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046-21 - Otis Elevator Company - Contract
CITY OF PORT ORCHARD PURCHASED SERVICE AGREEMENT THIS Agreement ("Agreement") is made effective as of the 25th day of May, 2021, by and between the City of Port Orchard, a municipal corporation, organized under the laws of the State of Washington, whose address is: CITY OF PORT ORCHARD, WASHINGTON (hereinafter the "CITY") 216 Prospect Street Port Orchard, Washington 98366 Contact: Mayor Robert Putaansuu Phone: 360.876.4407 Fax: 360.895.9029 and Otis Elevator CompanX a Corporation (describe the type of organization, whether corporation, sole proprietorship, etc.), organized under the laws of the State of Washington, doing business at: Otis Elevator Comp anX (hereinafter the "VENDOR") 3315 S. 1161h St. #149 Seattle, WA 98168 Contact: Becky MacCamy Phone: 206.243.8100 Email: Becky.MacCamygotis.com for ordinary maintenance services performed in connection with the following: City Hall Elevator Maintenance TERMS AND CONDITIONS 1. Services by Vendor. A. The Vendor shall perform the services described in the Scope of Work attached to this Agreement as Exhibit "A." The services performed by the Vendor shall not exceed the Scope of Work without prior written authorization from the City. B. The City may from time to time require changes or modifications in the Scope of Work. Such changes, including any decrease or increase in the amount of compensation, shall be agreed to by the parties and incorporated in written amendments to the Agreement. C. This Agreement shall commence on June 1, 2021, ("Commencement Date") and shall terminate June 1, 2026, unless extended or terminated in writing as provided herein. The Contract will automatically be renewed every five (5) years for an additional five (5) years on the termination date unless terminated by either party by giving written notice to the other party at least ninety (90) days, but no more than 120 days prior to the end of the current five (5) year term. Additionally, the City reserves the rights to review the Agreement at regular intervals to assure the quality of services provided by the Vendor. City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevator\2021\Contract\C046-21- Draft.docx Rev 4/10/2020 1 of 11 D. Unless otherwise specified in the attached Scope of Work, all tools, equipment, supplies, chemicals or any other materials necessary for the completion of the services described in the Scope of Work shall be provided by the Vendor. E. The Vendor shall report any damage or potential hazard involving City property immediately to the City of Port Orchard Public Works Department or in the case of an emergency by calling 911. Hazardous conditions shall be immediately remedied or secured by the Vendor to prevent further damage and/or to protect the public from injury. F. Any incidents, accidents, or altercations with members of the public or with City staff shall be immediately reported to the City of Port Orchard Public Works Department. The City's Public Works Director may require a written report describing the incident or accident. G. The Vendor shall remedy, in a timely manner, and at its expense, any damage to City property due to the negligence of the Vendor or the Vendor's employees. 2. Schedule of Work. A. The Vendor shall perform the services described in the scope of work in accordance with the Schedule attached to this contract as Exhibit "A." If delays beyond the Vendor's reasonable control occur, the parties will negotiate in good faith to determine whether an extension is appropriate. B. The Vendor is authorized to proceed with services upon receipt of a written Notice to Proceed. 3. Compensation. I LUMP SUM. Compensation for these services shall be a Lump Sum of $ TIME AND MATERIALS NOT TO EXCEED. Compensation for these services shall not exceed $10,000.00 without written authorization and will be based on billing rates and reimbursable expenses attached hereto as Exhibit "A". ❑ TIME AND MATERIALS. Compensation for these services shall be on a time and materials basis according to the list of billing rates and reimbursable expenses attached hereto as Exhibit LG f3 ❑ OTHER. 4. Payment. A. The Vendor shall maintain time and expense records and provide them to the City monthly after services have been performed, along with monthly invoices in a format acceptable to the City for work performed to the date of the invoice. B. All invoices shall be paid by City warrant within thirty (30) days of receipt of a complete invoice. If the City objects to all or any portion of any invoice, it shall so notify the Vendor of the same within fifteen (15) days from the date of receipt and shall pay that portion of the invoice not in dispute, and the parties shall immediately make every effort to settle the disputed portion. City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevator\2021\Contract\C046-21- Draft.docx Rev 4/10/2020 2of11 C. The Vendor shall keep cost records and accounts pertaining to this Agreement available for inspection by City representatives for six (6) years after final payment unless a longer period is required by a third -party agreement. Copies shall be made available on request. D. If the services rendered do not meet the requirements of this Agreement, the Vendor will correct or modify the work to comply with this Agreement. The City may withhold payment for such work until the work meets the requirements of the Agreement. 