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HomeMy WebLinkAboutSyserco - Agreement for Maintenance and Service for HVACAGREEMENT FOR SERVICES (For contracts over $5,000) This AGREEMENT made this 4th day of October, 2013, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONTRACTOR: Syserco, Inc., having a principal place of business at 215 Fourier Avenue, Fremont, CA 94539. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on October 15, 2013 and will continue in effect through June 30, 2016 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 A. Specific Services CONTRACTOR agrees to: Perform the services as outlined in Exhibit "A" ( "Specific Provisions ") and Exhibit "B" ( "Scope of Services "), within the time periods described in Exhibit "C" ( "Milestone Schedule "). 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. \MDOLINGER \1070823.1 -1- 101712- 04706083 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 $13,189 for year 1, $13,717 for year 2, and $14,265 for year . 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. 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 NDOLINGER11070823.1 -2- 101712 -04706083 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 1. As to professional 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, to the extent arising or resulting directly or indirectly from any willful or negligent acts, errors or omissions 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. 2. As to other 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: 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, 1MDOLINGER11070823.1 -3- 101712- 04706083 CONTRACTOR shall furnish evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to immediately above) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. 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. 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. WDOLINGEM1070823.1 -4- 101712- 04706083 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 C" 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. 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. WDOLINGEM1070823.1 -5- 101712- 04706083 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. 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. 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 1MDOLINGER11070823.1 -6- 101712- 04706083 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. 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. WDOLINGEM1070823.1 -%- 101712- 04706083 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. Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: SYSERCO, INC. By: 0-ad' III& Name: MaJdKAI Title: Presiden Social Security or Taxpayer Identification Number 94- 2209546 Approved as to Form " k. g-(2c� City Attorney WDOLINGEM1070823.1 -8- 101712- 04706083 CITY: 9 F GILROY By: Name: Thomas J. flaglund Title: City Administrator EXHIBIT "A" SPECIFIC PROVISIONS I. 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 Anthony Khaymovich, who will act in the capacity of Project Manager, and who will personally direct such Services. 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, Rick Brandini, Facilities Superintendent 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 ". WDOLINGEM1070823.1 -1- 101712- 04706083 IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. 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 1MDOLINGER11070823.1 -2- 101712- 04706083 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. 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. 1MDOLINGER11070823.1 -3- 101712- 04706083 H. NOTICES. Notices are to be sent as follows: CITY: Rick Brandin, Facilities Superintendent City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONTRACTOR: Jennifer Rose, Service Account Manager Syserco, Inc. 215 Fourier Avenue Fremont, CA 94539 L 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.J. 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.J. 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. IMDOLINGER11070823.1 -4- 101712- 04706083 EXHIBIT "B" SCOPE OF SERVICES Annual Preventive maintenance service, owner directed support, and technical support for Alerton Controls for Heating, Ventilation, and Air Conditioning (HVAC) systems at Gilroy City Hall (7351 Rosanna Street, Gilroy, CA 95020) and Gilroy Police Department (7301 Hanna Street, Gilroy, CA 95020) per pages 1 through 14 of the Proposal dated December 20, 2012, and specifically excluding pages 15 and 16 of the Proposal notwithstanding any terms and conditions stated on page 14 of the Proposal." 1MDOLINGER11070823.1 101712 - 04706083 EXHIBIT "C" MILESTONE SCHEDULE This Agreement for Services is for three years as follows: Year 1 (July 1, 2013 — June 30, 2014) Year 2 (July 1, 2014 — June 30, 2015) Year 3 (July 1, 2015 — June 30, 2016) \MDOLINGER \1070823.1 -1- 101712- 04706083 EXHIBIT "D" PAYMENT SCHEDULE Payment to be made quarterly in advance. Annual contract amounts are as follows: Year 1 (July 1, 2013 — June 30, 2014): $13,189.00 Year 2 (July 1, 2014 — June 30, 2015): $13,717.00 Year 3 (July 1, 2015 — June 30, 2016): $14,265.00 WDOLINGEM1070823.1 101712 - 04706083 City of Gilroy Police Department and City Hall Building Automation Service Agreement Service Solutions for your Alerton System SYS E RCO AN ENERGY MANAGEMENT COMPANY And Presented to: Rick Brandini Presented by: Jennifer Rose Presentation Date: December 2012 'SYSE KC- C� Table of Contents: Executive Summar> Proaosed Solution: System Support Services 4 Customer Support Services 7 Energy & Sustainability Support 7 Software Obsolescence Protection Support Services 8 Consulting 1 Training Support Services 9 Repair and Replacement Services 10 Emergency Response Support Services 10 Service Delivery and Discount's 11 Project Team 12 Quality Assurance 13 Agreement Signature Page 14 Terms and Conditions 15 Appendix A - List of Maintained'Equipment 17 Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 2 of 17 SYSERQ; Executive Summary: With a population of over 52,000 in the 2010 census, and spanning over 15.9 square miles the.City „of Gilroy is best known as the "Garlic Capital of the World,” and home of the annual Garlic Festival each July. The City is also known for its peaceful residential environment, award- winning parks, golf course and recreation programs, and for its "urban forest," for which the City has won Tree City USA awards annually since 1979. To control and monitor the complex mechanical systems that ensure product quality, and,tenant comfort & safety, City of Gilroy has installed a state of the art Alerton Building Automation System at the City Hall & the Police Department. The a 104,920 square foot police station complex includes 46,270 square feet for the main building, 3,650 square foot custodial facility within an on -grade 55,000 square foot parking structure. This significant investment of over.