HomeMy WebLinkAboutSIEMENS BUILDING TECHNOLOGIES, INC. -2001 : City of Santa Ana
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� "`°" AGREEMENT TERMINATION FORM
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Please complete this form in its entirety when the attached agreement and all
amendments (if any) are no longer in effect.
Note: If your agreement is grant related, please ensure that all grant retention requirements
have been satisfied prior to signing the termination form.
Is the agreement(s)a permanent record?Yes No
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Return form to the Clerk of the Council Office (M-30). •
Call 647-1520 if you have any questions. •
The agreement with <Yietneris fW/I Tehnelo ies (iiv, e s wsJ
No. E7 -,21) v isk was completed on /.27q2MaRand final paym. nt has been made.
(List all amendments. Use space below if needed.) C // "7/i(q2- V/
Department: f17 S1 13`,ti'leil- �_ e?411+ `.
Phone/Ext.: X 4757 ii. o1/I
Signature: 4.-,,S---An----
Date: ;1/6/ 6g
Revised: I 0-18-16
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I () ~ O~ ---U~ CONSULTANT AGREEMENT
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A-2001-156
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THIS AGREEMENT, made and entered into this I~ J. day Of~~ ,2001 by
and between Siemens Building Technologies, Inc. a Delaware Corporaf (h mafter
"Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and
existing under the Constitution and laws of the State of California (hereinafter "City").
RECIT ALS
A. The City desires to retain a consultant having special skill and knowledge in the field of
maintenance and service for energy and heating ventilating and air conditioning control
systems.
B. Consultant represents that Consultant is able and willing to provide such services to the
City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall perform those services as set forth in Exhibit A to this Agreement.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services,
the ra~s and charges identified in Exhibit A. The total sum to be expended under this
Agreement, shall not exceed $16,800.00 annually during the term of this Agreement.
b. Payment by City shall be made within thirty (30) days following receipt of proper
invoice evidencing work performed, subject to City accounting procedures. Payment need not
be made for work which fails to meet the standards of performance set forth in the Recitals
which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above and terminate on
December 31, 2002, unless terminated earlier in accordance with Section 12, below. The term of
this Agreement may be extended for two one-year extensions, in an annual amount not to exceed
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$16,800.00, upon a writing executed by the Executive Director of Finance & Management
Services Agency and the City Attorney.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor
shall it be construed to create an employer-employee relationship, a joint venture relationship, or
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Consultant shall pay all salaries and
wages, employer's social security taxes, unemployment insurance and similar taxes relating to
employees and shall be responsible for all applicable withholding taxes.
5. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance naming the City, its officers, employees, agents, volunteers and
representatives as additional insured(s) and shall include, but not be limited to protection against
claims arising from bodily and personal injury, including death resulting therefrom and damage
to property, resulting from any act or occurrence arising out of Consultant's operations in the
performance ofthis Agreement, including, without limitation, acts involving vehicles. The
amounts of insurance shall be not less than the following: single limit coverage applying to
bodily and personal injury, including death resulting therefrom, and property damage, in the total
amount of $1 ,000,000 per occurrence. Consultant shall supply City with a fully executed
additional insured endorsement in substantially the form attached hereto as Exhibit B upon
execution of this Agreement and shall be approved in form by the City Attorney.
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, <' b. Business automobile liability insurance, or equivalent form, with a combined single
limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for
owned, hired and non-owned automobiles.
c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300
of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against
liability for worker's compensation or to undertake self-insurance. Prior to commencing the
performance ofthe work under this Agreement, Consultant agrees to obtain and maintain any
employer's liability insurance with limits not less than $1,000,000 per accident.
d. If Consultant is or employs a licensed professional such as an architect or engineer:
Professional liability (errors and omissions) insurance, with a combined single limit of not less
than $1,000,000 per claim.
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e. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
(i) Consultant shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior written notice to the City.
f. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procured
and is in force and paid for, the City shall have the right, at the City's election, to forthwith
terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its
time and materials expended prior to notification of termination. Consultant waives the right to
receive compensation and agrees to indemnify the City for any work performed prior to approval
of insurance by the City.
6. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability: (1) for personal
injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims
for personal injury, including health, and claims for property damage, which may arise from the
direct or indirect operations ofthe Consultant or its contractors, subcontractors, agents,
employees, or other persons acting on their behalf which relates to the services described in
section 1 of this Agreement; and (2) from any claim that personal injury, damages, just
compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects
arising from this Agreement. This indemnity and hold harmless agreement applies to all claims
for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to
have been suffered, by reason of the events referred to in this Section or by reason ofthe terms
of, or sffects, arising from this Agreement. The Consultant further agrees to indemnify, hold
harmiess, and pay all costs for the defense ofthe City, including fees and costs for special
counsel to be selected by the City, regarding any action by a third party challenging the validity
of this Agreement, or asserting that personal injury, damages, just compensation, restitution,
judicial or equitable relief due to personal or property rights arises by reason of the terms of, or
effects arising from this Agreement. City may make all reasonable decisions with respect to its
representation in any legal proceeding.
7. CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees
that it shall not use or disclose such information except in the performance of this Agreement,
and further agrees to exercise the same degree of care it uses to protect its own information of
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like importance, but in no event less than reasonable care. "Confidential Information" shall
include all nonpublic information. Confidential information includes not only written
information, but also information transferred orally, visually, electronically, or by other means.
Confidential information disclosed to either party by any subsidiary and/or agent of the other
party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure
shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is,
through no fault of the Consultant disclosed in a publicly available source; ( c) is in rightful
possession of the Consultant without an obligation of confidentiality; (d) is required to be
disclosed by operation of law; or ( e) is independently developed by the Consultant without
reference to information disclosed by the City.
8. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under
this Agreement.
9. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this
Agreement shall be in writing and shall be deemed to be properly given if delivered in person or
mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
To City:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
telefacsimile (714) 647-6956
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With courtesy copies to: -
Executive Director of Finance & Management Services Agency
City of Santa Ana
20 Civic Center Plaza (M-17)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-5414
and,
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City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
telefacsimile (714) 647-6515
To Consultant:
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress, California 90630-5221
Attn: Jay Barthel
A party may change its address by giving notice in writing to the other party. Thereafter,
any notice, tender, demand, delivery, or other communication shall be addressed and transmitted
to the new address. If sent by mail, any notice, tender, demand, delivery, or other
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or
other communication shall be effective or deemed to have been given twenty-four (24) hours
after the time set forth on the transmission report issued by the transmitting facsimile machine,
addressed as set forth above. For purposes of calculating these time frames, weekends, federal,
state, County or City holidays shall be excluded.
10. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the
terms of this Agreement shall prevail. This Agreement may not be modified except by written
inst~ent signed by the City and by an authorized representative of Consultant. The parties
agree that any terms or conditions of any purchase order or other instrument that are inconsistent
with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor
the City. 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.
11. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement
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shall be construed to limit the City's ability to have any of the services which are the subject to
this Agreement performed by City personnel or by other consultants retained by City.
12. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant
compensation for all services performed by Consultant prior to receipt of such notice of termination,
subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to deliver
to the City all work product completed as of such date, and in such case such work product shall be
the property of the City unless prohibited by law, and Consultant consents to the City's use thereof
for such purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of performance
specified in the Recitals of this Agreement.
13. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital
status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited
by applicable law, in the recruitment, selection, training, utilization, promotion, termination or
other employment related activities. Consultant affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
14. JURISDICTION - VENUE
This Agreement and all questions relating to its validity, interpretation, performance, and
enforcement shall be government and construed in accordance with the laws of the State of
California. This Agreement has been executed and delivered in the State of California and the
validity, interpretation, performance, and enforcement of any of the clauses ofthis Agreement
shall b.> determined and governed by the laws of the State of California. Both parties further
agree' that Orange County, California, shall be the venue for any action or proceeding that may
be brought or arise out of, in connection with or by reason of this Agreement.
15. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services
hereunder and required by the laws and regulations of the United States, the State of California,
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of her inability to obtain or maintain such permits, licenses,
approvals, waivers, and exemptions. Said inability shall be cause for termination of this
Agreement.
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16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature hereinbelow has the power,
authority and right to bind their respective parties to each ofthe terms of this Agreement, and shall
indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to
City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set
forth in the body of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date
and year first above written.
ATTEST:
CITY OF SANTA ANA
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Patricia E. Healy
Clerk of the Council
~~~",-Q~cD '-V>~
~ Miguel A. Pulido \
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher
City Attorney
APPROVED AS TO CONTENT:
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By: Lisa E. Storck
Assistant City Attorney
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RECOMMENDED FOR APPROVAL:
CONSULTANT:
;IS otP
Siemens Building Technologies, Inc.
By: Robert Chesher
Western District Manager
Tax ID#: 13-2762488
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SI'EMENS
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Siemens Building Technologies, Inc.
Technical Support Program Proposal
By and Between:
Siemens Building Technologies, Inc.
10775 Business Center Dr.
Cypress, CA 90630
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Services shall be provided at Santa Ana Library building located at 24 Civic Center Plaza.
Siemens Building Technologies shall provide pneumatic preventative maintenance and service
for the Siemens/Landis pneumatic control system (Siemens-Landis & Gyr-Powers) as outlined in
this proposal dated May 30, 2001 and the attached terms and conditions. Four (4) days of
Preventive Maintenance is included.
Duration: This agreement shall remain in effect for an original term of one (1) year beginning
July 1, 2001 with an option to extend for year 2 and year 3.
Charges:
Year 1
$4,456.00
Year 2
$4,456.00
Year 3
$4,688.00
Prices quoted in this proposal are firm for 60 days.
Proposal accepted by:
Proposal submitted by:
City of Santa Ana
Jay Barthel for Joe Wurzelbacher
Account Executive
Signature
Date
EXHIBiT A - ,
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress, CA 90630-5221
Tel: (714) 761-2200
Fax: (714) 761-2134
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SIEMENS
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Technical SUDDort Services Pneumatic
Pneumatic Controls Inspection: We will inspect your pneumatic controls to assess their
condition and performance. By their nature, pneumatic controls drift out of calibration with
changes in mechanical component performance, building use, and climatic conditions. The
inspection program will either confirm proper operation or identify areas that require attention.
We will provide a report of equipment status that will determine any necessary corrective
actions. This service will be performed 4 times per year on the equipment shown in the List of
Maintained Equipment.
