEERING TYPE CONTRACTOR) This AGREEMENT made this 15th day of January, 2019, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONTRACTOR: ThvssenKruvv Elevator Com_ oration_ , having a principal place of business at 2140 Zanker Road San Jose, CA 95131 ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on August 1, 2019, and will continue in effect through August 1, 2020 with an extension of one year at a time for a period up to 1 year at City's sole option to be exercised by written notice to be given by City not less than thirty (30) days nor more than sixty (60) days prior to August 1, 2020, unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement �sh�,�4 terminate this Agreement regardless of any other provision stated herein. Initial 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 A. Specific Services CONTRACTOR agrees to: Perform Provisions") and Exhibit "B" ("Scope Exhibit "C" ("Milestone Schedule"). 4835-2267-0361v1 LAM04706083 the services as outlined in Exhibit "A" ("Specific of Services'), within the time periods described in —ice kommm- %�c B. 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. C. 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. D. 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 A. Consideration In consideration for the services to be performed by CONTRACTOR, CITY agrees to pay CONTRACTOR the amounts set forth in Exhibit "D'.' ("Payment Schedule"). In no event however shall the total compensation paid to CONTRACTOR exceed $21,500.00. B. Invoices CONTRACTOR shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit "D". No payment will be made unless CONTRACTOR has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit "A", Section M incurred 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. 4835-2267-03610 -2_ LAC104706083 D. 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, except for those expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONTRACTOR A. 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. B. Workers' Compensation CONTRACTOR agrees to provide 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 reasonable attorneys' fees, arising out of any injury, disability, or death of any of CONTRACTOR'S employees. C. Indemnification of Liability, Duty to Defend As to all liability, 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. D. 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 on a per occurrence basis, 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 written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. 4835-2267-0361v1 -3- LAC104706083 E. 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. F. 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. G. Prevailing Wage CONTRACTOR agrees and acknowledges that it is its obligation to determine whether, and to what extent, any work performed is or any workers employed relative to any construction to be performed under this Agreement are subject to any Codes, Ordinances, Resolutions, Rules and other Regulations and established policies of CITY and the laws of the State of California and the United States, including, without limitation, the California Labor Code and Public Contract Code relating to public contracting and prevailing wage requirements ("Prevailing Wage Laws"). To the extent Prevailing Wage Laws apply to work performed or workers employed for the purpose of performing work under this Agreement, CONTRACTOR shall fully comply with and ensure that all workers and/or subcontractors are informed of and comply with all Prevailing Wage Laws and specifically any applicable requirement of California Labor Code Sections 1720 et seq. and 1770 et seq. and the regulations thereunder, which require the payment of prevailing wage rates based on labor classification, as determined by the State of California, and the performance of other requirements on certain "public works" or "maintenance" projects. It is the duty of CONTRACTOR to post a copy of applicable prevailing wages at the job site. Prevailing wage information may be obtained at www.dir.ca.aov. 4835-2267-03610 _q _ LAM04706083 ARTICLE 6. OBLIGATIONS OF CITY A. 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. B. 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. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONTRACTOR's Business/ Death of CONTRACTOR CONTRACTOR shall notify CITY of the proposed sale of CONTRACTOR's business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONTRACTOR set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONTRACTOR is an individual, this Agreement shall be deemed automatically terminated upon death of CONTRACTOR. B. 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. CONTRACTOR'S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 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 completed in accordance with the terms of this Agreement 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 U 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 4835-2267-03610 _5_ LAM04706083 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. C. 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. D. 