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5.
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Availability of Funds.
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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.
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6.
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Relationship of Parties.
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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.
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7.
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Hold Harmless.
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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.
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8.
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Assignability and Subcontracting.
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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.
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9.
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Insurance.
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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.
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A.
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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.
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B.
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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.
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Such insurance shall include:
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1)
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Comprehensive General Liability . . . . . . . . . . . . . . .
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$1,000,000
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2)
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Motor Vehicle Liability Insurance . . . . . . . . . . . . . . .
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$1,000,000
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3)
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Professional Liability . . . . . . . . . . . . . . . . . . . . . . . . .
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$1,000,000
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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.
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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.
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10.
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Compliance with Laws; Payment of Permits/Licenses.
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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.
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11.
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Non-Discrimination.
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A.
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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.
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B.
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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.
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C.
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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.
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D.
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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:
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1)
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termination of this Agreement;
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2)
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disqualification of the Contractor from bidding on or being awarded a County contract for a period of up to 3 years;
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3)
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liquidated damages of $2,500 per violation;
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4)
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imposition of other appropriate contractual and civil remedies and sanctions, as determined by the County Manager.
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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.
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E.
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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.
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F.
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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.
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G.
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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.
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12.
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Retention of Records, Right to Monitor and Audit.
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(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.
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13.
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Merger Clause.
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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.
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14.
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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.
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\15.
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Notices.
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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:
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In the case of County, to:
San Mateo County
Information Services Department
Chris Flatmoe, CIO/Director
455 County Center, Third Floor
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In the case of Contractor, to:
Johnson Controls, Inc.
Steve Sandoval, Account Executive/Security
3526 Breakwater Court
Hayward, CA 94545
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IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have affixed their hands.
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COUNTY OF SAN MATEO
A Political Subdivision of the
State of California
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By:
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Rose Jacobs Gibson, President, Board of Supervisors,
San Mateo County
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Date:
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ATTEST:
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By:
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Clerk of Said Board
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JOHNSON CONTROLS, INC.
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By:
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(Printed Name)
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Date:
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EXHIBIT A - SERVICES
AGREEMENT BETWEEN COUNTY OF SAN MATEO
AND JOHNSON CONTROLS, INC.
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In consideration of the payments set forth in Exhibit “B”, Contractor shall provide the following services:
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1.
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SCOPE OF WORK.
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Contractor shall provide maintenance support including monitoring, repair, inspection and/or response services for the County’s Cardkey Security System.
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Contractor shall perform/provide Basic Coverage (8 a.m. to 5 p.m.) maintenance including scheduled service visits and scheduled service materials, at the following locations:
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• 555 County Center, Redwood City
• Forensics Lab at 50 Tower Road, San Mateo
• Youth Services Center, San Mateo
• HSA at 271 92nd Street, Daly City
• HSA at 400 Harbor Street, Belmont
• HSA at 1487 Huntington, South San Francisco
• HSA at 550 Quarry Road, Belmont
• HSA at 350 90th Street, Daly City
• HSA at 2500 Middlefield Road, Redwood City
• HSA at 2415 E. University, East Palo Alto – (1 Year Warranty)
• Central Courts at 800 N. Humboldt, San Mateo
• North Courts at 1050 Mission South San Francisco
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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.
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Contractor shall perform/provide Premium Coverage (7/24) maintenance including scheduled service visits, scheduled service materials, repair labor, and repair materials, at the following locations:
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• 455 County Center, Redwood City
• Canyon Oaks Youth Center at 400 Edmonds Road, Redwood City
• 400 County Center, Redwood City
• Parking Garage North of 555 County Center, Redwood City
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County locations that have Premium 7/24 Coverage will be able to reach a technician 24 hours a day and have a technician onsite within 6 hours.
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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 the County if Contractor finds any Covered Equipment not in working order or in need of repair. With the County’s approval, Contractor will perform the work necessary to put the Covered Equipment in proper working condition subject to the terms and conditions of this Agreement. This work will be done at Contractor’s standard fee for parts and labor in effect at that time. If the County does not want Contractor to do the work identified by Contractor, or 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.