$200,000 in controls; monitors and alarms all aspects of the facility's operation. The purpose of this proposal is to provide City of Gilroy a flexible program .that will provide the short -and long -term support needed to insure your facility operates at peak efficiency with minimum downtime.. This Service Agreement has been customized to meet your Facility's unique requirements as discussed with Rick Brandini. The major components of this program include: ✓ Annual Preventive Maintenance Routines ✓ Annual On Site Owner Direct_ ed Support ✓ Technical. Support ' Specifically the implementation of this program will accomplish the following: ✓ Increased Protection of Critical Monitored Product ✓ Reduced System Downtime ✓ Protection of Equipment ✓ Increased Operator Efficiency As part of our partnership with City of Gilroy, it is our goal to provide you with an optimum control system and energy management solution. Syserco looks forward to working with City of Gilroy and to providing you the support and training necessary to help you maintain and operate this facility at peak efficiency. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 3 of 17 ASYS E RAC Proposed Solution: The implementation plan for your Service Agreement will include the following services to be provided, on the equipment contained within'CITY of GILROY Facility. Svstem Support Services: Preventative Maintenance is a critical component to protecting your'significant investment and to ensure that your facility operates at peak efficiency with minimum downtime. The Preventative Maintenance routines as defined within this section shall be executed on AN ANNUAL basis by Syserco's trained professionals to ensure that your Alerton Automation System operates at the highest availability. The preventative maintenance routines noted below are included within this agreement. ®, Disaster Recovery: The electronic information stored within your system represents a significant part of your investment. In the event of a catastrophic system failure, these backups allow us to completely restore your system to the last backup state. During each Preventative Maintenance visit,, Syserco will perform a full system backup. Two copies of this backup will be made. One will be maintained onsite at your facility and the second archived at our offsite data storage facility. ® Preventative Maintenance Reports and Recommendations: Upon completion of each PM routine, a written report and presentation of findings /recommendations will be provided to the appropriate Facilities personnel by Syserco's Service Account Engineer. ® Preventative Maintenance Routines: The following preventative maintenance routines will be performed on a quarterly basis as part of our standard service. Review Site Log: • Each Preventative. Maintenance routine begins with a review of your site log so that ongoing issues can be noted and the root cause addressed. Perform System Analysis of Server (Mainframe Servers): • Execute SCANDISK for Server. This utility checks your hard -drive for errors. File fragments and other errors may cause your system to intermittently "crash" or run at less than peak performance. • Execute DEFRAG for Server. This utility in conjunction with SCANDISK will defragment your hard drive. A fragmented hard drive may cause your system to intermittently "crash" or run at less than peak performance, Review Network Workstations / Communication: • Verify Communication with all Remote Sites • Review BACtalk system for CRITICAL and OFF -LINE status indicators. • Review BACtalk system for OVERRIDE and DISABLED status. indicators. Verify Device Communication: • All Global Controller and VLC /TUX communication status is reviewed. • Any issues are noted and recommendations made. Perform a Battery Check of all Global Controllers: • Fully charged Batteries are key to maintaining the volatile RAM in your global controllers in the event of a power failure and /or brownout. Battery levels shall be checked and documented in BCMs and VLX Controllers. Controllers needing' battery replacement shall be identified to owner's representative. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 4 of 17 SYSE RCC3 Proposed Solution: Perform Memory Analysis of all Global Controllers: • Each Global Controller shall be diagnosed to ensure adequate memory is available to'perform trending, alarming and other system tasks. • A panel that is low on memory will experience intermittent problems, slow speed of response, may -lose data and may experience "command" issues. • Any panels that are low on memory will be noted along with recommendations to remediate the issue.' Review Global Controllers Operation: • Accurate and reliable operation of the Global Controllers is key to the successful operation of your facility. , • ROC File, Version is verified against most recent version and known system issues. • The DDC Program is;verified to be running. • System Date/Time settings are verified. • Daylight Savings settings are verified. Review Event Log • Unusual events will be noted. • The technician will make recommendations to address issues causing events. Review System for Operator Overrides: • Reports will be run to check for points in Operator Override. • Points in operator override cause the system to not run in "Automatic ". mode and may compromise system function, lead / lag logic, and /or energy conservation strategies. • The technician will make a list of all points in Operator Override along with recommendations to address root cause. Review Alarm Log: • Points generating excessive alarms will be noted. • The technician will make recommendations to address root cause hardware or software issues causing alarms. Review System for Failed Points: • Screens will be run reviewed for failed points. • Failed points may be indicators of equipment / device's needing'repair or of a significant database issue. • The technician will make recommendations to address failed points. Perform General System Operational Review:, • While onsite and performing the above Preventative Maintenance routines the Service Technician will review the system as a whole from the Graphic Workstation and ensure the Alerton control system is operating as desired. • Items such as graphics, system response time, operation of DDC Programs and device /equipment operation will be noted. • Any discrepancies or areas of concern will be noted. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 5 of 17 SYSELQ+ Proposed Solution: Other Support Services available for your system. ❑ Network Analysis: A properly functioning network is critical to the correct operation of the system. ❑ Central Plant — VLCNLX Operational Verification: The central cooling and heating equipment represent a significant portion of your facility's energy use. By performing operational reviews you will have a high degree of assurance that your central equipment is operating at peak efficiency, increasing mechanical system up- time and reducing energy, consumption. ❑ AHU /ACU — VLCNLX Operational Verification: Air Handlers are a critical component of the HVAC System responsible for a significant portion of your facility's energy use. By performing operational reviews you will have a high degree of assurance that your central equipment is operating at peak efficiency, increasing mechanical system up -time and reducing energy consumption. ❑ VAV/Terminal Device — VLC Operational Verification: The majority of your facility's energy use occurs at the terminal device level. By performing reviews of the entire system's Terminal Device operation accurate temperature and pressure control is ensured, the indoor environment is maintained according to specifications and energy usage is significantly decreased. ❑ Calibration Services: Calibration of critical sensors is crucial to maintaining the energy efficiency and accurate operation of your, facility. By regularly calibrating these, selected instruments you will reduce unexpected downtime and realize significant energy savings. ❑ Rotating Control Loop Tuning:; Sele'd6d control loops will be reviewed against historical trend -logs to ensure hunting and overshoot,are minimized and the process variables are within specified tolerances. F-1 Enhanced Server Maintenance: The execution of enhanced server maintenance provides additional assurance that this critical piece pf�h,ardware and its associated operating system is functioning properly. ❑ Enhanced Remote Monitoring and Response Services: • BMS Monitoring - Syserco shall monitor the function and operation of the Alerton Energy Management System through daily remote, access. of the system providing critical alarm monitoring via client a machine located in Syserco's Call Center. • Prepare Trend Reports - 'Syserco shall provide and deliver a monthly master trend report to include system operational data for specialized systems. • Receive and Respond to Critical Alarms - Syserco shall monitor system operation of your system and will then provide remote technical' troubleshooting support to resolve alarms issues on a time and material basis at our discounted labor rates. Should an alarm require on site attention to resolve, we shall dispatch . a service specialist to address'and repair the system upon authorization from your team. • Report Monitoring Observations - Syserco shall provide a monthly summary overview of our findings from the BMS Monitoring, 'Critical Alarms and Responses to Alarms, and Trendlogs and deliver these to your facility Team for review and action. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 6 of 17 SYS E Rya'' Proposed Solution: Customer Support Services: Syserco's Customer Supporti Services assist you and your staff in running your facility more efficiently and in fully utilizing the power of.your Alerton Building Automation System. ® Site Log: Syserco will provide you with a Site -Log for documentation of concerns, system problems, and other related items requiring our attention. Each scheduled service visit shall begin with'a review of this log so that our technicians are aware of items needing immediate attention. ® Operator Support, and Coaching: Provides a vehicle for our system experts to W0A with your staff to ensure that your operators are properly utilizing the Alerton control system to maximize energy savings and comfort.. Syserco will provide ONE (1) day(s) per year of pre- scheduled Operator Support to assist your staff in modifying the system, identifying, verifying' and resolving issues found and /or providing supplemental training. This pre- allocated time allows you to control your operating budget while meeting your facility's changing needs, Suggestions for this scope depending upon owners explicit needs may be: • " Site Specifc'Training • ' Program Modifications • Implementation of Advanced Strategies • Graphics Modifications • Hardware Changes • Minor'Control System Modifications • OtheriOwner- Directed Services Energy and Su'stainability Support Services ® Energy Benchmarking: To assist your staff in meeting the requirements of Energy Reduction, Syserco will provide an Energy review of your facility using the Department of Energy. ® Energy Efficiency Consulting / Implementation: Through this energy efficiency review and discussion, Syserco will help your facility to identify options to reduce the utility costs related to running your facility. Syserco Inc. - . 44244 Fremont Blvd., Fremont, CA 94538 - (510498-1171 - CL #483939 I - Page 7 of 17 SS E RC Proposed -Solution: Software Support Services ® Software Support Services: Alerton, continually enhances the Envision .Graphical User Interface to match the changing needs of industry, to incorporate the newest control theories and to make it easier for you to optimize your facility's performance. Syserco's Software Support Services provide more than software updates, they also include the;deployment of updated software that incorporates all issues and bug fixes that affect your system. Syserco's Software Support Services provide more than software updates; they also include the deployment of updated software that incorporates,,all issues and bug fixes that affect your system. Syserco's Software Support Services provide you the benefit and security.of knowing that your system is keeping current with the latest software releases from Alerton and maintaining compatibility with the ever changing IT standards. These annual upgrades provide you:,an ' incremental approach to ensure that your core operating system tracks any modifications Microsoft' makes to, their core operating systems.. S Note: 1. Operating System and /or ServeNPC Hardware upgrades are not included by Syserco. Minimum recommended Server configurations required : 2.33GHz Quad Vore,. 6 GB RAM, 25OGB Hard Drive.; (Syserco can provide a new computer meeting the required operator system;specifications as a separate scope of work at your request.) 2. Owner to return old software key upon completion of upgrade. 3. Software Upgrade covers re visions within the same key size and same software product line. We will provide you annual software and documentation updates forthe following existing system software: • 1 Envision Servers. • No Envision Clients. ® Global Controller Firmware Support Services: As the Envision product line is enhanced, modifications are often made to the Firmware to provide faster speed of response, greater flexibility and new applications. Firmware Support Services ensure that "all'., Global Controller ROC files are the latest release; have- all issues /bug fixes incorporated and align with the requirements of the Envision Graphical User Interface. • We will provide you annual ROC file updates for the Global Controllers identified in Appendix A, List of Maintained Equipment. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 8 of 17 SYSE KQ; Proposed Solution: Training Services At Syserco, we believe in empowering our customers with the knowledge and skills to fully leverage the power of the Alerton BACtalk control system. A core component of this is to provide the training and support necessary. to assist building owners in becoming self - sufficient in the maintenance, operation, programming and configuration of their Alerton Building Automation'System. To accomplish this goal of empowering our customers, Syserco provides customized', support and training programs to,our Alerton BACtalk users. These programs range from customized support agreements, to onsite training, to Web -based training, to formal operator classes held at a local training facility in San Leandro and options to take more advanced engineering classes at Alerton Headquarters in Seattle, WA. For those building`'owners who wish to design and engineer their own systems, Syserco and Alerton provide the option for comprehensive training that is identical to the training our technicians and engineers receive, culminating in receiving the. designation "Certified BACtalk Engineer" Syserco believes-that a customer who is empowered to knowledgably operate the Alerton EMS will become a more successful, partner With Syserco as we support the customer's longterm facility needs, goals and priorities. .As part of ou 'partnership with City of GILROY, we shall provide make available at discounted cost the following training, options: ❑ Formal Factory Training: Syserco offers our customers the opportunity to attend formal factory- certified classroom training to ensure, that your staff is fully proficient in utilizing your significant investment in.�Alerton Technology. This training is, provided at the Alerton Corporate training facility' in Redmond, WA. You have the option to select any training class from the Training directory. This proposal includes X (X) seats in the following courses: • Envision for BACtalk Operator Course • BACtalk Systems Engineering & Commissioning Lab Course (E- Learning Prerequisite) • BACtalk Systems DDC Programming Course (Prerequisite) ❑ Formal Local Classroom Training: Syserco offers our customers the opportunity to attend local, formal classroom training to ensure. that your staff is fully proficient in utilizing your significant investment in Alerton Technology. This training is provided at our local training facility in San Leandro. This proposal includes X (X) seats in the following courses: • Envision for BACtalk Operator Course ❑ E- Learning Training: Syserco and Alerton offer Online Courses that focus on the operator's role in a, BACtalk System by introducing the BACtalk System hardware and Envision for BACtalk software. This course consists of online modules that the student accesses at their own pace. Each module typically runs from 10 -20 minutes each. Students are introduced to the hardware architecture and hierarchy of the BACtalk system. Simulating ,real life scenarios, students configure and edit features of Envision for BACtalk and learn to maximize the potential use of the Alerton System. This proposal includes X (X) courses of the following: • Envision for BACtalk Operator Course Online course • Engineering & Commissioning an Alerton Control System ❑ Onsite Training: Through delivery of individualized Onsite Training Classes we will introduce, review and reinforce the skills ofyour staff resulting in better utilization of the Energy Management System installed in'your facility. Classes will be customized to meet the specific needs of your operators and your facility. This proposal includes X (X) one day classes. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - , (510) 498 -1171 - CL #483939 - Page 9 of 17 SYSEKQ; Proposed Solution: System Coverage Support Options (Repair and Replacement Services) To help you control and plan your operating budget, Syserco provides the option for extended Repair-and Replacement Coverage on all your Building Automation components and sensors. The option you have selected is checked below. ® T &M System Coverage: • Response to system failures will be on a Time and Materials basis at the preferred Service _ Agreement'rates. • Coverage window and response times are as per the coverage selected under "Emergency Response Services ". • All Labor is performed on a Time and Materials basis. • All Material replacement is performed on a Time and Materials basis. Emergency Response Support Services: ® Technical Support / Online Response: Syserco provides our Service Agreement customers with access to a Service Response Center staffed with Factory — Trained Alerton, Service Technicians during Normal Working Days between the hours of 7 AM and 4 PM. This service provides you with a direct line to skilled technicians who can provide you' immediate assistance in analyzing, problems 'and recommend ing'solutions via telephone, modem or Internet connection to your facility. This service often eliminates the need for costly emergency onsite visits, saving you time and money. (This agreement includes online response to assist with emergencies and troubleshooting based upon historicall usage for this and similar facilities. In the event usage exceeds historical norms, Syserco reserves the right to adjust.pricing. to reflect actual usage.) • The direct phone number for the Service Response Center is (877) 360 -3637 Priority Response Time: Asa Service, Agreement customer, you will be ;given priority for "emergency' calls over non Service Agreement customers. The ,guaranteed response time -you have selected is identified below. ® Standard Emergency Coverage: To reduce the costs and disruptions of system issues, we will provide Emergency Response within the following windows: • Response window 7 AM to 4 PM regular Business Days. • Online /Phone response within .4 hours. • If an emergency site visit is required, we will be onsite by:the Next Business Day for calls received prior to 1 PM. Non - emergency issues as determined by your staff and ours, will be scheduled for the next available business day. Labor and materials for all Emergency onsite response that occurs outside of normally scheduled service visits will be billed at your discounted.T &M rate as opposed to the higher Non- Service Agreement customer rates. Syserco Inc. - 44244 Fremont Blvd., . Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 10 of 17 SYS E RCfl Service Delivery and Discounts: At Syserco, we are focused on providing the highest levels of customer service and support. To achieve this, we have implemented a multi- tiered approach to service and quality assurance to ensure we deliver on this goal. Dedicated Service Team: Syserco assigns a dedicated team to manage your complete service experience. This team consists of an Account Manager, a Service Account Engineer and at least two technicians. This dedicated Factory — Trained Service Team not only knows Alerton systems, but they know your site and its standards. Because of this knowledge we can quickly diagnose and solve control problems, thus saving hours of labor that would be required by someone less familiar with your Alerton system. Quality Assurance: To ensure that our services are of the highest quality, Syserco utilizes a structured Quality Assurance and Customer Satisfaction System. Our team will meet with you on a regular basis to discuss our performance and your satisfaction with the services provided. These regular meetings are augmented with a formal "Customer Satisfaction Score Card" where you are given a chance to give direct feedback on the service you are provided. Service Work -Order Documentation: All scheduled service visits include complete documentation of the services provided, findings of the technician and recommendations for improvement. Unscheduled service visits (T &M or Emergency response) will be documented by a work order form detailing the services performed, materials used and hours spent, Documentation Library: Syserco maintains a master document library that includes information on your system configuration, hardware installation, sequences of operations and system software. This information is available to our technicians for use in responding to questions and service requests. Discount on Labor: As a Service Agreement customer you are entitled to a 20% discount off of our standard non service agreement Time & Material labor rates. These hourly rates apply to work beyond the scope of your Service Agreement, including system modifications, emergency response, additional training, etc. Labor rates are published and revised annually. 