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 the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONTRACTOR's duties by any new CONTRACTOR hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. The modification, signed by both parties, and attached to this Agreement as Exhibit E, is hereby incorporated by reference and made a part of this Agreement. B. 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. 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 reasonable 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. 4835-2267-0361v1 _6_ LAM04706083 C. 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. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. 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 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, ancestry of any employee, applicant for employment, or any potential subcontractor. F. 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. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether 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. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. 4835-2267-03610 _7_ LAC104706083 H. 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. I. Notices 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 the parties at the addresses appearing in Exhibit "A", Section V.H. 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. J. 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. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. L. 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. 4835-2267-0361v1 LAC104706083 DocuSign Envelope ID: 286DD508-OB88-4582-A74C-D3D8E5EA6B72 Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: CITY: ThyssenKrupp Elevator CITY OF GILROY �DocuSigned 6y: By. Name: GrLag-�a�e��sze... Title: sales Manager Social Security or Taxpayer Identification Number (G^%- By: Name: Girum Awoke Title: Public Works Director Approved as to Form ATTEST: City Attorney City Clerk 4835-2267-0361v1 LAC104706083 Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: ThyssenKrupp Elevator By• Na �6ro g M J/,17 es S Title:, — Social Security or Taxpayer Identification Number Approved as to Form City Attorney 4835-2267-03610 _9_ LAM04706083 CITY: CITY OF GILROY By: N e`:'Girum Awoke Title: Public Works Director ATTE Clerk Executed at Gilroy, California, on the date and year first above written, CONTRACTOR: CITY: ThyssenKrupp Elevator CITY OF GILROY By- By: Name N e: Girum Awoke Title: _(a/� s d `i6i�2� (? r- Title: Public Works Director Social Security or Taxpayer Identification Number Approved as to Form ATTEST: City Attorney 4835-2267-0361v1 _9 LAC104706083 City Clerk DocuSign Envelope ID: 286DD508-OB88-4582-A74C-D3D8E5EA6B72 Executed at Gilroy, California. on the date and year first above written. CONTRACTOR: ThyssenKrupp Elevator DocuSigned by: By: l,lipp�css Name: Gr WAPPMes"s Title: sales Manager Social Security or Taxpayer Identification Number Approved as to Form City Attorn y 4835-2267-0361v1 LACk04706083 -9- CITY: CITY OF GILROY By: Name: Girum Awoke Title: Public Works Director ATTEST: City Clerk EXHIBIT "A" SPECIFIC PROVISIONS PROJECT MANAGER CONTRACTOR shall provide the services indicated on the attached Exhibit "B", Scope of Services ("Services"). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONTRACTOR agrees to assign :Mason who will act in the capacity of Project Manager, and who will personally direct such ServicJ. Except as may be specified elsewhere in this Agreement, CONTRACTOR shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED/COMPLETION OF SERVICE A. NOTICE TO PROCEED CONTRACTOR shall commence the Services upon delivery to CONTRACTOR of a written "Notice to Proceed", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Walter Dunckel shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONTRACTOR or if otherwise delivered as provided in the Section V.H. ("Notices") of this Exhibit "A". B. COMPLETION OF SERVICES When CITY determines that CONTRACTOR has completed all of the Services in accordance with the terms of 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 completed all of the Services as required by the terms of 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 completed all of such Services as required by this Agreement, CITY shall so inform CONTRACTOR within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "C". IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. 4835-2267-0361v1 -1 _ LAC104706083 Direct expenses are charges and fees not included in Exhibit "B". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONTRACTOR shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER 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. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well -organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. 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. CONTRACTOR shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY'S review, acceptance or payment for any of the Services 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. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONTRACTOR for the purpose of verifying any and all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years (from the date of final payment to CONTRACTOR), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONTRACTOR, all of which shall be made available to CITY at the CITY's offices within five (5) business days after CITY's request. 4835-2267-0361v1 -2- LAM04706083 D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONTRACTOR and all other written and oral information developed or received by or for CONTRACTOR and all other written and oral information submitted to CONTRACTOR in connection with the performance of this Agreement shall be held confidential by CONTRACTOR and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONTRACTOR'S disclosure thereof) shall be deemed confidential. CONTRACTOR shall not use CITY'S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. 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. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONTRACTOR may retain and use copies thereof subject to Section V.D of this Exhibit "A". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONTRACTOR shall not be responsible for, and City shall indemnify CONTRACTOR from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. 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. 4835-2267-0361 v1 _3 LAC104706083 H. NOTICES. Notices are to be sent as follows: CITY: Walter Dunckel City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONTRACTOR: ThvssenKrunn Elevator Co%oration 2140 Zanker Road San Jose, CA 95131 I. FEDERAL FUNDING REQUIREMENTS. ❑ If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. ® If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. DBE Program CONTRACTOR shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City -adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONTRACTOR warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 4835-2267-03610 _4_ LAM04706083 EXHIBIT "B" SCOPE OF SERVICES Contractor to remove and dispose of existing obsolete dumbwaiter head unit and cable. Thyssenkrupp repair crew remove existing obsolete dumbwaiter head unit and cable and will install of new machine cable and deflector sheave for the unit unit located at 7400 Monterey St. Gilroy CA. Dumbwaiter shall conform to the following: (a) Dumbwaiter having a rated load of more than 75 pounds shall be suspended by steel wire ropes or chains having a factor of safety of not less than 4.5. 3079 (i) (4) (A) Additionally, the specific condition in need of compliance is noted above. The numbers following the listed item refers to the section of the California Code of Regulations (Title 8), or the Labor Code (L.C.) of the State of California. 4835-2267-0361v1 LAD04706083 EXHIBIT "C" MILESTONE SCHEDULE NIA 4835-2267-0361v1 LAC104706083 EXHIBIT "D" PAYMENT SCHEDULE Total contract amount not to exceed $21,500. The Contractor shall submit invoicing for $10,214.50 (50%) down payment, upon commencement of this contract. The down payment shall be paid in advance and applied toward parts and materials for said project. The remainder of contract amount to be invoiced and paid upon completion of this specific job thru the end of contract. 4835-2267-03610 LAC104706083 EXHIBIT E ;MODIFICATION TO AGREEMENT FOR SERVICES BETWEEN CITY OF GILROY AND, THYSSENKRUPP ELEVATOR CORPORATION, WHEREAS, the City of Gilroy, a municipal corporation ("CITY"), and ThyssenKrupp Elevator Corporation ("CONTRACTOR") have entered into negotiations regarding the agreement entitled Agreement for Services between City of Gilroy and ThyssenKrupp Elevator Corporation, hereinafter referred to as the "Original Agreement"; and WHEREAS, CITY has agreed to modify certain terms of the Original Agreement by CONTRACTOR's request, prior to execution. NOW THEREFORE, in consideration of the foregoing recitals, and the covenants and conditions contained herein, the Parties hereto agree as follows: 1. Article 5 ("OBLIGATIONS OF CONTRACTOR"), Section B ("Worker's Compensation") of the Original Agreement shall be modified to read as follows: "CONTRACTOR agrees to provide 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 reasonable attorney's fee, arising out of any injury, disability, or death of any of CONTRACTOR's employees, except that in no event shall CONTRACTOR be liable for the alleged or actual acts, actions, omissions, neglect, or willful misconduct of other parties not under CONTRACTOR's direct control, nor shall CONTRACTOR be liable for any penalties, or indirect, special, liquidated, incidental, exemplary, or consequential damages. 