FIRST AMENDMENT

AGREEMENT BETWEEN JOHNSON CONTROLS, INC.

AND THE COUNTY OF SAN MATEO

 

This First Amendment to the Agreement entered into on the 4th day of November, 2003, by and between JOHNSON CONTROLS, INC., hereinafter called "CONTRACTOR" and the COUNTY OF SAN MATEO, a political subdivision of the State of California, hereinafter called "COUNTY."

 

W I T N E S S E T H :

 

WHEREAS, the parties previously entered into an Agreement [Resolution No. 66340] on November 4, 2003 for provision of installation and maintenance of a Security Management System located at the Burlingame Health Center, 1100 Trousdale Drive, Burlingame; and

 

WHEREAS, it is now the mutual desire and intent of the parties to make modifications and amendments providing for a 12-month extension of the term from October 31, 2004 to October 31, 2005 ; and

 

NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES that the existing Agreement is hereby amended, by reference to Sections of the original Agreement and Exhibits as follows:

   

1.

Section 1. Exhibits, of the Agreement is hereby amended to add the following:

 

Exhibit C - Terms and Conditions

   

2.

Section 3. Payments, of the Agreement is hereby amended to read as follows:

 

In consideration of the services provided by Contractor in accordance with all terms, conditions and specifications set forth herein and in Exhibit A and C, County shall make payment to Contractor based on the rates and in the manner specified in Exhibit B. The County reserves the right to withhold payment if the County determines that the quantity or quality of the work performed is unacceptable. In no event shall the County’s total fiscal obligation under this Agreement exceed ONE HUNDRED FIFTY-FOUR THOUSAND NINE HUNDRED AND FIFTY-ONE DOLLARS, $154,951.

   

3.

Section 4. Term and Termination, of the Agreement, the first sentence is hereby amended to read as follows:

 

Subject to compliance with all terms and conditions, the term of this Agreement shall be from November 1, 2003 through October 31, 2005.

   

4.

Section 7. Hold Harmless, of the Agreement is hereby replaced in its entirety with the following:

 

Contractor agrees to indemnify, defend, and hold County and its owners, officers, directors, employees, and agents, harmless from any and all claims, suits, demands, costs, fines, penalties, legal expenses, or any other actions of any kind or nature resulting from: [a] any breach or default by Contractor of any obligation to be performed by Contractor pursuant to the terms of this Agreement with County; or [b] injury to any person (including, but not limited to bodily injury, mental anguish or death) or damages to any property, caused by or arising from the negligent or intentional acts or omissions of Contractor or its agents, employees, or representatives with respect to the goods and/or services supplied by Contractor to County pursuant to this Agreement, unless any of such claims or damages were also caused by or the result of negligent or intentional acts or omissions of County, its agents, employees, representatives, other subcontractors, or other persons acting on behalf of or at the request of County, in which case the principles of comparative fault and indemnity shall be applied to equitably apportion indemnity.

 

5.

Exhibit C, Terms and Conditions, is hereby added to the Agreement and attached hereto.

 

6.

These amendments are hereby incorporated and made a part of the Original Agreement and subject to all provisions therein.

 

IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have affixed their hands.

 
 

COUNTY OF SAN MATEO

A Political Sub-division of the

State of California

 
 

By:

  
   

President, Board of Supervisors

 
 

Date:

    
 

ATTEST:

   

By:

    
 

Clerk of Said Board

  
 
 

JOHNSON CONTROLS, INC.

   
 

By:

  
     
 

Date:

    
 
 
 
 

EXHIBIT C - TERMS AND CONDITIONS

AGREEMENT BETWEEN COUNTY OF SAN MATEO

AND JOHNSON CONTROLS, INC.

 

By accepting this amendment, Purchaser agrees to be bound by the following terms and conditions:

 

1.

Scope of Work. This contract is based upon the use of straight time labor only. Plastering, patching and painting are excluded. “In-line” duct and piping devices, including, but not limited to, valves, dampers, humidifiers, wells, taps, flow meters, orifices, etc., if required hereunder to be furnished by Johnson, shall be distributed and installed by others under Johnson’s supervision but at no additional cost to Johnson. Purchaser agrees to provide Johnson with required field utilities (electricity, toilets, drinking water, project hoist, elevator service, etc.) without charge. Johnson agrees to keep the job site clean of debris arising out of its own operations. Purchaser shall not back charge Johnson for any costs or expenses without Johnson’s written consent.