Repair & Replacement Services: To reduce the effects of unbudgeted repairs, we will
repair or replace failed or worn components to maintain your system in peak operating
condition. Components that are suspected of being faulty may be repaired or replaced in
advance to minimize the occurrence of system interruptions. Labor and materials are included
as part of this service for the equipment shown in the List of Maintained Equipment.
Emergency Onsite Response. To reduce the costs and disruptions of downtime when an
unexpected problem does occur, we will provide Emergency Onsite Response within 4 hours
upon your notification. We will provide this service between scheduled service calls, Monday
through Friday, 8 a.m. to 5 p.m., to minimize downtime. Non-emergency calls, as determined
by your staff and Siemens will be incorporated into the next scheduled service call.
Documentation & Quality Assurance
Documentation of All Service Provided: We will document each on-site service call and
furnish you with a copy showing time, date, and a brief description of activity. Work orders for
on-site system preventive maintenance will list the inspection date, individual to report to,
equipment identification, equipment location, work to be performed, and any special
instructions.
Quality Assurance Program: We will meet periodically with you to evaluate system
performance and your satisfaction with the quality of service that is being provided under your
Technical Support Program.
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress, CA 90630-5221
Tel: (714) 761-2200
Fax: (714) 761-2134
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,SIEMENS
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Profect Team
An important benefit of our Technical Support Program derives from having Siemens Building
Technologies personnel familiar with your building systems. Our implementation team
provides thorough, reliable service and scheduling for the support of your system.
The following building professionals will be dedicated to your Technical Support Program:
Joe Wurzel bacher, Sales Account Representative, manages the overall strategic service plan
based upon your current and future service requirements.
Jay Barthel, Service Account Engineer, is responsible for ensuring that our contractual
obligations are delivered, your expectations are being met and you are satisfied with the
delivery of our services.
George Berg, Service Mechanic, is responsible for performing the ongoing pneumatic service in
your facility.
John Gruss, Service Operations Manager, is responsible for managing the delivery of your
entire support program and service requirements.
Customer Response Center
Jill Houlston, Service Coordinator, is responsible for scheduling your preventive maintenance
visits, and handling your emergency situations by taking the appropriate action.
Patti Thompson, Service Administrator, is responsible for all service invoicing including your
Technical Support Program and Time and Material projects.
Soecial Services
1. Customer will be billed a labor rate of $87.00 per hour on any mechanical work deemed
outside the parameters of this agreement.
2. A discount of 600/0 off list price for all Siemens/Landis manufactured parts not included
in this agreement.
3. Either party, upon 30 days written notice may terminate this agreement.
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress, CA 90630-5221
Tel: (714) 761-2200
Fax: (714) 761-2134
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,5I'EMENS
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List of Maintained Eauioment
Time Clock
Outside Air Thermostat
Alternator Switch
Electric Valve Actuators
Electric Damper Actuators
Electric Plenum Controllers & Sensors
Electric Water Temperature Controller & Sensor
Electric Thermostats
Siemens Building Technologies, Inc.
Tel: (714) 761-2200
Fax: (714) 761-2134
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10775 Business Center Drive
Cypress, CA 90630-5221
SIEMENS BUILDING TECHNOLOf.;IES, INC.
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Landis Division
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TERMS AND CONDITIONS (WIO FLS)
The following terms and conditions are attached to and form an integral part of Siemens Building Technologies, Inc.'s (referred to herein as "SBTI")
Technical Support Program Proposal ("Proposal"). The portions of such Proposal relating to "Scope of Work" or any "Proposed Solution" (in either case,
,referred to herein as the "Proposed Solution"), together with these terms and conditions, are collectively referred to as the "TSP Agreement".
Article 1: General Article 2: Equipment Testing, Inspection and Maintenance
.1.1 a) The TSP Agreement, when accepted in writing by the Customer 2.1 The Customer represents that all Equipment is in satisfactory
,and approved by an authorized representative of SBTI shall constitute the working condition. By the latter of the first thirty (30) days of this TSP
entire, complete and exclusive agreement between the parties relating to a Agreement or the first scheduled inspection, SBTI will have inspected all the
technical support program ("Services") for the equipment and software Equipment.
. identified in the List of Equipment or the Service Coverage Report attached 2.2 If SBTI determines as a result of such inspection that any
to. the TSP Agreement ("Equipmen~") and s.hall supersede a~ cancel all Equipment is in need of repair or replacement, the Customer will be so
pnor agreements and understandings, wntten or oral, relating to, the notified and shall take corrective action within thirty (30) days, or such
subje~t m.atter of the TSP Agreement. Th~ TSP Agr~ement and <;1ny nghts Equipment shall be automatically removed from coverage hereunder. SBTI
or obligatiOns thereunder may not be assigned by either party Without the will not be liable or responsible for the continued testing, maintenance,
advance written consent of the other. repair, replacement or operating capabilities of any portion of the Equipment
(b) The terms and conditions of this TSP Agreement shall not be until it has been restored to an acceptable initial condition at Customer's sole
modified or rescinded except in writing, signed by a corporate officer of expense. Any services provided by SBTI in the course of such restoration
SBTI. SBTl's performance under this TSP Agreement is expressly will be separately charged, on a time and materials basis, and not included in
conditioned on Customer's assenting to all of the terms of this TSP fees paid hereunder. If individual items of Equipment cannot, in SBTI's sole
Agreement, notwithstanding any different or additional terms contained in determination, be properly repaired or replaced due to age, obsolescence,
any writing at any time submitted or to be submitted to SBTI by Customer lack of availability of refrigerant gas, halon gas, necessary parts, materials,
relating to this subject matter. compatibility or otherwise, or as a result of excessive wear or deterioration,
c) The terms and conditions set forth herein shall supersede, ?BT~ may, ~ithin ten ,(10) days of such inspection, Qive written notice that it
govern and control any conflicting terms of the Proposed Solution or the IS WithdraWing such Items from coverage under thiS TSP Agreement and
Proposal. adjust the amounts to be paid hereunder accordingly.
1.2 This TSP Agreement shall automatically renew for successive 2,3 If the Propos.ed Solution p~o~ides for main~enance, any repairs ~nd
one (1) year periods beginning on the anniversary date of the original term repla~~ments of EqUlPr:nent are limited ~o restonng th.e proper work~ng
as set forth in the Proposal unless stated otherwise in the TSP condition of such EqUipment. SBTI Will not be obligated to proVide
Agreement.' replacement Equip~~nt that represents significant capital improvement
1.3 Either party may terminate or amend this TSP Agreement at the compared to the onglnal. Excha~ged co~pon~nts become th.e property of
end of the initial term or at the end of a renewal term by giving the other SBTI: except Hazardous Mat~n~!s, which Will under all circumstances
party at least sixty (60) days prior written notice of such amendments or remain the property and responsibility of Customer.
intent not to renew. Article 3: Charges, Fees and Invoices
1.4 If, during or within 90 days after the term of this TSP Agreement, 3.1 Payments to be made under this TSP Agreement will provide for,
Customer engages any SBTI employee who has performed Services and be in consideration of, only Services specifically included under the
under this TSP Agreement, Customer shall pay SBTI an amount equal to Proposed Solution. All other Services, including but not limited to the
the employee's latest annual salary. following, shall be separately billed or surcharged on a time and materials
1,5 This TSP Agreement shall be governed by and enforced in ~asis: .(a) emergency Services ~erformed at Cust<:>mer's request, if
accordance with the laws of the State of Illinois, or if the Services are inspection does not reveal any defiCiency covered by thiS TSP Agreement;
provided in Canada, the Province of Ontario, All claims or disputes arising (b) Serv,ices performed other. than during SBTI's nor~al working hours; and
under this TSP Agreement shall be litigated in the State, Commonwealth, (c) Service performed on equipment not covered by thiS TSP Agreement.
or Province in which Services are being provided to Customer hereunder. 3.2 Invoices are due upon receipt or otherwise as may be set forth
1.6 The Services are outlined in the attached Proposal's Proposed therein. If any payment is not received when due, SBTI may deem
Solution provisions, incorporated by reference herein, and shall be ~ustomer to be in brea~h he~eof a~d ma~ e.nf~rce any rem.edies avail~bl~ to
performed on the Equipment during SBTl's normal working hours, Monday It here~nder or at law, 1n~ludlng Without limitation suspension <:>r te:n:lna~lon
through Friday inclusive, excluding holidays, unless otherwise set forth of Services and acceleration of payments. Any amount not paid Within Sixty
herein. (60) days of the date due shall accrue interest from the date due, until paid,
1.7 Customer will at all times designate a contact person with at the rate of te~ percent (1.0%) per annu~. 1!1 the event of a dis~ute by
authority to make decisions for Customer regarding the Services. Cus~omer regardln~ any portion or al~ of an InVOIced ~mount, the u~dlspu~ed
Customer will provide SBTI with information sufficient to contact such portion shall be paid w~en due, and Interest on, the diSputed, unpaid portion
person in an emergency. If such representative cannot be reached, any shall accrue as aforesaid, from the date du~ until the date of payment, to the
request for Service received from a person located at Customer's premises will extent that such amounts are finally determined to be payable to SBTI.
be deemed authorized by Customer, and SBTI will, in its discretion, act 3,3 Customer is responsible for paying any present or future sales, use,
accordingly. occupancy.. excise or other federal, provincial, or local tax due or owing as a
1,8 SBTI will be permitted to control and/or operate all Equipment result of thiS TSP Agreement.
necessary to perform the Services, Article 4: Allocation of Risk
1,9 SBTI will not be required to conduct safety or other tests, install 4.1 (a) Until one year from either the date hereof or the date the
new devices or equipment or make modifications to any Equipment Equipment is installed, whichever first occurs, all equipment manufactured
beyond the Proposed Solution set forth in this TSP Agreement. Any by SBTI or bearing its nameplate will be free from defects in material and
Customer request to change the Proposed Solution or the nature of the workmanship arising from normal use and service.
Services must be in the form ?f a mutually agreed change order, effective (b) Labor for all Services under this TSP Agreement is warranted for
only when executed by all parties hereto. 90 days after the work is performed.
