5.

Availability of Funds.

The County may terminate this Agreement or a portion of the services referenced in the Attachments and Exhibits based upon unavailability of Federal, State, or County funds, by providing written notice to Contractor as soon as is reasonably possible after the County learns of said unavailability of outside funding.

6.

Relationship of Parties.

Contractor agrees and understands that the work/services performed under this Agreement are performed as an independent contractor and not as an employee of the County and that Contractor acquires none of the rights, privileges, powers, or advantages of County employees.

7.

Hold Harmless.

Contractor shall indemnify and save harmless County, its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description, brought for, or on account of: (A) injuries to or death of any person, including Contractor, or (B) damage to any property of any kind whatsoever and to whomsoever belonging, (C) any sanctions, penalties, or claims of damages resulting from Contractor’s failure to comply with the requirements set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended, or (D) any other loss or cost, including but not limited to that caused by the concurrent active or passive negligence of County, its officers, agents, employees, or servants, resulting from the performance of any work required of Contractor or payments made pursuant to this Agreement, provided that this shall not apply to injuries or damage for which County has been found in a court of competent jurisdiction to be solely liable by reason of its own negligence or willful misconduct.

The duty of Contractor to indemnify and save harmless as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code.

8.

Assignability and Subcontracting.

Contractor shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required by Contractor under this Agreement without the prior written consent of County. Any such assignment or subcontract without the County’s prior written consent shall give County the right to automatically and immediately terminate this Agreement.

9.

Insurance.

The Contractor shall not commence work or be required to commence work under this Agreement unless and until all insurance required under this paragraph has been obtained and such insurance has been approved by County’s Risk Manager, and Contractor shall use diligence to obtain such insurance and to obtain such approval. The Contractor shall furnish the Information Services Department with certificates of insurance evidencing the required coverage, and there shall be a specific contractual liability endorsement extending the Contractor's coverage to include the contractual liability assumed by the Contractor pursuant to this Agreement. These certificates shall specify or be endorsed to provide that thirty (30) days' notice must be given, in writing, to the Chief Information Officer of any pending change in the limits of liability or of any cancellation or modification of the policy.

A.

Worker's Compensation and Employer's Liability Insurance. The Contractor shall have in effect, during the entire life of this Agreement Workers' Compensation and Employer's Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor certifies, as required by Section 1861 of the California Labor Code, that it is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of the Code, and Contractor will comply with such provisions before commencing the performance of the work of this Agreement.

B.

Liability Insurance. The Contractor shall take out and maintain, during the life of this Agreement, such Bodily Injury Liability and Property Damage Liability Insurance as shall protect Contractor while performing work covered by this Agreement from any and all claims for damages for bodily injury, including accidental death, as well as any and all claims for property damage which may arise from Contractor’s operations under this Agreement, whether such operations be by Contractor or by any sub-contractor or by anyone directly or indirectly employed by either of them. Such insurance shall be combined single limit bodily injury and property damage for each occurrence and shall be not less than the amount specified below.

Such insurance shall include:

1)

Comprehensive General Liability . . . . . . . . . . . . . . .

$1,000,000

2)

Motor Vehicle Liability Insurance . . . . . . . . . . . . . . .

$1,000,000

3)

Professional Liability . . . . . . . . . . . . . . . . . . . . . . . . .

$1,000,000

County and its officers, agents, employees, and servants shall be named as additional insured on any such policies of insurance, which shall also contain a provision that the insurance afforded thereby to the County, its officers, agents, employees, and servants shall be primary insurance to the full limits of liability of the policy, and that if the County or its officers and employees have other insurance against the loss covered by such a policy, such other insurance shall be excess insurance only.

In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, the County of San Mateo, at its option may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.

10.

Compliance with Laws; Payment of Permits/Licenses.

All services to be performed by Contractor pursuant to this Agreement shall be performed in accordance with all applicable Federal, State, County, and municipal laws, ordinances, and regulations, including, but not limited to, Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended, and the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1973, as amended and incorporated by reference herein as Attachment “I,” which prohibits discrimination on the basis of handicap in programs and activities receiving any Federal or County financial assistance. Such services shall also be performed in accordance with all applicable ordinances and regulations, including, but not limited to, appropriate licensure, certification regulations, provisions pertaining to confidentiality of records, and applicable quality assurance regulations.