2012 T &M Rates (No Service Agreement): Trade Straight Time Overtime Double Time Service Technician $174 $261 $330 Service Account Engineer $190 $285 $361 Sr. Automation Engineer $200 $300 $380 2012 T &M Rates Service Agreement. 20% Discount): Trade Straight Time Overtime Double Time Service Technician $139 $208 $264 Service Account Engineer $152 $228 $288 Sr. Automation Engineer $160 $240 $304 Discount on Material: As a service contract customer you will receive a 60% discount off the Alerton published list price schedule for parts and software sales and a 55% discount off the Belimo list price schedule. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 11 of 17 SYSERQV Project Team.: A major benefit of a Syserco Service Agreement derives from having our Factory- Trained Alerton professionals familiar with your facility and its systems. The.Service Team assigned to your facility are specialists in maintaining and troubleshooting your significant investment. This team includes an Account Manager, a Service Account Engineer and Primary and Secondary Service Technicians. The following team will be dedicated to providing services within your facility. Jennifer Rose / Howard Giles Account Manager: Your Account Manager works with you and your team to identify your strategic business objectives and craft custom solutions to help you meet them. She works with the Syserco Service Team to ensure service is provided in accordance with this contract and that it continues to meet your needs: Annually, the Account Manager will conduct a formal review of this agreement with your staff to discuss the services performed during the past year, to recommend improvements and options to enhance system performance, resolve operational problems, and modify our offerings as necessary to meet your changing needs and objectives. Anthony Khaymovich — Service Account Engineer: The Service Account Engineer is directly responsible for the delivery of your service agreement content. They are a technical resource who understands the nuances of working at your site, schedules the technicians and works with you and your staff on incremental system / facility improvements and upgrades. The Service Account Engineer is responsible to ensure! service is provided in accordance with this contract and to continually consult with you and your staff regarding your objectives. Primary Service Technician: Your Primary Service Technician is a Factory Trained Alerton Technician: They are made familiar with your site, its systems and its procedures. They are assigned to execute,,your Preventative Maintenance Routines,'Operator Coaching and other contracted services. Secondary Service Technician: To ensure depth of coverage, Syserco assigns a Secondary Technician who is cross - trained by the Primary Technician in the intricacies of your site. In the event your Primary Service Technician is unavailable to provide scheduled service due to sickness, vacation, etc. the'Secondary Technician acts as a backup to provid'e'you seamless, continuous!coverage. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 12 of 17 SYS E RC5 Quality Assurance: The entire Syserco Team is focused on delivering the highest quality Systems and Services to our customers. To help us measure our ability to meet your requirements and to provide concrete feedback on our performance, the following are the agreed -upon performance criteria that will be used to determine if we are meeting your expectations. Measurements will be taken on an annual basis. Customer Satisfaction Score Card Example: 5 = Extremely Satisfied 4 = Satisfied 3 = Neutral 2 = Unsatisfied 1 = Extremely* Unsatisfied Please select a minimum of three criteria in which Syserco's performance will be evaluated for this Service Agreement Circle your answer 1) 1 2 3 4 5 ?) 1 2 3 4 5 3j 1 2 3 4' 5 4) Overall, how satisfied are you with Syserco's ability to meet your needs and expectations on this service agreement? 1 2 3 4 5 Additional Comments: Syserco Employee Name Customer Name Date Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 Page 13 of 17 c Signature Page / Pricing Summary: By and Between: Syserco, Inc 44244 Fremont Blvd Fremont, CA 94538 City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 -6197 SYS E RCO Syserco shall provide the services as outlined in the attached proposal dated December 20, 2012 and the attached Terms and Conditions. Services shall be provided at: Police Department and City Hall The proposed pricing for these features is based upon a three year program, billed quarterly in advance. This agreement shall remain in effect for an original term of three (3) years beginning and from year to year thereafter. This agreement may be modified at any time during the program period to meet the changing needs of your facility with a 60 day written notice to Syserco. Aareement Pricina: Item Year 1 Year 2 Year 3 Service Agreement — to include Annual Preventative & Proactive Maintenance with Action Dashboard, Annual Onsite Support, Remote & Online Technical Support, Next business $13,189 $13,717 $14,265 day emergency Response, Discounted material and reduced labor, Dedicated response team Annual Software Upgrade, Energy Review. Billing Cycle: ❑ Annual in advance. ❑ Semi - Annual in advance. ® Quarterly in advance. Prices quoted in this proposal are valid for 90 days. By signature below this proposal is hereby accepted, Customer agrees to enter into the Service Agreement (as described in the attached Terms and Conditions), and Syserco is authorized to proceed with the work. Accepted By: City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 -6197 Approved by (Signature): Approval Date: Approver Name: Approver Title: Customer Billing Address Submitted By: Syserco Inc. 44244 Fremont Blvd. Fremont, CA 94538 Submitted by (Signature): Submittal Date: December 20, 2012 Submitter Name: Jennifer Rose Submitter Title: Service Account Manaaer City of Gilroy Approved By: (Signature): 7351 Rosanna Street Approval Date: Gilroy, CA 95020 -6197 Approver Name PO Number: Approver Title: Derek Eggers CEO Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 14 of 17 SYSEKCC3 TERMS AND CONDITIONS The following terms and conditions are attached to and form an integral part of Syserco, Incorporated's Building