1.10 If the Equipment is altered or moved. by any.person, including (c) Equipment will not fail to function because of errors in processing,
~usto~er, othe~ than S~TI <:>~ a person authonzed by It,. Customer shall providing or receiving date or time data involving dates between January 1,
Immediately notify SBTII~ wntmg, and SBTI res~rv~ ~he nght to perform a 1999 and March 31, 2001, provided other products and software, including the
reacceptance test on, or If necessary a recommissIoning of, the system at computer workstation, with which the system interacts properly exchange date
Customer's expense. and time data with the system.
1,1.1 . After any .of the following events, SBTI will ~ave no Iiabilitx or 4.2 (a) The limited warranties set forth in Section 4.1 will be void as to,
?bhgatl?n unde~ thiS TSP Agreeme.nt, whether relatl.ng to the testing, and shall not apply to, any Equipment (i) repaired, altered or improperly
Ins~ctlon, mamtenance c:>r operation .of any EqUipment,. and. may installed by any person other than SBTI or its authorized representative; (ii)
termlnat.e. or suspend services under thiS TSP ~greement Imm~lately subjected to unreasonable or improper use or storage, used beyond rated
upon giving notice to Cust~m~r:. Customer falls to (a) authonze a conditions, operated other than per SBTI's or the manufacturer's instructions,
rea~ptance test or r~o~mlsslonmg that SBTI dee~s necessary; .(b) or otherwise subjected to improper maintenance, negligence or accident; (iii)
notify SBTI o~ any modifications or c~~nges to the ~qUlpment per Section damaged because of any use of the Equipment after Customer has, or
1.10; (c) notify SBTI of any conditions, malfunctions or changes per should have knowledge of any defect in the Equipment. or (iv) not
Section 6,2; or (d) provide the access required by Section 6.3.' '
FORM HVAC (10/98)
~nutactpr~, fabricated and assembled by SBTI or not bearing SBTl's
nClmeplGlte, However, SBTI assigns to Custorr vithout recourse, any
and all assignable warranties available from any~ufacturer, supplier, or
subcontractor of such Equipment.
(b) Any claim under the limited warranty granted above must be
made in writing to SBTI within thirty (30) days after discovery of the
.claimed defect, or with respect only to the warranty set forth in Subsection
4.1 (c) prior to April 1, 2001, unless discovered directly by SBTI. Such
limited warranty only extends to Customer and not to any subsequent
owner of the Equipment. Customer's sole and exclusive remedy for any
Equipment or Services not conforming with this limited warranty is limited
to, at SBTl's option, (i) repair or replacement of defective components of
covered Equipment, or (ii) reperformance of the defective portion of the
, Services, or (ii) to the extent previously paid, the issuance of a credit or
refund for the original purchase price of such defective component or
potion of the Equipment or Services,
(c) SBTI shall not be required to repair or replace more than the
component(s) of the Equipment actually found to be defective. SBTl's
warranty liability shall not exceed the purchase price of such item.
Repaired or replaced Equipment will be warranted hereunder only for the
remaining portion of the original warranty period.
4,3 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE
ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES,
STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY
DISCLAIMED. SBTI MAKES NO WARRANTY, EXPRESS OR IMPLIED,
THAT ANY EQUIPMENT PROVIDED HEREUNDER WILL PREVENT
ANY LOSS, OR WILL IN ALL CASES PROVIDE THE PROTECTION FOR
WHICH IT IS INSTALLED OR INTENDED. THE LIMITED EXPRESS
WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS TSP
AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A
WRITING SIGNED BY A DULY AUTHORIZED CORPORATE OFFICER
OF SBTI.
4.4 SBTI will indemnify Customer from and against losses, claims,
expenses and damages (including reasonable attorney's fees) 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. Such indemnification shall be solely to the extent caused by or
arising directly from SBTl's or its employees', consultants' or agents'
negligent acts or omissions or willful misconduct in connection with its
performance of Services hereunder. SBTl's obligations under this
indemnity provision shall not extend to claims, losses, expenses and
damages arising out of or in any way attributable to the negligence of
Customer or its agents, consultants or employees other than SBTI. SBTl's
liability to Customer or any third party under this Section 4.5 or otherwise
under the TSP Agreement is expressly limited to, and SBTI shall not be
liable other than for the direct losses, claims, expenses and damages
arising as aforesaid, SBTI shall in no event be responsible under this TSP
Agreement for incidental, consequential, punitive, exemplary or special
damages, including without limitation lost profits andlor 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 SBTI has been advised of the possibility of such damages, SBTI
reserves the right to control the defense and settlement of any claim for
which SBTI has an obligation to indemnify hereunder. The parties
acknowledge that the price for which SBTI has agreed to perform its
Services and obligations under this TSP Agreement has been calculated
based upon the foregoing limitations of liability, and that SBTI has
expressly relied on, and would not have entered into this TSP Agreement
but for, such limitations of liability.
Article 5: Environmental
5,1 Except as disclosed pursuant to Section 5.3, Customer
represents that there is no asbestos or any other hazardous or toxic
materials, as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the regulations
promulgated thereunder, and other applicable federal, state or local law
("Hazardous Materials"), present at Customer's locations where Services
are performed. SBTI will notify Customer immediately if it discovers or
suspects the presence of any Hazardous Material. All Services have been
priced and agreed to by SBTI in reliance on Customer's representations as
set forth in this Section 5,1 The presence of Hazardous Materials
constitutes a change in the Proposed Solution equivalent to a change
order whose terms must be agreed to by SBTI before its obligations
hereunder will continue.
5.2 Customer shall be solely responsible for testing, abating,
encapsulating, removing, remedying or neutralizing such Hazardous
Materials, and for the costs thereof, Even if an appropriate change order
has been entered into pursuant to Section 5.1 above, SBTI will continue to
have the right to stop providing Services until the job site is free from
Hazardous Materials. In such event, SBTI will receive an equitable
extension of time to cOI"'~lete its Services, and compensation for delays
caused by Hazardous M~IS remediation.
5.3 Customer warrants that, prior to the execution of the TSP
Agreement, it has notified SBTI in writing of any and all Hazardous Materials
present, potentially present or likely to become present at Customer's
locations and has provided a copy of any jobsite safety policies, including but
not limited to lock-out and tag procedures, laboratory procedures, chemical
hygiene plan, material safety data sheets, and other items covered or
required to be disclosed or maintained by federal, state, or local laws,
regulations or ordinances.
5.4 Customer hereby indemnifies and holds harmless SBTI from and
against any damages, losses, costs, liabilities or expenses arising from
Customer's breach of, or failure to perform its obligations under, Sections
5.1, 5,2 or 5,3 above,
Article 6: Customer Responsibilities
6.1 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. Such Equipment shall
be operated only in the specified operating environment, which shall be
supplied by Customer, including without limitation: (a) suitable electrical
service, including clean, stable, properly conditioned power, to all Equipment;
(b) telephone lines, capacity and connectivity as required by such
Equipment; and (c) heat, light, air conditioning or other environmental
controls, and other utilities in accordance with the specifications for the
Equipment. Failure to so operate the Equipment will terminate immediately
any maintenance obligations SBTI may have hereunder.
6.2 Customer will promptly notify SBTI of any unusual operating
conditions, system malfunctions or building changes that may affect the
Equipment or any Services,
6.3 Customer will provide SBTI 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.
6.4 Customer shall properly dispose of all ballasts, mercury bulb
thermostats, used oil, contaminated filters, contaminated absorbents,
refrigerant and any other Hazardous Materials that at any time are present at
Customer's premises, in accordance with all applicable federal, state, and
local laws, regulations, and ordinances. At no time and under no
circumstances will SBTI be responsible for any such removal or disposal and
Customer hereby indemnifies and holds SBTI harmless from and against
any liability or claim arising therefrom.
6,5 Customer will, if applicable, provide and pay for a dedicated voice
grade dial-up phone line and install a terminal block in a mutually agreed
upon location. All on-line service Equipment (not including the phone line)
will remain the property of SBTI unless otherwise stated herein.
Article 7: Limitations of Maintenance or Service Obligations
7.1 SBTI 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, slats 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. SBTI assumes no responsibility for any service performed on any
Equipment other than by SBTI or its agents.
7.2 SBTI 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, quarantine restrictions, delays in transportation,
or shortage of vehicles, fuel, labor or materials.
7.3 SBTI 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.
7.4 SBTI shall not be responsible for the removal or reinstallation of
replacement valves, dampers, waterflow and tamper switches required from
pipes and duct work including any venting or draining systems.
FORM HVAC (10/98)
SIEMENS
'-"
'-'
Siemens Building Technologies, Inc.
Technical Support Program Proposal
By and Between:
Siemens Building Technologies, Inc.
10775 Business Center Dr.
Cypress, CA 90630
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Services shall be provided at Santa Ana City Hall building located at 20 Civic Center Plaza.
Siemens Building Technologies shall provide pneumatic preventative maintenance and service
for the Siemens/Landis pneumatic control system (Siemens-Landis & Gyr-Powers) as outlined in
this proposal dated May 30/ 2001 and the attached terms and conditions. Four (4) days of
Preventive Maintenance is included.
Duration: This agreement shall remain in effect for an original term of one (1) year beginning
July 1/ 2001 with an option to extend for year 2 and year 3.
Charges:
Year 1
$5/664.00
Year 2
$5/664.00
Year 3
$5/960.00
Prices quoted in this proposal are firm for 60 days.
Proposal accepted by:
Proposal submitted by:
City of Santa Ana
Jay Barthel for Joe Wurzelbacher
Account Executive
Signature
Date
~/d4
na. re
sfi9/o/
Date
EXHIBIT A-'d-
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress, CA 90630-5221
Tel: (714) 761-2200
Fax: (714) 761-2134
1
SIEMENS
'-'
-'
Technical SUDDort Services Pneumatic
Pneumatic Controls Inspection: We will inspect your pneumatic controls to assess their
condition and performance. By their nature, pneumatic controls drift out of calibration with
changes in mechanical component performance, building use, and climatic conditions. The
inspection program will either confirm proper operation or identify areas that require attention.
We will provide a report of equipment status that will determine any necessary corrective
actions. This service will be performed 4 times per year on the equipment shown in the List of
Maintained Equipment.
Repair & Replacement Services: To reduce the effects of unbudgeted repairs, we will
repair or replace failed or worn components to maintain your system in peak operating
condition. Components that are suspected of being faulty may be repaired or replaced in
advance to minimize the occurrence of system interruptions. Labor and materials are included
, as part of this service for the equipment shown in the List of Maintained Equipment.