2. Article 5 ("OBLIGATIONS OF CONTRACTOR"), Section C ("Indemnification of Liability, Duty to Defend") of the Original Agreement shall be modified to read as follows: As to all liability, to the fullest extent permitted by law, CONTRACTOR shall defend, indemnify, and hold harmless, through counsel approved by CITY (which approval shall not be unreasonably withheld), CITY, its officers, officials, representatives, agents, and employees, against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities, and expenses, including attorneys' fees, that arise out of, pertain to, or relate to any alleged or actual acts, actions, omissions, neglect or willful misconduct of CONTRACTOR or CONTRACTOR's officers, assistants, subcontractors, employees, or agents in connection with performance of CONTRACTOR's services under this Agreement, including, without limitation, all claims related to the failure to pay wages, the injury or death of any person, or damage to any property, except that in no event shall CONTRACTOR be liable for the alleged or actual acts, actions, omissions, neglect, or willful misconduct of other parties not under CONTRACTOR's direct control, nor shall CONTRACTOR be liable for any penalties, or indirect, special, liquidated, incidental, exemplary, or consequential damages. 3. Article 5 ("OBLIGATIONS OF CONTRACTOR"), Section D ("Insurance") of the Original Agreement shall be modified to read as follows: 4819-3764-4458v2 CCHU104706083 "In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout this Agreement: (a) Commercial General Liability Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles, but not including Professional Liability Insurance, 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 to the extent such damages are determined to be caused by any acts, actions, omissions, neglect or willful misconduct of CONTRACTOR or CONTRACTOR's officers, assistants, subcontractors, employees, or agents, but not to the extent such damages are determined to be caused by the CITY's acts, actions, omissions, neglect or willful misconduct. As a condition precedent to CITY's obligations under this Agreement, CONTRACTOR shall furnish written evidence of such coverage (naming CITY, its officers, officials, representatives, agents, and employees as additional insureds on the Commercial General Liability Insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms." 4. The ThyssenKrupp Elevator Corporation Repair Work Order number ACIA-1LAWJKI dated July 9, 2019, in its form as attached, shall be made a part of this Agreement. In the event there is a conflict between the terms of this Work Order and any of the terms of this Agreement, the terms of this Agreement shall control. 5. This Modification to the Original Agreement shall be effective on the Effective Date of the Original Agreement. 6. The modifications herein shall be made a part of the Original Agreement. Except as expressly modified herein, all of the provisions of the Original Agreement shall remain in full force and effect. In the case of any inconsistencies between the Original Agreement and this Modification, the terms of this Modification to the Original Agreement shall control. 7. This Modification to the Original Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the dates set forth besides their signatures below. CITY OF GILROY THYSSENKVPP ELEVATOR CORP. By: By:� [signature] �gnature] -��' ...,1 �".. �;,.. �� � i��M /�7c� 1✓c ��' �► l 1 [employee name] [name] VugtAe wanxs D4Azpr Sa eS an c [title/department] [title] Date: Date: Z'L 4819-3764-4458v2 -2- CCHU104706083 "In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout this Agreement: (a) Commercial General Liability Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles, but not including Professional Liability Insurance, 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 to the extent such damages are determined to be caused by any acts, actions, omissions, neglect or willful misconduct of CONTRACTOR or CONTRACTOR's officers, assistants, subcontractors, employees, or agents, but not to the extent such damages are determined to be caused by the CITY's acts, actions, omissions, neglect or willful misconduct. As a condition precedent to CITY's obligations under this Agreement, CONTRACTOR shall furnish written evidence of such coverage (naming CITY, its officers, officials, representatives, agents, and employees as additional insureds on the Commercial General Liability Insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms." 4. The ThyssenKrupp Elevator Corporation Repair Work Order number ACIA-1 LAWJKI dated July 9, 2019, in its form as attached, shall be made a part of this Agreement. In the event there is a conflict between the terms of this Work Order and any of the terms of this Agreement, the terms of this Agreement shall control. 5. This Modification to the Original Agreement shall be effective on the Effective Date of the Original Agreement. 6. The modifications herein shall be made a part of the Original Agreement. Except as expressly modified herein, all of the provisions of the Original Agreement shall remain in full force and effect. In the case of any inconsistencies between the Original Agreement and this Modification, the terms of this Modification to the Original Agreement shall control. 