In the event of a conflict between the terms of this Agreement and State, Federal, County, or municipal law or regulations, the requirements of the applicable law will take precedence over the requirements set forth in this Agreement.

Contractor will timely and accurately complete, sign, and submit all necessary documentation of compliance.

11.

Non-Discrimination.

A.

Section 504 applies only to Contractors who are providing services to members of the public. Contractor shall comply with §504 of the Rehabilitation Act of 1973, which provides that no otherwise qualified handicapped individual shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in the performance of this Agreement.

B.

General non-discrimination. No person shall, on the grounds of race, color, religion, ancestry, gender, age (over 40), national origin, medical condition (cancer), physical or mental disability, sexual orientation, pregnancy, childbirth or related medical condition, marital status, or political affiliation be denied any benefits or be subjected to discrimination under this Agreement.

C.

Equal employment opportunity. Contractor shall ensure equal employment opportunity based on objective standards of recruitment, classification, selection, promotion, compensation, performance evaluation, and management relations for all employees under this Agreement. Contractor’s equal employment policies shall be made available to County of San Mateo upon request.

D.

Violation of non-discrimination provisions. Violation of the non-discrimination provisions of this Agreement shall be considered a breach of this Agreement and subject the Contractor to penalties, to be determined by the County Manager, including but not limited to:

1)

termination of this Agreement;

2)

disqualification of the Contractor from bidding on or being awarded a County contract for a period of up to 3 years;

3)

liquidated damages of $2,500 per violation;

4)

imposition of other appropriate contractual and civil remedies and sanctions, as determined by the County Manager.

To effectuate the provisions of this section, the County Manager shall have the authority to examine Contractor’s employment records with respect to compliance with this paragraph and/or to set off all or any portion of the amount described in this paragraph against amounts due to Contractor under this Agreement or any other Contract between Contractor and County.

Contractor shall report to the County Manager the filing by any person in any court of any complaint of discrimination or the filing by any person of any and all charges with the Equal Employment Opportunity Commission, the Fair Employment and Housing Commission, or any other entity charged with the investigation of allegations within 30 days of such filing, provided that within such 30 days such entity has not notified Contractor that such charges are dismissed or otherwise unfounded. Such notification shall include the name of the complainant, a copy of such complaint, and a description of the circumstance. Contractor shall provide County with a copy of their response to the Complaint when filed.

E.

Compliance with Equal Benefits Ordinance. With respect to the provision of employee benefits, Contractor shall comply with the County Ordinance which prohibits contractors from discriminating in the provision of employee benefits between an employee with a domestic partner and an employee with a spouse.

F.

The Contractor shall comply fully with the non-discrimination requirements required by 41 CFR 60-741.5(a), which is incorporated as if fully set forth herein.

12.

Compliance with Contractor Employee Jury Service Ordinance

Contractor shall comply with the County Ordinance with respect to provision of jury duty pay to employees and have and adhere to a written policy that provides that its employees shall receive from the Contractor, on an annual basis, no less than five days of regular pay for actual jury service in San Mateo County. The policy may provide that employees deposit any fees received for such jury service with the Contractor or that the Contractor deduct from the employees’ regular pay the fees received for jury service.

13.

Retention of Records, Right to Monitor and Audit

a) Contractor shall maintain all required records for three (3) years after the County makes final payment and all other pending matters are closed, and shall be subject to the examination and/or audit of the County, a Federal grantor agency, and the State of California.

(b) Reporting and Record Keeping: Contractor shall comply with all program and fiscal reporting requirements set forth by appropriate Federal, State and local agencies, and as required by the County.

(c) Contractor agrees to provide to County, to any Federal or State department having monitoring or review authority, to County's authorized representatives, and/or their appropriate audit agencies upon reasonable notice, access to and the right to examine all records and documents necessary to determine compliance with relevant Federal, State, and local statutes, rules and regulations, and this Agreement, and to evaluate the quality, appropriateness, and timeliness of services performed.