Emergency Onsite Response. To reduce the costs and disruptions of downtime when an
unexpected problem does occur, we will provide Emergency Onsite Response within 4 hours
upon your notification. We will provide this service between scheduled service calls, Monday
through Friday, 8 a.m. to 5 p.m., to minimize downtime. Non-emergency calls, as determined
by your staff and Siemens will be incorporated into the next scheduled service call.
Documentation & Quality Assurance
Documentation of All Service Provided: We will document each on-site service call and
furnish you with a copy showing time, date, and a brief description of activity. Work orders for
on-site system preventive maintenance will list the inspection date, individual to report to,
equipment identification, equipment location, work to be performed, and any special
instructions.
Quality Assurance Program: We will meet periodically with you to evaluate system
performance and your satisfaction with the quality of service that is being provided under your
Technical Support Program.
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress. CA 90630-5221
Tel: (714) 761-2200
Fax: (714) 761-2134
2
SIEMENS
'-'
....."
Proiect Team
An important benefit of our Technical Support Program derives from having Siemens Building
Technologies personnel familiar with your building systems. Our implementation team
provides thorough, reliable service and scheduling for the support of your system.
The following building professionals will be dedicated to your Technical Support Program:
Joe Wurzel bacher, Sales Account Representative, manages the overall strategic service plan
based upon your current and future service requirements.
Jay Barthel, Service Account Engineer, is responsible for ensuring that our contractual
obligations are delivered, your expectations are being met and you are satisfied with the
delivery of our services.
George Berg, Service Mechanic, is responsible for performing the ongoing pneumatic service in
your facility.
John Gruss, Service Operations Manager, is responsible for managing the delivery of your
entire support program and service requirements.
Customer ResDonse Center
Jill Houlston, Service Coordinator, is responsible for scheduling your preventive maintenance
visits, and handling your emergency situations by taking the appropriate action.
Patti Thompson, Service Administrator, is responsible for all service invoicing including your
Technical Support Program and Time and Material projects.
Special Services
1. Customer will be billed a labor rate of $87.00 per hour on any mechanical work deemed
outside the parameters of this agreement.
2. A discount of 60% off list price for all Siemens/Landis manufactured parts not included
in this agreement.
3. Either party, upon 30 days written notice may terminate this agreement.
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress, CA 90630-5221
Tel: (714) 761-2200
Fax: (714) 761-2134
3
SIEMENS
18
18
18
X~
1
4
1
4
'-'
--'
List of Maintained Eauioment
Receivers Controllers
Temperature Transmitters
Valves
Air Compressor 3j4HP Duplex
Air Dryer
Pneumatic Electric Switches
Limiten
Damper Motors
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress. CA 90630-5221
Tel: (714) 761-2200
Fax: (714) 761-2134
4
SIEME~S BUILDI,NG TECHNOLOGIES, INC.
rfRMs AND CONDITIONS (WID FLS) '-"
Landis Division
'-'
The following terms and conditions are attached to and form an integral part of Siemens Building Technologies, Inc.'s (referred to herein as "SBTI")
Technical Support Program Proposal ("Proposal"). The portions of such Proposal relating to "Scope of Work" or any "Proposed Solution" (in either case,
referred to herein as the "Proposed Solution"), together with these terms and conditions, are collectively referred to as the "TSP Agreement".
Article 1: General
1.1 a) The TSP Agreement, when accepted in writing by the Customer
and approved by an authorized representative of SBTI shall constitute the
entire, complete and exclusive agreement between the parties relating to a
technical support program ("Services") for the equipment and software
identified in the List of Equipment or the Service Coverage Report attached
. to the TSP Agreement ("Equipment") and shall supersede and cancel all
prior agreements and understandings, written or oral, relating to the
subject matter of the TSP Agreement. The TSP Agreement and any rights
or obligations thereunder may not be assigned by either party without the
advance written consent of the other.
(b) The terms and conditions of this TSP Agreement shall not be
modified or rescinded except in writing, signed by a corporate officer of
SBTI. SBTl's performance under this TSP Agreement is expressly
conditioned on Customer's assenting to all of the terms of this TSP
Agreement, notwithstanding any different or additional terms contained in
any writing at any time submitted or to be submitted to SBTI by Customer
relating to this subject matter.
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 TSP Agreement shall automatically renew for successive
one (1) year periods beginning on the anniversary date of the original term
as set forth in the Proposal, unless stated otherwise in the TSP
Agreel)1ent.
1.3 Either party may terminate or amend this TSP Agreement at the
end of the initial term or at the end of a renewal term by giving the other
party at least sixty (60) days prior written notice of such amendments or
intent not to renew.
1.4 If, during or within 90 days after the term of this TSP Agreement,
Customer engages any SBTI employee who has performed Services
under this TSP Agreement, Customer shall pay SBTI an amount equal to
the employee's latest annual salary,
1.5 This TSP Agreement shall be governed by and enforced in
accordance with the laws of the State of Illinois, or if the Services are
provided in Canada, the Province of Ontario. All claims or disputes arising
under this TSP Agreement shall be litigated in the State, Commonwealth,
or Province in which Services are being provided to Customer hereunder.
1.6 The Services are outlined in the attached Proposal's Proposed
Solution provisions, incorporated by reference herein, and shall be
performed on the Equipment during SBTl's normal working hours, Monday
through Friday inclusive, excluding holidays, unless otherwise set forth
herein.
1,7 Customer will at all times designate a contact person with
authority to make decisions for Customer regarding the Services.
Customer will provide SBTI 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 SBTI will, in its discretion, act
accordingly.
1.8 SBTI will be permitted to control andlor operate all Equipment
necessary to perform the Services.
1.9 SBTI will not be required to conduct safety or other tests, install
new devices or equipment or make modifications to any Equipment
beyond the Proposed Solution set forth in this TSP Agreement. Any
Customer request to change the Proposed Solution or the nature of the
Services must be in the form of a mutually agreed change order, effective
only when executed by all parties hereto.
1.10 If the Equipment is altered or moved by any person, including
Customer, other than SBTI or a person authorized by it, Customer shall
immediately notify SBTI in writing, and SBTI reserves the right to perform a
reacceptance test on, or if necessary a recommissioning of, the system at
Customer's expense.
1.11 After any of the following events, SBTI will have no liability or
obligation under this TSP Agreement. whether relating to the testing,
inspection, maintenance or operation of any Equipment, and may
terminate or suspend services under this TSP Agreement immediately
upon giving notice to Customer: Customer fails to (a) authorize a
reacceptance test or recommissioning that SBTI deems necessary; (b)
notify SBTI of any modifications or changes to the Equipment per Section
1.10; (c) notify SBTI of any conditions, malfunctions or changes per
Section 6.2; or (d) provide the access required by Section 6.3.
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 TSP
Agreement or the first scheduled inspection, SBTI will have inspected all the
Equipment.
2.2 If SBTI determines as a result of such inspection that any
Equipment is in need of repair or replacement, the Customer will be so
notified and shall take corrective action within thirty (30) days, or such
Equipment shall be automatically removed from coverage hereunder. SBTI
will not be liable or responsible for the continued testing, maintenance,
repair, replacement or operating capabilities of any portion of the Equipment
until it has been restored to an acceptable initial condition at Customer's sole
expense. Any services provided by SBTI in the course of such restoration
will be separately charged, on a time and materials basis. and not included in
fees paid hereunder. If individual items of Equipment cannot, in SBTl's sole
determination, be properly repaired or replaced due to age, obsolescence,
lack of availability of refrigerant gas, halon gas, necessary parts, materials,
compatibility or otherwise, or as a result of excessive wear or deterioration,
SBTI may, within ten (10) days of such inspection, give written notice that it
is withdrawing such items from coverage under this TSP Agreement and
adjust the amounts to be paid hereunder accordingly.
2,3 If the Proposed Solution provides for maintenance. any repairs and
replacements of Equipment are limited to restoring the proper working
condition of such Equipment. SBTI will not be obligated to provide
replacement Equipment that represents significant capital improvement
compared to the original. Exchanged components become the property of
SBTI, except Hazardous Materials, which will under all circumstances
remain the property and responsibility of Customer.
Article 3: Charges, Fees and Invoices
3.1 Payments to be made under this TSP 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 TSP Agreement;
(b) Services performed other than during SBTI's normal working hours; and
(c) Service performed on equipment not covered by this TSP Agreement.
3.2 Invoices are due upon receipt or otherwise as may be set forth
therein. If any payment is not received when due, SBTI 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. Any amount not paid within sixty
(60) days of the date due shall accrue interest from the date due, until paid,
at the rate of ten percent (10%) per annum. In the event of a dispute by
Customer regarding any portion or all of an invoiced amount, the undisputed
portion shall be paid when due, and interest on the disputed, unpaid portion
shall accrue as aforesaid, from the date due until the date of payment, to the
extent that such amounts are finally determined to be payable to SBTI.
3.3 Customer is responsible for paying any present or future sales, use,
occupancy, excise or other federal. provincial, or local tax due or owing as a
result of this TSP Agreement.
Article 4: Allocation of Risk
4.1 (a) Until one year from either the date hereof or the date the
Equipment is installed, whichever first occurs, all equipment manufactured
by SBTl or bearing its nameplate will be free from defects in material and
workmanship arising from normal use and service.
(b) labor for all Services under this TSP Agreement is warranted for
90 days after the work is performed.
(c) Equipment will not fail to function because of errors in processing,
providing or receiving date or time data involving dates between January 1,
1999 and March 31, 2001, provided other products and software, including the
computer workstation, with which the system interacts properly exchange date
and time data with the system.
4.2 (a) The limited warranties set forth in Section 4.1 will be void as to,
and shall not apply to, any Equipment (i) repaired, altered or improperly
installed by any person other than SBTI or its authorized representative; (ii)
subjected to unreasonable or improper use or storage. used beyond rated
conditions, operated other than per SBTI's or the manufacturer's instructions,
or otherwise subjected to improper maintenance, negligence or accident; (iii)
damaged because of any use of the Equipment after Customer has, or
should have, knowledge of any defect in the Equipment; or (iv) not
FORM HVAC (10/98)
rn<;lnufactured, fabricated and assembled by S8TI or not bearing S8T1's
nemepl;'te: However, SSTI assigns to Customer,''1out recourse, any
anl:l all assignable warranties available from any m~cturer, supplier, or
subcontractor of such Equipment.