 

2.

Unless specifically noted in the statement of the scope of work or services undertaken by Johnson under this agreement, Johnson’s obligations under this agreement expressly exclude any work or service of any nature associated or connected with the identification, abatement, clean up, control, removal, or disposal of environment Hazards or dangerous substances, to include but not limited to asbestos or PCBs, discovered in or on the premises. Any language or provision of the agreement elsewhere contained which may authorize or empower the Purchaser to change, modify, or alter the scope of work or services to be performed by Johnson shall not operate to compel Johnson to perform any work relating to Hazards without Johnson’s express written consent.

3.

Materials. If the materials or equipment included in this contract become temporarily or permanently unavailable for reason beyond the control and without the fault of Johnson, then in the case of such temporary unavailability, the time for performance of the work shall be extended to the extent thereof, and in the case of permanent unavailability, Johnson shall (a) be excused from furnishing said materials or equipment, and (b) be reimbursed for the difference between the cost of the materials or equipment permanently unavailable and the cost of a reasonably available substitute therefore.

4.

Warranty. Johnson warrants that the equipment manufactured by it shall be free from defects in material and workmanship arising from normal usage for a period of one (1) year from completed installation and sign-off by County of said equipment. Johnson warrants that for equipment furnished and/or installed but not manufactured by Johnson, Johnson will extend the same warranty terms and conditions which Johnson receives from the manufacturer of said equipment.

For equipment installed by Johnson, if Purchaser provides written notice to Johnson of any such defect within thirty (30) days after the appearance or discovery of such defect, Johnson shall, at its option, repair or replace the defective equipment. For equipment not installed by Johnson, if Purchaser returns the defective equipment to Johnson within thirty (30) days after appearance or discovery of such defect, Johnson shall, at its option, repair or replace the defective equipment and return said equipment to Purchaser. All transportation charges incurred in connection with the warranty for equipment not installed by Johnson shall be borne by Purchaser. The warranties do not extend to any equipment which has been repaired by others, abused, altered or misused, or which has not been properly and reasonably maintained. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE.

5.

Mutual Waiver of Consequential Damages. The parties hereto waive all claims against each other for any special, indirect, or consequential damages arising out of or relating to this agreement Contract. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination of the Contract in accordance with its terms.

6.

Taxes. The price of this contract does not include duties, sales, use, excise, or other similar taxes, unless required by federal, state or local law. Purchaser shall pay, in addition to the stated price, all taxes not legally required to be paid by Johnson or, alternatively, shall provide Johnson with acceptable tax exemption certificates. Johnson shall provide Purchaser with any tax payment certificate upon request and after completion and acceptance of work.

7.

Force Majeure. Neither party will be responsible to the other for damages, loss, injury, or delay caused by conditions that are beyond the reasonable control, and without the intentional misconduct or negligence, of that party. Such conditions include, but are not limited to: acts of God; acts of government agencies; earthquakes, floods; strikes; labor disputes; fire; explosions or other casualties; terrorism; thefts; vandalism or other third party criminal acts; riots; war; or unavailability of parts, materials or supplies.

8.

Compliance with Laws. Johnson shall comply with all applicable federal, state and local laws and regulations and shall obtain all temporary licenses and permits required for the prosecution of the work.

Licenses and permits of a permanent nature shall be procured and paid for by the Purchaser.

9.

Insurance. Insurance coverage in excess of Johnson’s standard limits will be furnished when requested and required. No credit will be given or premium paid by Johnson for insurance afforded by others.

10.

Occupational Safety and Health. The Parties hereto agree to notify each other immediately upon becoming aware of an inspection under, or any alleged violation of, the Occupational Safety and Health Act relating in any way to the project site.

11.

Entire Agreement. This contract, upon acceptance, shall constitute the entire agreement between the parties and supersedes any prior representations or understandings.

12.

Changes. No change or modification of any of the terms and conditions stated herein shall be binding upon Johnson unless accepted by Johnson in writing.