Automation Service Agreement ( "Proposal "). The portions of the Proposal relating to "Scope of Work" or any "Proposed Solution" (in either, case, referred to herein as the "Proposed Solution "), the Signature Page /Pricing Summary, the List of Maintained Equipment, the Service Coverage report, together with these terms and conditions, are collectively referred to as the "Service Agreement." Article 1: General 1.1 a) The Service Agreement, when accepted in writing by the Customer and approved by an authorized representative of Syserco, Inc. shall constitute the entire, integrated, and exclusive agreement between the parties relating to this Service Agreement for the equipment and software identified in the List of Maintained Equipment ( "Equipment ") or the Service Coverage Report attached to this Service Agreement, and shall supersede and cancel all prior or contemporaneous agreements and understandings, written or oral, relating to the subject matter of the Service Agreement. The Service Agreement and any rights or obligations there under may not be assigned by either party- without the advance written consent'of the other: (b) This Service Agreement shall not be modified except in writing, signed by an authorized representative of Syserco, Inc. Syserco Inc:'s performance under this Service Agreement is expressly conditioned on Customer's assenting to all of the terms of this Service Agreement. Any different or additional- terms contained in any writing at any time submitted or to be submitted to Syserco Inc. by Customer relating.to this subject matter are not part of and do not in any way effect, modify, amend, or waive the terms of this Service Agreement. c) The terms and conditions set forth herein shall supersede, govern and control any conflicting terms of the Proposed Solution or the Proposal 1.2 This Service Agreement shall automatically renew for successive one (1) year periods on the day of expiration of the Service Agreement on its terms, and every year thereafter, unless stated otherwise in the Service Agreement. 1.3 Either party may terminate or amend this Service Agreement by giving the' other party at least sixty'(60) days prior written notice of such amendments or intent not to renew. 1.4 This Service Agreement shall be governed by and enforced in accordance with the laws of the State of California. 1.5 During the term of, or within 180 ,days after the termination of this Service Agreement, Customer shall not (1) solicit any Syserco employee or (2) hire any Syserco employee who performed work under this between Customer and Syserco. Syserco represents, and Customer acknowledges, that Syserco has a substantial initial and on -going business investment and interest in its employees who perform services for Customer, and Customer acknowledges that it would be enriched by the hiring of a highly,trained employee that Customer! did not have to incur the cost to train. Syserco's training of such employee(s) can take up to three years of employment, during which time Syserco earns little, if any,'return on its investment in the employee(s) since they cannot be deployed separately and must-be accompanied and overseen by appropriately trained senior employees, and loss of such employee(s) represents a substantial lost opportunity cost to find replacement employee(s) and properly train and educate•them to provide services to other Customers. ,Syserco's damages caused, by Customer's breach of clauses (1) or (2), above, include the salary paid to train and educate its employee(s); as well as the lost opportunity costs, i.e., the inability to service customer accounts with a single trained and educated employee, during such training period. Liquidated Damages, not by way of penalty,but'by way of the Parties' reasonable estimate of the damage to be caused to Syserco by breach of clauses (1) or (2), above, shall be in the amount of the annual base salary times a multiplier of 1.30 (to cover the value of benefits provided) of the Syserco employee. 1.6. Customer will designate in writing a contact person with authority to make decisions for Customer regarding the Service Agreement. Customer will provide Syserco, Inc. with information sufficient to contact such person in an emergency: If such representative cannot" be reached, 'any request for service received from a person located at Customer's premises will be deemed' authorized by Customer, and Syserco, Inc. will, in its discretion, act accordingly. 1.7 Syserco, Inc. will be permitted to control and /or operate all Equipment ,necessary to perform the Service Agreement. Article 2: Equipment Testing, Inspection and Maintenance 2.1 The Customer represents that all Equipment is in satisfactory working condition. By the latter of the first thirty (30) days of this Service Agreement or the first scheduled inspection, Syserco, Inc. will have inspected all the Equipment listed for coverage. 2.2 If the Proposed Solution provides for maintenance, any repairs 'and replacements of Equipment are limited. to restoring the proper working condition of such Equipment. Syserco, Inc. will not be obligated'to• provide replacement Equipment that represents significant capital improvement compared to the original (significant capital improvement compared to the originalo means any Equipment which has exceeded 25% of its expected useful life).' Exchanged components become the property of Syserco, Inc. Article 3: Charges, Fees and Invoices 3.1 Payments to be made under this Service Agreement will provide for, and be in consideration of, only services specifically included under the Proposed Solution. All other services, including but not limited to the following, shall be. separately billed or surcharged "on a time and materials basis:, (a) emergency services performed at Customer's request, if inspection does not reveal any deficiency covered by this Service Agreement; (b) services performed other than during Syserco Inc.'s normal working hours; (c) additional services requested by Owner outside the scope of this Service Agreement; and (d) service performed on equipment not covered, by this Service Agreement. 3.2 Invoices are due upon receipt. If any payment is not received when due, Syserco, Inc. may deem Customer to be in breach, hereof and may enforce any remedies available to'it hereunder or at law, including without limitation suspension or termination of services and acceleration of payments. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 15 of 17 SYSERgg Article 4: Warranty /Claims 4.1 Syserco warrants: (a) that up to one year from either the date of this Service Agreement or the date the Equipment is installed under this Agreement, whichever first occurs, all equipment manufactured by Syserco, Inc. or.bearing its nameplate will be free from defects in material and workmanship arising from normal use and service; (b) Syserco labor for all services under this Service Agreement for 90 calendar days after the work is performed. Syserco's warranty shall not apply and is waived in the event of misuse, neglect, inadequate maintenance, or improper operation. Syserco's warranty is expressly limited to its own labor and the Equipment (and includes Syserco's labor for removal and reinstallation of the affected Equipment and subsequent testing of the replaced equipment). Syserco's warranty does not cover any other costs to get to the Equipment, removal and replacement or repair to the work of others or finishes, testing, inspection, consequential damages, indirect damages, loss of use, overtime or increased or additional labor costs, Customer's administrative expenses, or damages or losses of persons or entities other than Customer. Customer shall provide Syserco prompt and reasonable notice and opportunity to inspect and repair any allegedly defective work before undertaking to repair same by itself or with the assistance of others. 4.2 The limited warranties set forth in Section 4.1 will be_ void as to, and Syserco does not warrant for any reason, any Equipment (1) repaired, altered or improperly installed by any person other than Syserco, Inc. or its .authorized representative; (ii) subjected to unreasonable or improper use or storage, used beyond rated conditions, operated other''than per Syserco, Inc., the manufacturer's instructions, or otherwise subjected to improper maintenance, negligence or accident; (iii) damaged because or of any use of the 'Equipment after Customer has, or should have, knowledge of any defect in the Equipment; or (iv) not manufactured, fabricated and assembled by Syserco, Inc. or not bearing Syserco Inc.'s nameplate. 4.3. Syserco, Inc. will indemnify Customer from and against damages for personal injury or physical damage to property, but not loss of use of the property resulting from such damage or from damage to any work performed hereunder or for economic damages. Such indemnification shall be solely to the extent directly caused by Syserco, Inc or its employees', consultants' or agents' negligent acts or omissions or willful misconduct in connection with its performance of services hereunder, and then only for that part or proportion of any damage caused by Syserco. Syserco Inc's obligations under this indemnity provision shall not extend to damages arising out of or in any way attributable to the negligence of Customer or its agents, consultants or employees other than Syserco, Inc. 4.4 Customer will indemnify Syserco, Inc., from and against damages for personal injury or for Customer's or its employees', consultants', or agents' interference with, or disruption of, Syserco, Inc.'s performance of this Service Agreement. Such indemnification shall be solely to the extent directly caused by Customer or its employees', consultants' or agents' negligent acts or omissions or willful misconduct in connection with Syserco, Inc.'s. performance of services hereunder, and then only'for that part or proportion of any damage caused by Customer. 4.5 Syserco, Inc's liability to Customer related to or arising out of this Service Agreement is expressly limited to actually incurred and direct losses, claims, expenses and damages. Syserco, Inc. shall in no event be responsible for incidental, consequential, punitive, exemplary or special damages, including without limitation lost profits, interest, damage to reputation,. loss of use of capital, and /or lost business opportunities, whether arising in warranty, late or non - delivery of'any Equipment or Services, tort, contract or strict liability, and regardless of whether Syserco, Inc. has been advised of the possibility of such damages. Syserco, Inc's liability shall not include any claim, loss, or damage related to or arising out of any failure to achieve or maintain any green building or environmental goals, points or incentives. 4.6 Attorney's Fees. In the event of litigation between the parties to enforce the rights under this paragraph, reasonable attorney fees shall be allowed to the prevailing party Article 5: Customer Responsibilities 5.1 Customer will operate and maintain all Equipment in accordance with applicable manufacturer's specifications, including those set forth in the manufacturer's operating manuals or instructions, as well as all requirements of applicable law or of authorities having jurisdiction. 5.2 Customer will promptly notify Syserco, Inc. of any unusual operating conditions, system malfunctions or building changes that may affect the Equipment or any services. 5.3 Customer will provide Syserco, Inc. with reasonable means of access to the Equipment and shall make any necessary provisions to reach the Equipment and peripheral devices. - Customer will be solely responsible for any removal, replacement or refinishing of the building structure or finishes that may be required to gain access to such Equipment. Article 6: Limitations of Maintenance or Service Obligations 6.1 Syserco, Inc. will not be responsible for the maintenance, repair or replacement of, or services necessitated by reason of: (a) non - maintainable, non- replaceable, or obsolete parts of, the Equipment, including but not limited to ductwork, shell and tubes, heat exchangers, coils, unit cabinets, casings, refractory material, electrical wiring, water and pneumatic piping, structural supports, cooling tower fill, and basins, etc. unless otherwise specifically stated herein; or (b) negligence, abuse, misuse, improper or inadequate repairs or modifications, improper operation, lack of operator maintenance or skill, failure to comply with manufacturer's operating and environmental requirements, Acts of God, or other reasons beyond its control. Syserco, Inc. assumes no responsibility for any service performed on any Equipment other than by Syserco, Inc. or its agents. 6.2 Syserco, Inc. shall not be responsible for loss, delay, injury or damage that may be caused by circumstances beyond its control, including but not restricted to acts or omissions by Customer or its employees or agents, Acts of God, war, civil commotion, acts of government, fire, theft, corrosion, flood, water damage, lightning, freeze -ups, strikes, lockouts, differences with workmen, riots, explosions, fuel, labor or materials. 6.3 Syserco, Inc. is not responsible for repairs, replacements or services to Equipment due to corrosion, erosion, improper or inadequate water treatment by others, electrolytic action, chemical action or other reasons beyond its reasonable control. 6.4 Syserco, Inc. shall not be responsible for the removal or reinstallation of replacement valves, dampers, water flow and tamper switches required from pipes and duct work including any venting or draining systems. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 16 of 17 SYS E RC4 Appendix A — List of Maintained Equipment Gilroy Police Department 7301 Hanna Street Gilroy, CA 95020 (408) 846 -0300 Equipment Description Qty Repair & Replacement Coverage Software Upgrades Preventative Maintenance Envision for BACtalk Server 1 Optional Optional YES Envision for BACtalk Client Workstations 2 Optional Optional YES Global Controller — BCM TUX 3 Optional Optional Yes Global Controller — BCM MDM 1 Optional Optional Yes Global Controller— BCM PWS 1 Optional Optional Yes Global Controller — BCM ETH 1 Option I 0 tional Yes Global Controller— BCM TUX 3 Optional Optional Yes Global Controller— BCM MDM 1 Option I 0 tional Yes TUX- 784ST* 2 T& M T& M T& M VAV -SD* 64 T & M T &M T & M VAV -TUX* 50 T& M T& M T& M DDC -1* 3 T &M T &M T &M TUX -784* 1 T &M T &M T &M TUX- 784S *T 2 T& M T& M T& M Gilroy City Hall 7351 Rosanna Street Gilroy, CA 95020 Tel. (408) 846 -0400 I Fax. (408) 846 -0500 Equipment Description Qty Repair & Replacement Coverage Software Upgrades Preventative Maintenance Global Controller — BCM PWS 1 Optional Optional Yes Global Controller — BCM ETH 1 Optional Optional Yes Global Controller — BCM TUX 3 Optional Optional Yes Global Controller — BCM MDM 1 Optional Optional Yes VAV -TUX* 50 T& M T& M T& M DDC -1* 3 T &M T & M T &M TUX -784* 1 T &M T & M T &M TUX- 784ST* 2 T& M T& M T& M *We strongly recommend a planned migration path for the upgrade 1 replacement of the Alerton IBEX field level devices to the Alerton BACtalk platform before these devices are obsolete. Syserco Inc. - 44244 Fremont Blvd., Fremont, CA 94538 - (510) 498 -1171 - CL #483939 - Page 17 of 17 c R © AI® CERTIFICATE OF LIABILITY INSURANCE DATE 07IDDNY / 16 /2 /Y3 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE ,DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE • COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),, AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate. holder in lieu of such endorsement(s). PRODUCER OG66614 - -1- 925- 22.6 -73.50 One Risk Management & Insurance Services, LLC _ CONTACT Joan Marie Tilson ' PHONE FAX C o A/C No): 5976 W. Las Positas Blvd. Suite 100 � E -MAIL tilsonOonerisk rou com ADDRESS: j g P , X Pleasanton, CA 94588 INSURERS AFFORDING COVERAGE NAIC# INSURERA: GOLDEN EAGLE 'INS CORP 10836 Jon Turner INSURED INSURER B.:�DEPOSI -TORS INS CO 42587, Syserco, Inc. INSURERC: GREAT AMER INS CO 16691 INSURER D: CYPRESS INS CO 10855 215 Fourier Avenue INSURER E: GREAT AMER E &S INS CO 37532 Fremont, CA 94539 INSURER F: COVERAGES CERTIFICATE NUMBER- 34785864 11 RFVISIn1J NI IMRFR• THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER -DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED, HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF MM /DDNYYY POLICY EXP MM /DDNYYY LIMITS A GENERAL LIABILITY X X CBP8562094 03/01/1 03/01/14 EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY - CLAIMS -MADE OCCUR PREMISES Ea occurrence) $ 500,000 MED EXP (Any one person). $ 10,000 PERSONAL &ADV INJURY $ 1,000,000 'GENERAL AGGREGATE $,2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: [PRODUCTS - COMP/OP AGG. $ 2,000,000 POLICY M PRO- LOC $ B AUTOMOBILE LIABILITY . X X ACP BA 7806032817 03/01/12 03/01/14 COMBINED SINGLE LIMIT Ea ..id.nll $ 1,000,000 BODILY INJURY (Per person) ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS Px BODILY INJURY Per accident ( ) $ X NON -OWNED HIRED AUTOS - AUTOS $1000 comp g $1000 Coll PROPERTY DAMAGE Per accident $ $ C X UMBRELLA LIAB X OCCUR TUU025539401 03/01/1 03/01/14 EACH OCCURRENCE $ 15', 000, 000 AGGREGATE $ 15, 000, 000 EXCESS LIAB CLAIMS -MADE DED RETENTION $ 0 $ - D WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? � N / A X 330006387 -131 03/0.1/1 03/01/14 X WCSTATU- OTH- - E.L. EACH ACCIDENT $ 1, 000,000- _ E.L. DISEASE - EA EMPLOYEE $ 1,000,000 (Mandatory In NH) If yes, describe under E.L. DISEASE - POLICY LIMIT $, 1,000,000 DESCRIPTION OF OPERATIONS below A Small Tools Floater/ CBP8562094 03/01/1 03/01/14 Per'Occurrence 50,000 E Professional Liability PCE211123703 03/01/1 03/01/14 Each Act 2,000,000 E Contractors Pollution PCE211123703 03/01/1 03/01/14 Each Condition 2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required), RE: City of Gilroy -PD and City Hall - Service Agreement The City of Gilroy, its officers and - employees are additional insureds per the attached endorsement. %,MN1r,17LLA I IUIY SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Gilroy THE EXPIRATION , DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 7351 Rosanna Street AUTHORIZED REPRESENTATIVE n Gilroy, CA 95020 I USA V 1y00 -AUTO AGUKU UUKI'UKA,I IUN. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD Shaver' 34785864 abLd --Vtr�qodoo A - a,dJvDiD- '09Z . it 00.6bVlood W02033n'm'. t6tsw oqs eq- tilm eAoqp UMOLS I o LU I `An.pe4pi 464 pl, Lucf3,qj,p94 !n b . NV.L,$V.,93L1411vn.o`:N�31-3 SVH.IVHI.NQMVZINVQ iO,,-80 N .0 NI. t7 8fcI aS3.4 A JOWCON JOAGcjfl, C 1..Ho,'IHMJ v 'N QIIVPQI M..Y- �:;s U.1W.Jod- "d* 'oldi tit? P wppjGu 1!�q'O'SOCIPUV�UP .1,�jVd3QV13A0Q. $1 tV:H' f15> ONtfdfiSNl d �MOXRO: 03UnSNUllQqV- ,.,V :-,N,011'VZINV0UO°�O NOS.83d H'O is H141M3d 23Q IN3N93NQV :.3AVH NQt jUV M0 --NQS�I3&.HWs,',PNV MAMH4A NPI ZIN V bUb.-Up V :(s)uoljezlmol3jC) Jo (s 090t044 44 'J3, d' dw'' 'd' '-ppg-pt jPJUzpq S.0%)WO 1 Q PPI@I. pq7�jqn eql, u! ppoppl. ?4ns..fj, .011fto. le -.p8wippodpowas4opues14 Os, G41: 41. ROCIPQOO,040 P61'06f 66i, 41113 'Mom anal A d J d' 'A' q d , OQJI jo;i1onfur., woq A oil -IUVd- -3 E) 31Npq A.Lll a - " V, w 9- 'd .6Uji�O(IL porl PIP j�b SPIMP uwl.P�P�sj P� 04 PPU0.�P141 ..0N.Ol.LO3.dO: Q311all'dMa stt aid N I1 a 3SWalid '4017 N 0143 �MNQQ :tiHl 10,d N3 Golden Eagle ENDORSEMENT Insurance. . skr_en ofcibatyxuiw cwp Policy Number: CBP8562094 Prior Policy: 8562094 Billing Type: DIRECT BILL Coverage Is Provided In GOLDEN EAGLE INSURANCE CORPORATION Named Insured and Mailing Address: Agent: SYSERCO INC 'ONE RISK MGMT AND INSURANCE SE 44244 FREMONT BLVD RVICES LLC ' FREMONT CA 94538 -6000 5976 W LAS POSITAS BLVD STE 100 PLEASANTON CA 94588 -8511 Agent.Code: 4296578 Agent Phone: (925) - 226 -7350 POLICY CHANGE ENDORSEMENT POLICY PERIOD: From: 03/01/2013 To: ' 03/01/2014 at 12:01 AM Standard Time at your mailing address shown above. DESCRIPTION OF CHANGE CHANGE EFFECTIVE DATE: 0711612013 THE FOLLOWING ADDITIONAL INTEREST IS ADDED TO THE POLICY PER CG2037 (07104) ATTACHED: CITY OF GILROY Countersigned: By Authorized Representative Date Issued: 08/21/2013 Date 17-60 (10194) INSURED COPY 03101/2013 '8562094 NEUSXCXC2108 PGDMO60D J28M GCAFPPN 00003169 Page 5 Forming a part of Policy Number: CBP8562094 Coverage is Provided In GOLDEN EAGLE INSURANCE CORPORATION Named Insured: Agent: SYSERCO INC ONE RISK MGMT AND INSURANCE SE RVICES LLC Agent Code: 4296578 Agent Phone: (925) -226 -7350 THIS ENDORSEMENT'CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS = COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART Section II = Who Is An Insured is amended to Include ' as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the schedule of this endorsement performed for that additional insured and included In the °products- completed operations hazard 'SCHEDULE Name Of Additional Insured Person(s) Or Organlzation(s): CITY OF GILROY -PD AND CITY HALL- SERVICE AGREEMENT ., THE CITY OF GILROY, ITS OFFICERS AND EMPLOYEES 7351 ROSANNA STREET GILROY, CA 95020 Location And Description Of Completed Operations: Information required to complete this Schedule, if not shown above, will be shown in the Declarations. © ISO Properties, Inc., 2004 CG 20 37 (07/04) INSURED COPY 03101=13 8562094 NEUSXCXC2108 I PGDMO600 J28M GCAFPPN 00003172 Page 8