(b) Any claim under the limited warranty granted above must be
made in writing to S8TI within thirty (30) days after discovery of the
claimed defect, or with respect only to the warranty set forth in Subsection
4,1 (c) prior to April 1, 2001, unless discovered directly by S8Tl. Such
limited warranty only extends to Customer and not to any subsequent
owner of the Equipment. Customer's sole and exclusive remedy for any
, Equipment or Services not conforming with this limited warranty is limited
to, at S8T1's option, (i) repair or replacement of defective components of
covered Equipment, or (ii) reperformance of the defective portion of the
Services, or (ii) to the extent previously paid, the issuance of a credit or
refund for the original purchase price of such defective component or
potion of the Equipment or Services.
(c) S8TI shall not be required to repair or replace more than the
component(s) of the Equipment actually found to be defective. S8TI's
warranty liability shall not exceed the purchase price of such item.
Repaired or replaced Equipment will be warranted hereunder only for the
remaining portion of the original warranty period.
4,3 THE EXPRESS LIMITED WARRANTIES PROVIDED A80VE
ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES,
STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTA81L1TY OR FITNESS
FOR A PARTICULAR PURPOSE, WHICH ARE HERE8Y EXPRESSLY
DISCLAIMED. S8TI MAKES NO WARRANTY, EXPRESS OR IMPLIED,
THAT ANY EQUIPMENT PROVIDED HEREUNDER WILL PREVENT
ANY LOSS, OR WILL IN ALL CASES PROVIDE THE PROTECTION FOR
WHICH IT IS INSTALLED OR INTENDED. THE LIMITED EXPRESS
WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS TSP
AGREEMENT MAY ONLY 8E MODIFIED OR SUPPLEMENTED IN A
WRITING SIGNED 8Y A DULY AUTHORIZED CORPORATE OFFICER
OF SBT!.
4.4 SBTI will indemnify Customer from and against losses, claims,
expenses and damages (including reasonable attorney's fees) 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. Such indemnification shall be solely to the extent caused by or
arising directly from S8TI's or its employees', consultants' or agents'
negligent acts or omissions or willful misconduct in connection with its
performance of Services hereunder. S8TI's obligations under this
indemnity provision shall not extend to claims, losses, expenses and
damages arising out of or in any way attributable to the negligence of
Customer or its agents, consultants or employees other than S8Tl. S8TI's
liability to Customer or any third party under this Section 4.5 or otherwise
under the TSP Agreement is expressly limited to, and S8TI shall not be
liable other than for the direct losses, claims, expenses and damages
arising as aforesaid. S8TI shall in no event be responsible under this TSP
Agreement for incidental, consequential, punitive, exemplary or special
damages, including without limitation lost profits andlor 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 S8TI has been advised of the possibility of such damages. S8TI
reserves the right to control the defense and settlement of any claim for
which S8TI has an obligation to indemnify hereunder. The parties
acknowledge that the price for which S8TI has agreed to perform its
Services and obligations under this TSP Agreement has been calculated
based upon the foregoing limitations of liability, and that SBTI has
expressly relied on, and would not have entered into this TSP Agreement
but for, such limitations of liability,
Article 5: Environmental
5.1 Except as disclosed pursuant to Section 5.3, Customer
represents that there is no asbestos or any other hazardous or toxic
materials, as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the regulations
promulgated thereunder, and other applicable federal, state or local law
("Hazardous Materials"), present at Customer's locations where Services
are performed. S8TI will notify Customer immediately if it discovers or
suspects the presence of any Hazardous Material. All Services have been
priced and agreed to by SBTI in reliance on Customer's representations as
set forth in this Section 5.1 The presence of Hazardous Materials
constitutes a change in the Proposed Solution equivalent to a change
order whose terms must be agreed to by S8TI before its obligations
hereunder will continue.
5,2 Customer shall be solely responsible for testing, abating,
encapsulating, removing, remedying or neutralizing such Hazardous
Materials, and for the costs thereof. Even if an appropriate change order
has been entered into pursuant to Section 5.1 above, S8TI will continue to
have the right to stop providing Services until the job site is free from
Hazardous Materials. In such event, S8TI will receive an equitable
extension of time to complete its Services, and compensation for delays
caused by Hazardous MatE' ~ remediation.
5.3 Customer warrat<wl that, prior to the execution of the TSP
Agreement, it has notified S8TI in writing of any and all Hazardous Materials
present, potentially present or likely to become present at Customer's
locations and has provided a copy of any jobsite safety policies, including but
not limited to lock-out and tag procedures, laboratory procedures, chemical
hygiene plan, material safety data sheets, and other items covered or
required to be disclosed or maintained by federal, state, or local laws,
regulations or ordinances.
5.4 Customer hereby indemnifies and holds harmless S8TI from and
against any damages, losses, costs, liabilities or expenses arising from
Customer's breach of, or failure to perform its obligations under, Sections
5.1, 5.2 or 5.3 above.
Article 6: Customer Responsibilities
6.1 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. Such Equipment shall
be operated only in the specified operating environment, which shall be
supplied by Customer, including without limitation: (a) suitable electrical
service, including clean, stable, properly conditioned power, to all Equipment;
(b) telephone lines, capacity and connectivity as required by such
Equipment; and (c) heat, light, air conditioning or other environmental
controls, and other utilities in accordance with the specifications for the
Equipment. Failure to so operate the Equipment will terminate immediately
any maintenance obligations S8TI may have hereunder.
6.2 Customer will promptly notify S8TI of any unusual operating
conditions, system malfunctions or building changes that may affect the
Equipment or any Services.
6.3 Customer will provide S8TI 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.
6.4 Customer shall properly dispose of all ballasts, mercury bulb
thermostats, used oil, contaminated filters, contaminated absorbents,
refrigerant and any other Hazardous Materials that at any time are present at
Customer's premises, in accordance with all applicable federal, state, and
local laws, regulations, and ordinances. At no time and under no
circumstances will S8TI be responsible for any such removal or disposal and
Customer hereby indemnifies and holds S8TI harmless from and against
any liability or claim arising therefrom.
6.5 Customer will, if applicable, provide and pay for a dedicated voice
grade dial-up phone line and install a terminal block in a mutually agreed
upon location. All on-line service Equipment (not including the phone line)
will remain the property of S8TI unless otherwise stated herein.
Article 7: Limitations of Maintenance or Service Obligations
7.1 S8TI 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, slats 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. S8TI assumes no responsibility for any service performed on any
Equipment other than by S8TI or its agents.
7.2 S8TI 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 govemment, fire, theft, corrosion, flood,
water damage, lightning, freeze-ups, strikes, lockouts, differences with
workmen, riots, explosions, quarantine restrictions, delays in transportation,
or shortage of vehicles, fuel, labor or materials.
7.3 S8TI 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.
7.4 S8TI shall not be responsible for the removal or reinstallation of
replacement valves, dampers, waterflow and tamper switches required from
pipes and duct work including any venting or draining systems.
FORM HVAC (10/98)
'SIEMENS
'-'
'...,;
Siemens Building Technologies, Inc.
Technical Support Program Proposal
By and Between:
Siemens Building Technologies, Inc.
10775 Business Center Dr.
Cypress, CA 90630
City of Santa Ana
20 Civic Center Plaza
P.o. Box 1988
Santa Ana, CA 92702
Services shall be provided at Santa Ana Ross Annex building located at 20 Civic Center Plaza.
, Siemens Building Technologies shall provide pneumatic preventative maintenance and service
. for the Siemens/Landis pneumatic control system (Siemens-Landis & Gyr-powers) as outlined in
this proposal dated May 30, 2001 and the attached terms and conditions. Four (4) days of
Preventive Maintenance is included.
Duration: This agreement shall remain in effect for an original term of one (1) year beginning
July 1, 2001 with an option to extend for year 2 and year 3.
Charges:
Year 1
$5,572.00
Year 2
$5,572.00
Year 3
$5,864.00
Prices quoted in this proposal are firm for 60 days.
Proposal accepted by:
Proposal submitted by:
City of Santa Ana
Jay Barthel for Joe Wurzelbacher
Account Executive
Signature
Date
57Pa
Date
Siemens Building Technologies, Inc.
EXH\B\T A-3
10775 Business Center Drive
Cypress, CA 90630-5221
Tel: (714) 761-2200
Fax: (714) 761-2134
1
SIEMENS
"-'
'....,;
Technical Support Services Pneumatic
Pneumatic Controls Inspection: We will inspect your pneumatic controls to assess their
condition and performance. By their nature, pneumatic controls drift out of calibration with
changes in mechanical component performance, building use, and climatic conditions. The
inspection program will either confirm proper operation or identify areas that require attention.
We will provide a report of equipment status that will determine any necessary corrective
actions. This service will be performed 4 times per year on the equipment shown in the List of
Maintained Equipment.
Repair & Replacement Services: To reduce the effects of unbudgeted repairs, we will
repair or replace failed or worn components to maintain your system in peak operating
condition. Components that are suspected of being faulty may be repaired or replaced in
advance to minimize the occurrence of system interruptions. Labor and materials are included
as part of this service for the equipment shown in the List of Maintained Equipment.
Emergency Onsite Response. To reduce the costs and disruptions of downtime when an
unexpected problem does occur, we will provide Emergency Onsite Response within 4 hours
upon your notification. We will provide this service between scheduled service calls, Monday
through Friday, 8 a.m. to 5 p.m., to minimize downtime. Non-emergency calls, as determined
by your staff and Siemens will be incorporated into the next scheduled service call.
Documentation & Quality Assurance
Documentation of All Service Provided: We will document each on-site service call and
furnish you with a copy showing time, date, and a brief description of activity. Work orders for
on-site system preventive maintenance will list the inspection date, individual to report to,
equipment identification, equipment location, work to be performed, and any special
instructions.
Quality Assurance Program: We will meet periodically with you to evaluate system
performance and your satisfaction with the quality of service that is being provided under your
Technical Support Program.
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress, CA 90630-5221
Tel: (714) 761-2200
Fax: (714) 761-2134
2
SIEMENS
'-'
'"",.,
Project Team
An important benefit of our Technical Support Program derives from having Siemens Building
Technologies personnel familiar with your building systems. Our implementation team
provides thorough, reliable service and scheduling for the support of your system.