7. This Modification to the Original Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the dates set forth besides their signatures below. CITY OF GILROY THYSSEN PP ELEVATOR CORP. By: By: [signatt r11 l,�/ /J2P-Si nature] �A -brivi-Gen,zale� €a lewlv1 11W,:r 1_C (�/P q I1 / I d7 [employce name] ("/ U [name] .Q-ty-Adrnrnistrat©t' q1)W G LAd)(f Ngt-nil v - fG �� 0,A ayt' [title/departtnent] [tide Date: Date: 4819-3764-4458v2 -2- CCHU104706083 DocuSign Envelope ID: 286DD508-OB88-4582-A74C-D3D8E5EA6B72 Approved as to Form - City Attorney �J 4819-3764-4458v2 _3 CCHU104706083 Repair Work Order thyssenkrupp OLD CITY HALL GILROY July09, 2019 Purchaser: City Of Gilroy Location: OLD CITY HALL GILROY Address: 7351 Rosanna St Address: 7400 Monterey St Gilroy, CA 95020-6141 Gilroy, CA 95020-5824 Purchaser authorizes thyssenkrupp Elevator Corporation (referred to as "thyssenkrupp Elevator" hereafter) to perform the following work on the equipment and at the location described above, in exchange for the sum of Twenty Thousand Four Hundred Twenty Nine Dollars ($20,429.00) inclusive of all applicable sales and use taxes pursuant to the terms and conditions contained in this Work Order (the "Work Order"). Summary: Elevator Description Repair category modification1 Head unit . • .. . In the event you have any questions regarding the content of this Proposal please contact me at +1 408 6601507 We appreciate your consideration. Regards, Celia Cecena thyssenkrupp Elevator Corporation 2140 Zanker Rd San Jose CA 95131 celia.cecena@thyssenkrupp.com I+1 408 6601507 Notice: No permits or inspections by others are included in this work, unless otherwise indicated herein. Delivery and shipping is included. All work is to be performed during regular working days and hours as defined in this Work Order unless otherwise indicated herein. 2019-2-715731 I ACIA-1LAWJKI I July 09, 2019 Repair Work order thyssenkrupp Scope of Work thyssenkrupp repair crew remove existing obsolete dumbwaiter head unit and cable and will install of new machine cable and deflector sheave for the unit unit located at 7400 Monterey St. Gilroy CA. (End Scope of Work) 2019-2-715731 1 ACIA-ILAWJKI I July 09, 2019 Repair Work Order Terms and Conditions thyssenkrupp Elevator does not assume any responsibility for any part of the vertical transportation equipment other than the specific components that are described in this Work Order and then only to the extent thyssenkrupp Elevator has performed the work described above. No work, service, examination or liability on the part of thyssenkrupp Elevator is intended, implied or included other than the work specifically described above. It is agreed that thyssenkrupp Elevator does not assume possession or control of any part of the vertical transportation equipment and that such remains Purchaser's exclusively as the owner, lessor, lessee, possessor, or manager thereof. Unless otherwise stated herein, thyssenkrupp Elevator's performance of this Work Order is expressly contingent upon Purchaser securing permission or priority as required by all applicable governmental agencies and paying for any and all applicable permits or other similar documents. It is agreed that thyssenkrupp Elevator's personnel shall be given a safe place in which to work. thyssenkrupp Elevator reserves the right to discontinue its work in the location above whenever, in its sole opinion, thyssenkrupp Elevator believes that any aspect of the location is in any way unsafe until such time as Purchaser has demonstrated, at its sole expense, that it has appropriately remedied the unsafe condition to thyssenkrupp Elevator's satisfaction. Unless otherwise agreed, it is understood that the work described above will be performed during regular working days and hours which are defined as Monday through Friday, 8:00 AM to 4:30 PM (except scheduled union holidays). If overtime is mutually agreed upon, an additional charge at thyssenkrupp Elevator's usual rates for such work shall be added to the price of this Work Order. In consideration of thyssenkrupp Elevator performing the work described above Purchaser, to the fullest extent permitted by law, expressly agrees to indemnify, defend, save harmless, discharge, release and forever acquit thyssenkrupp Elevator, its employees, officers, agents, affiliates, and subsidiaries from and against any and all claims, demands, suits, and proceedings made or brought against thyssenkrupp Elevator, its employees, officers, agents, affiliates and subsidiaries for loss, property damage (including damage to the equipment which is the subject matter of this Work Order), personal injury or death that are alleged to have been caused by Purchaser or any others in connection with the presence, use, misuse, maintenance, installation, removal, manufacture, design, operation or condition of the vertical transportation equipment that is the subject of this Work Order, or the associated areas surrounding such equipment. Purchaser's 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 Work Order), personal injury or death is determined to be caused by or resulting from the negligence of thyssenkrupp Elevator and/or its employees. Purchaser recognizes, however, that its obligation to defend thyssenkrupp Elevator and its employees, officers, agents, affiliates and subsidiaries under this clause is broader and distinct from its duty to indemnify and specifically includes payment of all attorney's fees, court costs, interest and any other expenses of litigation arising out of such claims or lawsuits. 