5. Discrimination and Compliance with Laws A. The Vendor agrees not to discriminate against any employee or applicant for employment or any other person in the performance of this Agreement because of race, creed, color, national origin, marital status, sex, age, disability, or other circumstance prohibited by federal, state, or local law or ordinance, except for a bona fide occupational qualification. B. Even though the Vendor is an independent contractor with the authority to control and direct the performance and details of the work authorized under this Agreement, the work must meet the approval of the City and shall be subject to the City's general right of inspection to secure the satisfactory completion thereof. C. The Vendor agrees to comply with all federal, state and municipal laws, rules and regulations, including but not limited to all health and safety regulations applicable to the work that are now effective or become applicable within the term(s) of this Agreement to the Vendor's business, equipment and personnel engaged in operations covered by this Agreement or accruing out of the performance of such operations. The Vendor shall comply with all federal and state laws applicable to independent contractors, including, but not limited to, the Washington State Worker's Compensation and Unemployment Insurance laws, and maintenance of a separate set of books and records that reflect all items of income and expenses of the Vendor's business, pursuant to Revised Code of Washington (RCW) 51.08.195, as required by law, to show that the services performed by the Vendor under this Agreement shall not give rise to an employer -employee relationship between the parties, which is subject to Title 51 RCW, Industrial Insurance. D. The Vendor shall comply with prevailing wage requirements under Washington law. See, Prevailing Wage Addendum to this Agreement. E. The Vendor shall obtain a City of Port Orchard business license prior to commencing work pursuant to a written Notice to Proceed. F. Violation of this Paragraph 5 shall be a material breach of this Agreement and grounds for cancellation, termination, or suspension of this Agreement by the City, in whole or in part, and may result in ineligibility for further work for the City. 6. Relationship of Parties. The parties intend that an independent contractor -client relationship will be created by this Agreement. As the Vendor is customarily engaged in an independently established trade which encompasses the specific service provided to the City hereunder, no agent, employee or representative of the Vendor shall be or shall be deemed to be the employee, agent or representative of the City. In the performance of the work, the Vendor is an independent contractor with the ability to control and direct the performance and details of the work, the City being interested only in the results obtained City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevator\2021\Contract\C046-21- Draft.docx Rev 4/10/2020 3of11 under this Agreement. None of the benefits provided by the City to its employees, including but not limited to compensation, insurance, and unemployment insurance, are available from the City to the employees, agents or representatives of the Vendor. The Vendor will be solely and entirely responsible for its acts and for the acts of its agents, employees, representatives and sub -consultants during the performance of this Agreement. The City may, during the term(s) of this Agreement, engage other independent contractors to perform the same or similar work that the Vendor performs hereunder. 7. Suspension and Termination of Agreement A. Termination without cause. This Agreement may be terminated by the City at any time for public convenience, for the Vendor's insolvency or bankruptcy, or the Vendor's assignment for the benefit of creditors. B. Termination with cause. The Agreement may be terminated upon the default of the Vendor and the failure of the Vendor to cure such default within a reasonable time after receiving written notice of the default. C. Rights Upon Termination. 1. With or Without Cause. Upon termination for any reason, all finished or unfinished documents, reports, or other material or work of the Vendor pursuant to this Agreement shall be submitted to the City, and the Vendor shall be entitled to just and equitable compensation for any satisfactory work completed prior to the date of termination, not to exceed the total compensation set forth herein. The Vendor shall not be entitled to any reallocation of cost, profit or overhead. The Vendor shall not in any event be entitled to anticipated profit on work not performed because of such termination. The Vendor shall use its best efforts to minimize the compensation payable under this Agreement in the event of such termination. Upon termination, the City may take over the work and prosecute the same to completion, by contract or otherwise. 2. Default. If the Agreement is terminated for default, the Vendor shall not be entitled to receive any further payments under the Agreement until all work called for has been fully performed. Any extra cost or damage to the City resulting from such default(s) shall be deducted from any money due or coming due to the Vendor. The Vendor shall bear any extra expenses incurred by the City in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained, by the City by reason of such default. D. Suspension. The City may suspend this Agreement, at its sole discretion. Any reimbursement for expenses incurred due to the suspension shall be limited to the Vendor's reasonable expenses, and shall be subject to verification. The Vendor shall resume performance of services under this Agreement without delay when the suspension period ends. E. Notice of Termination or Suspension. If delivered to the Vendor in person, termination shall be effective immediately upon the Vendor's receipt of the City's written notice or such date as stated in the City's notice of termination, whichever is later. Notice of suspension shall be given to the Vendor in writing upon one week's advance notice to the Vendor. Such notice shall indicate the anticipated City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevator\2021\Contract\C046-21- Draft.docx Rev 4/10/2020 4ofII period of suspension. Notice may also be delivered to the Vendor at the address set forth in Section 14 herein. 