The following building professionals will be dedicated to your Technical Support Program:
Joe Wurzelbacher, Sales Account Representative, manages the overall strategic service plan
based upon your current and future service requirements.
Jay Barthel, Service Account Engineer, is responsible for ensuring that our contractual
obligations are delivered, your expectations are being met and you are satisfied with the
delivery of our services.
George Berg, Service Mechanic, is responsible for performing the ongoing pneumatic service in
your facility.
John Gruss, Service Operations Manager, is responsible for managing the delivery of your
entire support program and service requirements.
Customer ResDonse Center
Jill Houlston, Service Coordinator, is responsible for scheduling your preventive maintenance
visits, and handling your emergency situations by taking the appropriate action.
Patti Thompson, Service Administrator, is responsible for all service invoicing including your
Technical Support Program and Time and Material projects.
Special Services
1. Customer will be billed a labor rate of $87.00 per hour on any mechanical work deemed
outside the parameters of this agreement.
2. A discount of 60% off list price for all Siemens/Landis manufactured parts not included
in this agreement.
3. Either party, upon 30 days written notice may terminate this agreement.
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress, CA 90630-5221
Tel: (114) 761-2200
Fax: (714) 761-2134
3
SIEMENS
,
,
'-'
'-'
List of Maintained EquiDment
1
1
1
86
Temperature Control Panel
2HP Duplex 60 gal. Air Compressor
Receiver Controller
Thermostats
Siemens Building Technologies, Inc.
10775 Business Center Drive
Cypress. CA 90630-5221
Tel: (714) 761-2200
Fax: (714) 761-2134
4
. ..
'-'
.....,
EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its
officers, employees, agents, volunteers and representatives are named as additional insureds
("additional insureds") with regard to liability and defense of suits arising from the operations
and uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
,
.-
(Completion of the following, including countersignature, is required to make this endorsement
effective.)
, this endorsement form as a part of
Effective
Policy #
Issued to
Named Insured
Countersigned by
Authorized Representative
9
SIEMENS BUILDING TECHNOLOGIES, INC.
. ..
TERMS AND CONDITIONS (WIO FLS) '-'
Landis Division
'-'
The following terms and conditions are attached to and form an integral part of Siemens 8uilding Technologies, Inc.'s (referred to herein as "S8TI")
Technical Support Program Proposal {"Proposal"}. The portions of such Proposal relating to "Scope of Work" or any "Proposed Solution" (in either case,
referred to herein as the "Proposed Solution"), together with these terms and conditions, are collectively referred to as the "TSP Agreement".
Article 1: General
1.1 a) The TSP Agreement, when accepted in writing by the Customer
and approved by an authorized representative of S8TI shall constitute the
entire, complete and exclusive agreement between the parties relating to a
technical support program ("Services") for the equipment and software
identified in the List of Equipment or the Service Coverage Report attached
to the TSP Agreement ("Equipment") and shall supersede and cancel all
prior agreements and understandings, written or oral, relating to the
subject matter of the TSP Agreement. The TSP Agreement and any rights
or obligations thereunder may not be assigned by either party without the
advance written consent of the other.
(b) The terms and conditions of this TSP Agreement shall not be
modified or rescinded except in writing, signed by a corporate officer of
S8T1. S8TI's performance under this TSP Agreement is expressly
conditioned on Customer's assenting to all of the terms of this TSP
Agreement, notwithstanding any different or additional terms contained in
any writing at any time submitted or to be submitted to S8TI by Customer
relating to this subject matter.
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 TSP Agreement shall automatically renew for successive
one (1) year periods beginning on the anniversary date of the original term
as set forth in the Proposal, unless stated otherwise in the TSP
Agreement.
1.3 'Either party may terminate or amend this TSP Agreement at the
end of the initial term or at the end of a renewal term by giving the other
party at least sixty (60) days prior written notice of such amendments or
intent not to renew.
1.4 If, during or within 90 days after the term of this TSP Agreement,
Customer engages any S8TI employee who has performed Services
under this TSP Agreement, Customer shall pay S8TI an amount equal to
the employee's latest annual salary.
1.5 This TSP Agreement shall be governed by and enforced in
accordance with the laws of the State of Illinois, or if the Services are
provided in Canada, the Province of Ontario. All claims or disputes arising
under this TSP Agreement shall be litigated in the State, Commonwealth,
or Province in which Services are being provided to Customer hereunder.
1.6 The Services are outlined in the attached Proposal's Proposed
Solution provisions, incorporated by reference herein, and shall be
performed on the Equipment during S8TI's normal working hours, Monday
through Friday inclusive, excluding holidays, unless otherwise set forth
herein,
1,7 Customer will at all times designate a contact person with
authority to make decisions for Customer regarding the Services.
Customer will provide S8TI 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 88TI will, in its discretion, act
accordingly.
1.8 S8TI will be permitted to control andlor operate all Equipment
necessary to perform the Services.
1.9 S8TI will not be required to conduct safety or other tests, install
new devices or equipment or make modifications to any Equipment
beyond the Proposed Solution set forth in this TSP Agreement. Any
Customer request to change the Proposed Solution or the nature of the
Services must be in the form of a mutually agreed change order, effective
only when executed by all parties hereto.
1.10 If the Equipment is altered or moved by any person, including
Customer, other than S8TI or a person authorized by it, Customer shall
immediately notify S8TI in writing, and S8TI reserves the right to perform a
reacceptance test on, or if necessary a recommissioning of, the system at
Customer's expense.
1.11 After any of the following events, S8TI will have no liability or
obligation under this TSP Agreement, whether relating to the testing,
inspection, maintenance or operation of any Equipment, and may
terminate or suspend services under this TSP Agreement immediately
upon giving notice to Customer: Customer fails to (a) authorize a
reacceptance test or recommissioning that S8TI deems necessary; (b)
notify S8TI of any modifications or changes to the Equipment per Section
1.10; {c} notify S8TI of any conditions, malfunctions or changes per
Section 6,2; or (d) provide the access required by Section 6,3.
Article 2: Equipment Testing, Inspection and Maintenance
2,1 The Customer represents that all Equipment is in satisfactory
working condition, 8y the latter of the first thirty (30) days of this TSP
Agreement or the first scheduled inspection, S8TI will have inspected all the
Equipment.
2.2 If S8TI determines as a result of such inspection that any
Equipment is in need of repair or replacement, the Customer will be so
notified and shall take corrective action within thirty (30) days, or such
Equipment shall be automatically removed from coverage hereunder. S8TI
will not be liable or responsible for the continued testing, maintenance,
repair, replacement or operating capabilities of any portion of the Equipment
until it has been restored to an acceptable initial condition at Customer's sole
expense. Any services provided by S8TI in the course of such restoration
will be separately charged, on a time and materials basis, and not included in
fees paid hereunder. If individual items of Equipment cannot, in S8TI's sole
determination, be properly repaired or replaced due to age, obsolescence,
lack of availability of refrigerant gas, halon gas, necessary parts, materials,
compatibility or otherwise, or as a result of excessive wear or deterioration,
S8TI may, within ten (10) days of such inspection, give written notice that it
is withdrawing such items from coverage under this TSP Agreement and
adjust the amounts to be paid hereunder accordingly.
2,3 If the Proposed Solution provides for maintenance, any repairs and
replacements of Equipment are limited to restoring the proper working
condition of such Equipment. S8TI will not be obligated to provide
replacement Equipment that represents significant capital improvement
compared to the original. Exchanged components become the property of
S8TI, except Hazardous Materials, which will under all circumstances
remain the property and responsibility of Customer.
Article 3: Charges, Fees and Invoices
3.1 Payments to be made under this TSP 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 TSP Agreement;
(b) Services performed other than during S8TI's normal working hours; and
(c) Service performed on equipment not covered by this TSP Agreement.
3.2 Invoices are due upon receipt or otherwise as may be set forth
therein. If any payment is not received when due. S8TI 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. Any amount not paid within sixty
(50) days of the date due shall accrue interest from the date due, until paid,
at the rate of ten percent (10%) per annum. In the event of a dispute by
Customer regarding any portion or all of an invoiced amount, the undisputed
portion shall be paid when due, and interest on the disputed, unpaid portion
shall accrue as aforesaid, from the date due until the date of payment, to the
extent that such amounts are finally determined to be payable to S8TI.
3.3 Customer is responsible for paying any present or future sales, use,
occupancy, excise or other federal, provincial, or local tax due or owing as a
result of this TSP Agreement.
Article 4: Allocation of Risk
4.1 (a) Until one year from either the date hereof or the date the
Equipment is installed, whichever first occurs, all equipment manufactured
by S8TI or bearing its nameplate will be free from defects in material and
workmanship arising from normal use and service.
(b) Labor for all Services under this TSP Agreement is warranted for
90 days after the work is performed.
(c) Equipment will not fail to function because of errors in processing,
providing or receiving date or time data involving dates between January 1,
1999 and March 31,2001, provided other products and software, including lhe
computer workstation, wilh which the system interacts properly exchange dale
and time data with the system.
4.2 (a) The limited warranties set forth in Section 4.1 will be void as to,
and shall not apply to. any Equipment (i) repaired, altered or improperly
installed by any person other than S8TI or its authorized representative; (ii)
subjected to unreasonable or improper use or storage, used beyond rated
conditions, operated other than per S8TI's or the manufacturer's instructions,
or otherwise subjected to improper maintenance, negligence or accident; (iii)
damaged because of any use of the Equipment after Customer has, or
should have, knowledge of any defect in the Equipment; or (iv) not
FORM HVAC (10/98)
ma-'-liJfucture-::, fabricated and assembled by SBTI or not bearing SBTl's
namepl(jte \I How~ver, SBTI assigns to Customer'ithout recourse, any
ana all assignable warranties available from any ~.'acturer, supplier, or
subcontractor of such Equipment.
(b) Any claim under the limited warranty granted above must be
made in writing to SBTI within thirty (30) days after discovery of the
claimed defect, or with respect only to the warranty set forth in Subsection
4.1 (c) prior to April 1, 2001, unless discovered directly by SBTI. Such
limited warranty only extends to Customer and not to any subsequent
owner of the Equipment. Customer's sole and exclusive remedy for any
. Equipment or Services not conforming with this limited warranty is limited
to, at SBTl's option, (i) repair or replacement of defective components of
covered Equipment, or (ii) reperformance of the defective portion of the
,Services, or (ii) to the extent previously paid, the issuance of a credit or
refund for the original purchase price of such defective component or
potion of the Equipment or Services,
(c) SBTI shall not be required to repair or replace more than the
component(s) of the Equipment actually found to be defective. SBTl's
warranty liability shall not exceed the purchase price of such item.