2019-2-715731 1 ACIA-1LAWJKI I July 09, 2019 thyssenkrupp Elevator shall not be liable for any loss, damage or delay caused by acts of government, labor, troubles, strikes, lockouts, fire, explosions, theft, riot, civil commotion, war, malicious mischief, acts of God, or any cause beyond its control. thyssenkrupp Elevator Corporation shall automatically receive an extension of time commensurate with any delay regarding the work called for in this Work Order. Should loss of or damage to thyssenkrupp Elevator's material, tools or work occur at the location that is the subject of this Work Order, Purchaser shall compensate thyssenkrupp Elevator therefor, unless such loss or damage results solely from thyssenkrupp Elevator's own acts or omissions. If any drawings, illustrations or descriptive matter are furnished with this Work Order, they are approximate and are submitted only to show the general style and arrangement of equipment being offered. Work Order. Purchaser shall bear all cost(s) for any reinspection of thyssenkrupp Elevator's work due to items outside the scope of this Work Order or for any inspection arising from the work of other trades requiring the assistance of thyssenkrupp Elevator. Purchaser expressly agrees to waive any and all claims for consequential, special or indirect damages arising out of the performance of this Work Order and specifically releases thyssenkrupp Elevator from any and all such claims. A service charge of 1.5% per month, or the highest legal rate, whichever is less, shall apply to delinquent accounts. In the event of any default of any of the payment provisions herein, Purchaser agrees to pay, in addition to any defaulted amount, any attorney fees, court costs and all other expenses, fees and costs incurred by thyssenkrupp Elevator in connection with the collection of that defaulted amount. Purchaser agrees that this Work Order shall be construed and enforced in accordance with the laws of the state where the vertical transportation equipment that is the subject of this Work Order is located and consents to jurisdiction of the courts, both state and Federal, of that as to all matters and disputes arising out of this Work Order. Puke"^^^• further agFees to waive trial by juFy for a" such matteFs and disputes-. The rights of thyssenkrupp Elevator under this Work Order shall be cumulative and the failure on the part of the thyssenkrupp Elevator to exercise any rights given hereunder shall not operate to forfeit or waive any of said rights and any extension, indulgence or change by thyssenkrupp Elevator 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 Work Order. In the event any portion of this Work Order is deemed invalid or unenforceable by a court of law, such finding shall not affect the validity or enforceability of any other portion of this Work Order. This Work Order shall be considered as having been drafted jointly by Purchaser and thyssenkrupp Elevator and shall not be construed or interpreted against either Purchaser or thyssenkrupp Elevator by reason of either Purchaser or thyssenkrupp Elevator's role in drafting same. Repair Work Order thyssenkrupp be merged heFein, and no E)theF ehanges On ef additions te this Werk Order will be reeegnized unless made in wfWR@ and preperly exeeuted by both pai4ies. No agent eF empleyee ef thyssenkrupp ElevateF shall have the autheFi" EI� at a► a ,tl ;-t#ysseel�p Te indeeate aeEeptaRee ef this wE)Fl( ardeF, please sign and retum ene (1) MqliRal of this agFeement to the address shown belew. Upen reeeipt of your written autherization and required materials and/er supplies, we shall implement the ._edi-wed im in. *kn 1' e 9 dew (Signatume of AuthOOZed Individual) WalterkeI Wease eeataA 2019-2-715731 1 ACIA-1LAWJKI I July 09. 2019 Bw (Signature of O. eh Representative) Key Beaevaa NTA SCHEDULING AND PRODUCTION Please Remit To REQUEST FOR PAYMENT Attn: Walter Dunkel thyssenkrupp Elevator Corporation PO Box 3796 Carol Stream, IL 60132-3796 D..Reference ID Customer Reference # / Terms •O July 09, 2019 Immediate ACIA-1LAWJKI Total Contract Price: $20,429.00 Down Payment: (50%) $10,214.50 For inquiries regarding your contract or services provided by thyssenkrupp Elevator, please contact your local account manager at +1 408 6601507. To make a payment by phone, please call 908-603-4541 with the reference information provided below. Current and former service customers can now pay online at: httos://secure.bilitrust.com/thvssenkrunoelevator/io/one-time-oavment Thank you for choosing thyssenkrupp Elevator. We appreciate your business. ---------------------------------------------------------- Customer Name: City Of Gilroy Remit To: Location Name: OLD CITY HALL GILROY thyssenkrupp Elevator Customer Number: 139560 Corporation PO Box 3796 Quote Number: 2019-2-715731 Carol Stream, IL 60132-3796 Reference ID: ACIA-1LAWJKI Remittance Amount: $10,214 2019-2-715731 1 ACIA-1LAWJKI I July 09, 2019