14.

Merger Clause.

This Agreement, including the Exhibits and Attachments attached hereto and incorporated herein by reference, constitutes the sole Agreement of the parties hereto and correctly states the rights, duties, and obligations of each party as of this Agreement's date. Any prior agreement, promises, negotiations, or representations between the parties not expressly stated in this document are not binding. All subsequent modifications shall be in writing and signed by the parties. In the event of a conflict between the terms, conditions, or specifications set forth herein and those in Exhibits "A" and “B” attached hereto, the terms, conditions, or specifications set forth herein shall prevail.

15.

Controlling Law.

The validity of this Agreement and of its terms and provisions, as well as the rights and duties of the parties hereunder, the interpretation, and performance of this Agreement shall be governed by the laws of the State of California.

16.

Notices.

Any notice, request, demand, or other communication required or permitted hereunder shall be deemed to be properly given when deposited in the United State mail, postage prepaid, or when deposited with a public telegraph company for transmittal, charges prepaid, addressed to:

In the case of County, to:

San Mateo County

Information Services Department

Chris Flatmoe, CIO/Director

455 County Center, Third Floor

Redwood City, CA 94063

In the case of Contractor, to:

Steve Sandoval, Account Executive / Security
Johnson Controls Inc.

3526 Breakwater Court

Hayward, CA 94545

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

COUNTY OF SAN MATEO

A Political Subdivision of the

State of California

By:

Jerry Hill, President

Board of Supervisors, San Mateo County

Date:

ATTEST:

By:

Clerk of Said Board

JOHNSON CONTROLS INC.

By:

(Printed Name)

Date:

EXHIBIT A - SERVICES

AGREEMENT BETWEEN COUNTY OF SAN MATEO

AND JOHNSON CONTROLS, INC.

In consideration of the payments set forth in Exhibit “B”, Contractor shall provide the following services:

1.

SCOPE OF WORK

Provide proprietary maintenance support for the County’s cardkey security system.

A.

County Buildings

1)

Hardware and software maintenance support:

Basic

8-5

Premium 7/24

-

21 Tower Road

$2,630

-

555 County Center

$7,810

-

455 County Center

$33,377

-

Youth Crisis

$6,244

-

400 County Center

$20,571

-

Parking Garage

$11,637

-

Juvenile Hall

$1,349

-

Forensics Lab

$5,555

1050 Mission North Courts

$13,275

92^nd Street

$2,360

400 Harbor Blvd (H.S.A.)

$2,757

1487 Huntington (H.S.A.)

$1,586

550 Quarry Road (H.S.A.)

$3,092

350 90^th Street

$1,413

2500 Middlefield Road (H.S.A.)

$1,974

2415 E. University (H.S.A.)

SUBTOTAL

$47,068

$71,829

SUBTOTAL

4% DISCOUNT

TOTAL

$118,897

$4,755

$114,122

Service Coverage Options.

a) BASIC COVERAGE includes Scheduled Service Visits, plus Scheduled Service Materials if elsewhere noted in this Agreement, for covered Equipment.

b) PREMIUM LEVEL COVERAGE includes BASIC COVERAGE as well as Repair Labor, plus Repair Material if elsewhere noted in this Agreement, for covered Equipment.

c) PRIME LEVEL COVERAGE includes BASIC COVERAGE as well as Repair Labor, plus Repair Materials if elsewhere set forth in this Agreement, for Covered Equipment consisting of centrifugal, absorption, or screw chillers. PRIME LEVEL COVERAGE also includes Repair Labor, and Repair Materials if otherwise set forth in this Agreement, for diagnosed imminent equipment failure as well as actual Equipment Failure. PRIME LEVEL COVERAGE includes the following services:

1. Contractor will analyze diagnostic tests including Pre-Vue Vibration Analysis, spectrochemical oil analysis, and megohm readings. All diagnostic tests must be performed at Contractor prescribed frequencies and to Contractor specified test standards. If elsewhere noted in this Agreement, coverage will include Repair Labor and Repair Material for heat exchanger tubes if an Eddy Current Analysis, acceptable to Contractor, has been performed in the three years prior to this Agreement and is provided to Contractor, or such a test will be performed as part of the Agreement.