Repaired or replaced Equipment will be warranted hereunder only for the
remaining portion of the original warranty period.
4,3 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE
ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES,
STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY
DISCLAIMED. SBTI MAKES NO WARRANTY, EXPRESS OR IMPLIED,
THAT ANY EQUIPMENT PROVIDED HEREUNDER WILL PREVENT
ANY LOSS, OR WILL IN ALL CASES PROVIDE THE PROTECTION FOR
WHICH IT IS INSTALLED OR INTENDED. THE LIMITED EXPRESS
WARRANTIES AND REPRESENTATIONS SET FORTH IN'THIS TSP
AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A
WRITING SIGNED BY A DULY AUTHORIZED CORPORATE OFFICER
OF SBTI.
4.4 SBTI will indemnify Customer from and against losses, claims,
expenses and damages (including reasonable attorney's fees) 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. Such indemnification shall be solely to the extent caused by or
arising directly from SBTl's or its employees', consultants' or agents'
negligent acts or omissions or willful misconduct in connection with its
performance of Services hereunder. SBTl's obligations under this
indemnity provision shall not extend to claims, losses, expenses and
damages arising out of or in any way attributable to the negligence of
Customer or its agents, consultants or employees other than SBTI. SBTl's
liability to Customer or any third party under this Section 4.5 or otherwise
under the TSP Agreement is expressly limited to, and SBTI shall not be
liable other than for the direct losses, claims, expenses and damages
arising as aforesaid. SBTI shall in no event be responsible under this TSP
Agreement for incidental, consequential, punitive, exemplary or special
damages, including without limitation lost profits andlor 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 SBTI has been advised of the possibility of such damages. SBTI
reserves the right to control the defense and settlement of any claim for
which SBTI has an obligation to indemnify hereunder. The parties
acknowledge that the price for which SBTI has agreed to perform its
Services and obligations under this TSP Agreement has been calculated
based upon the foregoing limitations of liability, and that SBTI has
expressly relied on, and would not have entered into this TSP Agreement
but for, such limitations of liability.
Article 5: Environmental
5,1 Except as disclosed pursuant to Section 5.3, Customer
represents that there is no asbestos or any other hazardous or toxic
materials, as defined in the Comprehensive Environmental Respo~se,
Compensation and Liability Act of 1980, as amended, the regulatiOns
promulgated thereunder, and other applicable federal, state or local Jaw
("Hazardous Materials"), present at Customer's locations where Services
are performed. SBTI will notify Customer immediately if it discovers or
suspects the presence of any Hazardous Material. All Services have been
priced and agreed to by SBTI in reliance on Customer's representation~ as
set forth in this Section 5.1 The presence of Hazardous Matenals
constitutes a change in the Proposed Solution equivalent to a change
order whose terms must be agreed to by SBTI before its obligations
hereunder will continue.
5,2 Customer shall be solely responsible for testing, abating,
encapsulating, removing, remedying or neutralizing such Hazardous
Materials, and for the costs thereof. Even if an appropriate change order
has been entered into pursuant to Section 5.1 above. SBTI will continue to
have the right to stop providing Services until ~he job. site is free. from
Hazardous Materials, In such event, SBTI Will receIve an eqUitable
extension of time to complete its Services, and compensation for delays
caused by Hazardous Matf' . 's remediation.
5.3 Customer warr~ that, prior to the execution of the TSP
Agreement, it has notified SBTI in writing of any and all Hazardous Materials
present, potentially present or likely to become present at Customer's
locations and has provided a copy of any jobsite safety policies, including but
not limited to lock-out and tag procedures, laboratory procedures, chemical
hygiene plan, material safety data sheets, and other items covered or
required to be disclosed or maintained by federal, state, or local laws,
regulations or ordinances.
5.4 Customer hereby indemnifies and holds harmless SBTI from and
against any damages, losses, costs, liabilities or expenses arising from
Customer's breach of, or failure to perform its obligations under, Sections
5.1, 5,2 or 5.3 above.
Article 6: Customer Responsibilities
6.1 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. Such Equipment shall
be operated only in the specified operating environment, which shall be
supplied by Customer, including without limitation: (a) suitable electrical
service, including clean, stable, properly conditioned power, to all Equipment;
(b) telephone lines, capacity and connectivity as required by such
Equipment; and (c) heat, light, air conditioning or other environmental
controls, and other utilities in accordance with the specifications for the
Equipment. Failure to so operate the Equipment will terminate immediately
any maintenance obligations SBTI may have hereunder.
6.2 Customer will promptly notify SBTI of any unusual operating
conditions, system malfunctions or building changes that may affect the
Equipment or any Services.
6.3 Customer will provide SBTI 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.
6.4 Customer shall properly dispose of all ballasts, mercury bulb
thermostats, used oil, contaminated filters, contaminated absorbents,
refrigerant and any other Hazardous Materials that at any time are present at
Customer's premises, in accordance with all applicable federal, state, and
local laws, regulations, and ordinances. At no time and under no
circumstances will SBTI be responsible for any such removal or disposal and
Customer hereby indemnifies and holds SBTI harmless from and against
any liability or claim arising therefrom.
6.5 Customer will, if applicable, provide and pay for a dedicated voice
grade dial-up phone line and install a terminal block in a mutually agreed
upon location. All on-line service Equipment (not including the phone line)
will remain the property of SBTI unless otherwise stated herein.
Article 7: Limitations of Maintenance or Service Obligations
7.1 SBTI 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, slats 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. SBTI assumes no responsibility for any service performed on any
Equipment other than by SBTI or its agents.
7.2 SBTI 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, quarantine restrictions, delays in transportation,
or shortage of vehicles, fuel, labor or materials.
7.3 SBTI 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.
7.4 SBTI shall not be responsible for the removal or reinstallation of
replacement valves, dampers, waterflow and tamper switches required from
pipes and duct work including any venting or draining systems.
FORM HVAC (10/98)
'-"
-'
CONSENT CALENDAR
· Agenda items 20.A. (Christy), 31.A. (Bist), 31.B. (Christy) pulled for
separate discussion
· Council member Alvarez abstained on item 20.A.
· Addition of Excused absence - 19.B.
Motion: Approve staff recommendations on the following Consent Calendar
items.
MOTION: Alvarez
SECOND: Franklin
VOTE:
AYES:
Alvarez, Bist, Christy, Franklin, McGuigan,
Solorio (6)
NOES:
None (0)
ABSENT:
Pulido (1)
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............................... ..............................:p......... .P..... ............................... .
ADMINISTRATIVE MATTERS
MINUTES
Motion: Approve minutes. (Items 10.A. and 10.8.)
10.A. ADJOURNED REGULAR MEETING OF JULY 2,2001
10.B. REGULAR MEETING OF JULY 2,2001
ORDINANCES SECOND READING
Motion: Place ordinance on second reading and adopt.
Placed on first reading on July 2, 2001 and approved by a 4-0 vote
(Christy abstained, Pulido and McGuigan absent)
11.A. ZONING ORDINANCE AMENDMENT NO. 2001-05, CONDITIONAL USE
PERMIT NO. 2001-14 AND VARIANCE NO. 2001-03: 1418 NORTH MAIN
STREET
CITY COUNCIL MINUTES
268
JULY 16, 2001
"""
""""
CONSENT CALENDAR
25.1. AGMT NO. 2001-153 - LEASE AGREEMENT - MEXICAN AMERICAN
OPPORTUNITY FOUNDATION - With the Mexican American Opportunity
Foundation for a lease agreement for office space for a one-year period -
Community Development Agency
25.J. AGMT NO. 2001-154 - SYSTEMS ADMINISTRATION SERVICES - With
Daniel Juan for a one-year period in an amount not to exceed $16,370.00
- Community Development Agency
25.K. AGMT NO. 2001-155 - HOUSING OPPORTUNITIES FOR PERSONS
WITH AIDS (HOPWA) PROGRAM - With County of Orange for funding
allocations from the Department of Housing and Urban Development for
the Housing Opportunities for Persons with AIDS program (HOPWA) for
Fiscal Year 2001-2002 in the amount of $828,990.00 - Community
Development Agency
25.L. AGMT NO. 2001-156 - MAINTENANCE SERVICE FOR ENERGY AND
HVAC CONTROL SYSTEMS - CITY HALL, MAIN LIBRARY AND ROSS
ANNEX - With Siemens Building Technologies, Inc. for maintenance and
service for energy and heating ventilating and air conditioning control
systems for a one year period, with a provision for two one-year
extensions in an annual amount not to exceed $16,800.00 - Finance and
Management Services
MISCELLANEOUS - BUDGET
29.A. PAYMENT TO SOUTHERN CALIFORNIA EDISON FOR POWER POLE
RELOCATION
Motion: Authorize.
Payment to Southern California Edison in the amount of $59,775.00 for
the relocation of a power pole located on the east side of Tustin Avenue
south of Seventeenth Street - Public Works Agency
LAND USE MATTERS
CONDITIONAL USE PERMITS
~~~* ooNo(tipNAt~:~0:$:a:~:P~RMjJ~:Nqi:~200~~:~~~:~:$M~~i:Q.~:$Q0lli~:cYPRa:S$
$.t8~:@i
CITY COUNCIL MINUTES
275
JULY 16, 2001
Aft.till.. ~~~C.ERTI fICAT;~,~':I'N:$ f~:B~~'::~ 0 ;7~~M;~~IYY)
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
COMPANIES AFFORDING COVERAGE
PRODUCER
MARSH USA INC,
44 WHIPPANY ROAD
P.O. BOX 1966
MORRISTOWN, NJ 07962-1966
610
COMPANY
A LUMBERMENS MUTUAL CASUALTY COMPANY
100129-BA--
INSURED
SIEMENS BUILDING TECHNOLOGIES, INC.
1000 DEERFIELD PARKYVAY
BUFFALO GROVE, IL 60089-4513
COMPANY
B N/A
COMPANY
C TRAVELERS INDEMNITY CO. OF ILLINOIS
COMPANY
D
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.