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Contractor’s services under this Agreement do not include:
• Supplies, accessories, or any items normally consumed during the use of Covered Equipment, such as ribbons, bulbs, and paper
• Calls resulting from lack of operator-level preventative maintenance, site-related problems, or operator error
• Service Calls due to failure resulting from acts of God, abuse or misuse of equipment, or alterations, modifications, or repair to equipment not performed or provided by Contractor
• The furnishing of materials and supplies for painting or refinishing equipment
• Electrical work to the County’s facility necessary because of equipment
• Service Calls resulting from attachments made to Covered Equipment or other equipment not covered by the Agreement
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• The repair or replacement of the following if not normally replaced or maintained on a scheduled basis: wire in conduit or the like, buried cable/transmission lines
• Service Calls resulting from the effects of erosion, corrosion, acid cleaning, or damage from unexpected or especially severe freezing weather that is beyond what is prevented by Contractor’s normal maintenance
• Work caused by any operation of, adjustments to, or repair to, Covered Equipment by others not authorized in advance by Contractor
• Work caused by the negligence of others, including but not limited to equipment operators and water treatment companies
• Service Calls due to failures caused by improper environmental conditions affecting equipment or electrical power fluctuations, if due to conditions beyond Contractor’s control, and service calls required because Contractor had previously been denied access to the equipment
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Covered sites, as listed above, refer to the equipment for which services are to be provided under this Agreement (referred to in this Agreement as “Equipment”). Covered Equipment is defined under Exhibit A.
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Equipment Failure refers to the sudden and accidental failure of moving parts, electric, or electronic components that are part of the Covered Equipment and that are necessary for its operation.
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Scheduled Service Visits include materials required to perform Scheduled Service Visits on Covered Equipment.
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Scheduled Service Materials include materials required to perform Scheduled Service Visits on Covered Equipment.
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Repair Labor includes labor necessary to restore Covered Equipment to working condition following an Equipment Failure and excludes total equipment replacement due to obsolescence or unavailability of parts.
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Repair Materials include materials necessary to restore Covered Equipment to working condition following an Equipment Failure and excludes total equipment replacement due to obsolescence or unavailability of parts. At Contractor’s option, Repair Materials may be new, used, or reconditioned.
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The methods and techniques used to provide services to the County are within the Contractor’s discretion, but subject to County Information Services Department’s technology policies, guidelines, and requirements. The amount of time, specific hours, and location of the performance of Contractor’s services is also left to the Contractor’s discretion provided that Contractor coordinates with County departments as needed.
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EXHIBIT B – PAYMENTS AND RATES
AGREEMENT BETWEEN COUNTY OF SAN MATEO
AND JOHNSON CONTROLS, INC.
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In consideration of the services provided by Contractor in Exhibit “A”, County shall pay Contractor based on the following fee schedule:
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1.
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SCHEDULE OF CHARGES.
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555 County Center, Redwood City $8,122
Forensics Lab at 50 Tower Road, San Mateo $5,722
Youth Services Center, San Mateo $8,428
HSA at 271 92nd Street, Daly City $2,431
HSA at 400 Harbor Street, Belmont $2,840
HSA at 1487 Huntington, South San Francisco $1,634
HSA at 550 Quarry Road, Belmont $3,185
HSA at 350 90th Street, Daly City $1,455
HSA at 2500 Middlefield Road, Redwood City $2,033
HSA at 2415 E. University, East Palo Alto – (1 Year Warranty) $3,365
Central Courts at 800 N. Humboldt, San Mateo $6,724
North Courts at 1050 Mission, South San Francisco $13,673
455 County Center, Redwood City $34,378
Canyon Oaks Youth Center at 400 Edmonds Road, Redwood City $6,431
400 County Center, Redwood City $21,188
Parking Garage North of 555 County Center, Redwood City $11,986
TOTAL $133,595
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Contractor will be paid in two semi-annual payments of $66,797.50.
The County will submit payment within thirty (30) days of receipt of invoice conditioned upon the approval of work performed during the billing cycle.
In no event shall total payment exceed an amount of ONE HUNDRED THIRTY THREE THOUSAND FIVE HUNDRED NINETY FIVE DOLLARS ($133,595). The County will have the right to withhold payment if the County determines that the quantity or quality of work performed is unacceptable.
Contractor agrees that the requirements of this Agreement pertaining to the protection of proprietary rights and confidentiality shall survive termination of this Agreement.
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