2. Should Contractor’s analysis suggest the existence of the possibility of equipment deterioration outside anticipated or acceptable conditions, Contractor may at its option take corrective steps necessary to prevent further deterioration or breakdown of the Covered Equipment. Contractor retains sole judgment over whether equipment conditions are considered acceptable, whether corrective steps should be taken, or what steps, if any, need to be taken. Performance of any corrective steps under this PRIME coverage is not a guarantee that Equipment Failure or downtime will not occur.

d) EXTENDED SERVICE includes extended service for repairs and is available only if the County has PREMIUM or PRIME coverage. The price for Extended Service, if chosen by the County, is part of the total price of the Agreement.

A. INITIAL EQUIPMENT INSPECTION FOR PREMIUM OR PRIME COVERAGES. Contractor will inspect the Covered Equipment within 45 days of the date of this Agreement or as seasonal or operational conditions permit. Contractor will advise County if Contractor finds any Covered Equipment not in working order or in need of repair. With the Customer’s approval, Contractor will perform the work necessary to put the Covered Equipment in proper working condition. This work will be done at Contractor’s standard fee for parts and labor in effect at that time. If the County does not have the work done, the equipment will be removed from the list of Covered Equipment and the price of this Agreement will then be adjusted.

B. WARRANTY. Contractor warrants that its services will be provided in a good and professional manner and that parts repaired or replaced by Contractor will be free from defects in design and material until the end of this Agreement. Contractor’s sole obligation shall be to repair or to replace defective parts or to properly redo defective services. CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES ON THE EQUIPMENT FURNISHED UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

C. SCOPE OF SERVICE. County understands that Contractor is a provider of services under this Agreement. Contractor shall not be considered a merchant or a vendor of goods. If Contractor installs or furnishes a piece of equipment under this Agreement, and that equipment is covered by a warranty from the manufacturer, Contractor will transfer the benefits of that manufacturer’s warranty to County if this Agreement with County terminates before the equipment manufacturer’s warranty expires.

D. CUSTOMER OBLIGATIONS AND COMMITMENTS TO JCI

1. The County warrants that, to the best of its knowledge, all Covered Equipment is in good working condition and that the County has given Contractor all information of which County is aware concerning the condition of the Covered Equipment.

2. The Customer agrees that during the term of this Agreement the County will:

a) operate the Covered Equipment according to the manufacturer’s recommendations;

b) keep accurate and current work logs and information on the Covered Equipment as recommended by the manufacturer;

c) provide an adequate environment for Covered Equipment as recommended by the manufacturer or as recommended by Contractor, including adequate space, electrical power, air conditioning, and humidity control;

d) notify Contractor immediately of any equipment malfunction, breakdown, or other condition affecting the operation of the Covered Equipment;

e) allow Contractor to start and stop, periodically turn off, or otherwise change or temporarily suspend equipment operations so that Contractor can perform the services required under this Agreement; and

f) provide proper condenser and boiler water treatment, as necessary, for the proper functioning of Covered Equipment, if such services are not Contractor’s responsibility under this Agreement.

3. The County acknowledges that its failure to meet these obligations will relieve Contractor of any responsibility for any equipment breakdown, or any necessary repair or replacement, of any equipment.

Maintenance.

a) As part of the service, the Contractor shall provide remedial maintenance services, including any necessary parts, on the Contractor’s equipment when notified that the equipment is malfunctioning or inoperative.

b) County locations that have Basic 8-5 Coverage maintenance shall be provided said service between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday, excluding the Contractor’s recognized holidays or as otherwise specified in this Agreement. Response time for this service is no later than 2 hours by phone and next business day onsite.

c) County locations that have Premium 7/24 Coverage will be able to reach a Johnson Controls Technician 24 hours a day and have a technician onsite within 6 hours.

d) Maintenance service shall not include the following:

1. Electrical work external to the equipment or repair of damage or replacement of parts resulting from failure of electrical power or air conditioning.

2. Repair or replacement of damaged parts resulting from catastrophe, accident, neglect, misuse of equipment, or unauthorized modifications, repairs of reinstallation of the equipment by Customer.