CO
LTR
POLICY EFFECTIVE POLICY EXPIRATION
DATE IMM/DDIYYI DATE IMM/DDIYY)
TYPE OF INSURANCE
POLICY NUMBER
A GENERAL LIABILITY 3AA034140-00
X COMMERCIAL GENERAL LIABILITY
CLAIMS MADE [8] OCCUR
OWNER'S & CONTRACTOR'S PROT
10/01/00
10/01/01
C AUTOMOBILE LIABILITY
X ANY AUTO
X ALL OWNED AUTOS
SCHEDULED AUTOS
X HIRED AUTOS
X NON-OWNED AUTOS
TC2J-CAP-229T228-3- TIL-OO
'(AOS)'
TC2E-CAP-229T229-5- TCT -00
'(TX)'
T J-EAP-229T230-2- TIL-OO
'(MA-XS)'
10/01/00
10/01/01
10/01/00
10/01/01
GARAGE LIABILITY
ANY AUTO
EXCESS LIABILITY
C
UMBRELLA FORM
OTHER THAN UMBRELLA FORM
WORKERS COMPENSATION AND
EMPLOYERS' LIABILITY
10/01/01
TRJ-UB-229T226-A-00
'(AZ,HI,OR,MT,NV,WI)'
TC2J-UB-229T225-8-00 (AOS)
10/01/00
THE PROPRIETORl
PARTNERSlEXECUTIVE
OFFICERS ARE:
OTHER
X INCL
10/01/00
10/01/01
EXCL
LIMITS
$
PRODUCTS - COMP/OP AGG $
$
$
$
$
5,000,000
INCL.
1,000,000
1,000,000
1 ,000,000
100,000
1,000,000
GENERAL AGGREGATE
PERSONAL & ADV INJURY
EACH OCCURRENCE
FIRE DAMAGE (Anyone fire)
MED EXP (Anyone person)
COMBINED SINGLE LIMIT
$
BODILY INJURY
(Per person)
$
N/A
BODILY INJURY
(Per accident)
$
N/A
PROPERTY DAMAGE
$
N/A
AUTO ONLY - EA ACCIDENT
OTHER THAN AUTO ONLY:
EACH ACCIDENT
AGGREGATE
EACH OCCURRENCE
AGGREGATE
X STATUTORY LIMITS
EACH ACCIDENT $
DISEASE - POLICY LIMIT $
DISEASE - EACH EMPLOYEE $
1,000,000
1,000,000
1,000,000
DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/SPECIAL ITEMS LIMITS MAY HAVE BEEN REDUCED BY PAID CLAIMS AND MAY HAVE DEDUCTlBLES OR RETENTIONS.
E: 610-MB-1522, 610-MB-1523, 610-MB-1524
HE CITY OF SANTA ANA, ITS OFFICERS, EMPLOYEES, AGENTS, VOLUNTEERS AND REPRESENTATIVES ARE INCLUDED AS ADDITIONAL
NSUREDS UNDER THE REFERENCED GENERAL LIABILITY AND AUTOMOBILE LIABILITY INSURANCE POLICIES, BUT ONLY WITH RESPECT TO ALL
ORK PERFORMED BY AND ON BEHALF OF THE NAMED INSURED, SIEMENS BUILDING TECHNOLOGIES, INC. FOR CERTIFICATE HOLDER UNDER
CITY OF SANTA ANA
ATTN: MARIO GHIZZI
P.O. BOX 1988
SANTA ANA, CA 92702
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE INSURANCE COMPANY WILL~lfO MAIL
3~ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
XBlIXlEll\lIIlllBIIllDGIllUlX'lllXQ["ltKXREl)S'~l(J<lMeOOe()'DQlBIaGAt1lX")()8:XIABlDIXXXlF
XlUI)()()(KIfH)(X)(J8OJ(XXDlIXXI!:!l~XXlaXXlWSII<IlS(X)()ft(X'ffil"""""-"'1UCJlDflES.
PRODUCER
MARSH USA INC.
44 WHIPPANY ROAD
P.O. BOX 1966
MORRISTOWN, NJ 07962-1966
DATE (MMIODIYY)
.,09,1:1.0/01
COMPANIES AFFORDING COVERAGE
COMPANY
E
COMPANY
F
100129-BA-
610
INSURED
SIEMENS BUILDING TECHNOLOGIES, INC.
1000 DEERFIELD PARKWAY
BUFFALO GROVE, IL 60089-4513
COMPANY
G
COMPANY
H
CONTINUED FROM DESCRIPTION SECTION:
CONTRACT.
,
,
E
CITY OF SANTA ANA
ATTN: MARIO GHIZZI
P.O. BOX 1988
SANTA ANA, CA 92702
INCLUDES COPYRIGHTED MATERIAL OF ACORD CORPORATION WITH ITS PERMISSION.
SEP-18-01 ruE 01:22 PM MAR~SA INC
FAX NO. 973 2~730
P. 03
.\
"
,- 5E:P 18 ~la1 \as I S? F'R TRAI..ELERS ~cePTION
SEp..j2-2001 t.I~U jj:jO 11l'l jlrl,,~rl Vl.lLo1l1 wll.Y 86a 2'(7 e142 TO ;)219'732928730 F".el2rta2
.
, ADDITIONAL INSURED ENDO~EMENT
lnsll'enc:IJ CDn\p8ny ~:J:~vBle%:s Indemnity CQ. ,of :r11~noiS
Thill dal8lment madlftes 5udI1nNnI1I il aifordlli by th(e plOViSlOns of PoIlliY
t .Tr,.T ..t"A P_"? 'rtl:;)~ ~relatinQ 1Gb faJawing: ,
,,:'OD
1, the Cily of e... Ans, 2D eM, 0.". ~Iua. Slnta AnI. Cllffcmia
S21C1a ItJ Gfft~ an1P!DyPe. ..,ra MId VGJunIM" II~ Il8IMd u Idd!baellnsureda
r~ lrlsutedl-> \Vittl ~ ic ~ and defens1J or tuba lIf.r,,~ trern the
a~f:f'ItjQ"'lIh" Udt ~ b,GI'Clft blMn'ot'lIIe nlmeJ:llft'llLlred.
2. Wflh mspa. .imllrtsing aut gf1he oparatians and uStJ$ P.I!~ by
or en behalf or"B named tnSJn!ld, SlIt" lnWl'Il1ClI .. " affortled by W. po1Icy is
..rimlllry and is 1M itddftioNl tg ~ l'JlJIliI1butil'la wltb ~ other lnU1.lranc:. CBrrfrd by or far
;tie t11118fJt af the ctddlUanaJ ........1. '
~. Th" m:sUrMCB Ippllel ~ tD eadl ,~uflld agaJnst wharn cfaim Is
made Q~ DUIt 15 bmaght exI2pt WIh ruS3lCt" the ~Y'J ~111i8 Gf Jiqbmi)'. 1he
InclUsian of In, J;1erIOn or a~n as an IrllUn.f .~.1I ,. attecl tI1Y rl,ght Whi;h
suen ~" or DI9ani'tati;r, \!DU1d M"'.. clBimsnt It Mt ao IncaJdtd.
4. Wrfh 1IIS,1Id to thB Icfdanal f.r11U1'8ds. 1his InlUtlra ahat not be
~\edl Gt rn@Inally rfHtu,* In c:DWmge tJr "milS IIXCIpt .."thJrty (aD) d~ys Wri.n
MIIce = b..n glVln 10 the CIJ of s.rrta An.~ 20 CMe CDI'l2r PIlla, $md... AnI,
c.aUfDmJa 92702.
(cam"lrtlon cf the foUcwfns. IftclUdlllg ~atrJ!8, II rI~uiJ'8d ta make Ws
ArUlCUMrnltnt effIc:IVI.)
iifdve 1 01' , 0 0 ,lnra end~1lm'n .$ il_oF
PDllcy#T,C':J,T_t'l,."_ "g'r',~aJt~~tt._ ~
IaJLl8if ~ siemens Bu,11ciing 'l'eehnolog1Gt$, :r::a~.
---&
.. NIIY'Ied ,...U,..
fa 1\:\;1 eOLJnl8l'9IQned by
1\.5 'to
'n?1?LO~D
,~ ~--
SiORC'f<-
- '-\~ to'. ~ttonV~~
tCIW
r"'l ot-3)
~'d t;.:',j. 'ON
2"d SSS'ON
~!'t :It ~~Ia?;.S 'c13S
Wdl0:ll l002"l2"d3S
REQUEST FOR
COUNCIL ACTION
'-"
~
~
.....J
CITY COUNCIL MEETING DATE:
CLERK OF COUNCIL USE ONLY:
JULY 16, 2001
TITLE:
AGREEMENT FOR MAINTENANCE AND
SERVICE OF CITY HALL, MAIN
LIBRARY AND ROSS ANNEX,
ENERGY, HEATING VENTILATING
AND AIR CONDITIONING SYSTEMS
/J
/
/'
APPROVED
g! As Recommended
o As Amended
o Ordinance on 151 Reading
o Ordinance on 2nd Reading
o Implementing Resolution
o Set Public Hearing For
CONTINUED TO
FILE NUMBER
A-2001-156
RECOMMENDED ACTION
Direct the City Attorney to prepare and authorize the Mayor and the Clerk
of the Council to execute an agreement with Siemens Building Technologies,
Inc. for maintenance and service for energy and heating ventilating and
air condi tioning control systems of City Hall, Main Library and Ross
Annex for a one year period, with a provision for two one-year extensions,
in an annual amount not to exceed $16,800.
DISCUSSION
The Santa Ana City Hall, Main Library and Ross Annex which encompass a
total of 227,950 square feet, all have similar heating, ventilating and
air conditioning control systems designed and built by Siemens Building
Technologies. The City Hall and Main Library buildings have older systems
that have been maintained by Siemens Building Technologies, the sole
manufacturer of these systems, which has provided excellent service and
reliability. The systems in the Ross Annex were designed and built with
the newest Siemens Building Technology.
The proposed agreement with Siemens Building Technology will include
quarterly preventive maintenance and corrective maintenance to the systems.
Further, this agreement will include regular service Monday through Friday,
8AM to 5PM and on site response within the next business day.
FISCAL IMPACT
Funds are available in the Building Maintenance Fund, Maintenance and
Repair Building and Grounds account (73-105-6261).
~~~)
Rod R. Coloma, E~ec. Director
Finance & Mngt. Agency
Page 61
25. L.