3. Any system, operations malfunction or failure not attributable to the furnished equipment.

4. Services requested and provided outside of the period specified in subparagraph (b) above.

5. Relocation or reinstallation of equipment.

e) At the County’s request, Contractor may provide services not included in the regular maintenance service at the published billable rates in effect at the time the labor and parts are furnished. Labor charges shall include travel time to and from installation site and shall be computed to the nearest one-half (1/2) hour with a minimum charge per call based upon a two (2) hour period. Travel expenses shall be billable at Contractor’s then current published rates and terms, or if commercial transportation is used, at the actual cost of such commercial transportation. Other travel costs, such as per diem, lodging, parking, and tolls shall be invoiced to the County as incurred. Published billable rates will be sent to the County’s Project Manager whenever a change is made to the rates for labor and parts.

f) Title to all equipment and parts provided for repair or maintenance under this Agreement shall pass to the County upon completion of the repairs for which they were used.

g) The County shall perform such routine maintenance as keeping the equipment clean, replacing printer and typewriter ribbons and paper, and cleaning the magnetic tape heads, but shall not attempt major maintenance or equipment repair.

h) Software upgrades are limited to Contractor’s application software and firmware required to address system faults which prevent meeting operations specifications. In the case of an upgrade that requires a new operation system, licensing or hardware compatibility is not covered under the maintenance agreement.

EXHIBIT B – PAYMENTS AND RATES

AGREEMENT BETWEEN COUNTY OF SAN MATEO

AND JOHNSON CONTROLS, INC.

In consideration of the services provided by Contractor in Exhibit “A”, County shall pay Contractor based on the following fee schedule:

1.

SCHEDULE OF CHARGES.

Contractor will be paid a total of $114,122 in two semi-annual payments of $57,061. County will submit payment to Contractor within thirty days from the date of receipt of invoice.

EXHIBIT C - TERMS AND CONDITIONS

AGREEMENT BETWEEN COUNTY OF SAN MATEO

AND JOHNSON CONTROLS, INC.

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

1.

Equipment. It is agreed between the County of San Mateo Information Services Department known herein as “County” and Johnson Controls, Inc., herein known as “Contractor” that in consideration of the payments set forth herein, Contractor shall perform services for County in accordance with the terms, conditions, and specifications set forth herein and in exhibits hereto for the County. Contractor agrees to maintain the equipment described in maintenance agreement in accordance with the terms and conditions of this Agreement. Contractor will notify the County within 90 days of any and all product “service life” termination in order that the County may make arrangements to include this in future budget considerations.

2.

Unless specifically noted in the statement of the scope of work or services undertaken by Contractor under this Agreement, Contractor’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 environmental hazards or dangerous substances, to include but not be 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 County to change, modify, or alter the scope of work or services to be performed by Contractor shall not operate to compel Contractor to perform any work relating to hazards without Contractor’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 Contractor, 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, Contractor 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. Contractor 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 delivery of said equipment, or if installed by Contractor, for a period of two (2) years from installation. Contractor warrants that for equipment furnished and/or installed but not manufactured by Contractor, Contractor will extend the same warranty terms and conditions which Contractor receives from the manufacturer of said equipment.

For equipment installed by Contractor, if County provides written notice to Contractor of any such defect within thirty (30) days after the appearance or discovery of such defect, Contractor shall, at its option, repair or replace the defective equipment. For equipment not installed by Contractor, if County returns the defective equipment to Contractor within thirty (30) days after appearance or discovery of such defect, Contractor shall, at its option, repair or replace the defective equipment and return said equipment to County. All transportation charges incurred in connection with the warranty for equipment not installed by Contractor shall be borne by County. 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 parties’ termination of the Agreement 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. County shall pay, in addition to the stated price, all taxes not legally required to be paid by Contractor or, alternatively, shall provide Contractor with acceptable tax exemption certificates. Contractor shall provide County 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. Contractor shall comply with all applicable federal, state, and local laws and regulations and shall obtain all temporary licenses and permits required for the performance of the work.

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

9.

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.

10.

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