8. Standard of Care. The Vendor represents and warrants that it, and the Vendor's employees, have the requisite training, skill and experience necessary to provide the services under this Agreement and are appropriately accredited and licensed by all applicable agencies and governmental entities. Services provided by the Vendor and the Vendor's employees under this Agreement will be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing in similar circumstances. The Vendor and the Vendor's employees shall conduct themselves in a professional manner at all times when on site. The Vendor's employees shall wear clothing and/or a uniform which clearly identifies them as an employee of the Vendor. The Vendor further represents and warrants that it shall provide proper supervision for any employees utilized to perform the services herein and shall ensure that all employees are properly trained and qualified. The Vendor shall ensure that all workplace safety requirements of state or federal law are strictly observed at all times. The Vendor warrants that all employees have been trained to comply with state and federal standards (including but not limited to standards for handling chemicals, WISHA and OSHA) relevant to the duties to be performed in accordance with the Scope of Work. 9. Ownership and Use of Documents. All records, files, documents, drawings, specifications, data or information, regardless of form or format, and all other materials produced by the Vendor in connection with the services provided to the City, shall be the property of the City whether finished or not and also whether the project for which they were created is executed or not. 10. Work Performed at the Vendor's Risk. The Vendor shall take all precautions necessary and shall be responsible for the safety of its employees, agents and representatives in the performance of the work hereunder, and shall utilize all protection necessary for that purpose. All work shall be done at the Vendor's own risk, and the Vendor shall be responsible for any loss or damage to materials, tools, or other articles used or held by the Vendor for use in connection with the work. 11. Indemnification. The Vendor shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorneys' fees, arising out of or in connection with the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. The City's inspection or acceptance of any of the Vendor's work when completed shall not be grounds to avoid any of these covenants of indemnification. Nothing in this Agreement shall be construed as creating a liability or right of indemnification in any third party. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Vendor and the City, its officers, officials, City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevator\2021\Contract\C046-21- Draft.docx Rev 4/10/2020 5of11 employees, agents and volunteers, the Vendor's liability hereunder shall be only to the extent of the Vendor's negligence. The provisions of this section shall survive the expiration or termination of this Agreement. IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE VENDOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. THE VENDOR'S WAIVER OF IMMUNITY UNDER THE PROVISIONS OF THIS SECTION DOES NOT INCLUDE, OR EXTEND TO, ANY CLAIMS BY THE VENDOR'S EMPLOYEES DIRECTLY AGAINST THE VENDOR. 12. Insurance. The Vendor shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Vendor, its agents, representatives, or employees. A. Minimum Scope of Insurance Vendor shall obtain insurance of the types described below: 1. Automobile Liability insurance covering all owned, non -owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 or a substitute form providing equivalent liability coverage and shall cover liability arising from premises, operations, independent contractors and personal injury and advertising injury. The City shall be named by endorsement as an additional insured under the Vendor's Commercial General Liability insurance policy with respect to the work performed for the City. 3. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4. Professional Liability insurance appropriate to the Vendor's profession if applicable. B. Minimum Amounts of Insurance Vendor shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. Workers' Compensation Employer's Liability each accident $1,000,000. Employer's Liability Disease each employee $1,000,000, and Employer's Liability Disease — Policy Limit $1,000.00. City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevator\2021\Contract\C046-21- Draft.docx Rev 4/10/2020 6of11 4. Professional Liability insurance shall be written with limits no less than $1,000,000 per claim and $1,000,000 policy aggregate limit. C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability and Commercial General Liability insurance (as applicable to each line of coverage): The Vendor's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Consultant's insurance and shall not contribute with it. 2. The Vendor shall provide thirty (30) days written notice by certified mail, return receipt requested, to the City prior to the cancellation or alteration of coverage. The City will not waive its right to subrogation against the Vendor. The Vendor's insurance shall be endorsed to waive the right of subrogation against the City, or any self-insurance, or insurance pool coverage maintained by the City. 4. If coverage is written on a "claims made" basis, then a minimum of a three (3) year extended reporting period shall be included with the claims made policy, and proof of this extended reporting period provided by the City. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage The Vendor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Vendor before commencement of the work. 13. Assigning or Subcontracting. The Vendor shall not assign, transfer, subcontract or encumber any rights, duties, or interests accruing from this Agreement without the express prior written consent of the City, which consent may be withheld in the sole discretion of the City. 14. Notice. Any notices required to be given by the City to the Vendor or by the Vendor to the City shall be in writing and delivered to the parties at the following addresses: Robert Putaansuu Mayor 216 Prospect Street Port Orchard, WA 98366 Phone: 360.876.4407 Fax: 360.895.9029 City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevator\2021\Contract\C046-21- Draft.docx VENDOR Attn: Otis Elevator Compony 3315 S. 116' St. #149 Seattle, WA 98168 Phone: 206.243.8100 Fax: 206.248.6401 Rev 4/10/2020 7of11 15. Resolution of Disputes and Governing Law. A. Should any dispute, misunderstanding or conflict arise as to the terms and conditions contained in this Agreement, the matter shall first be referred to the Mayor, who shall determine the term or provision's true intent or meaning. The Mayor shall also decide all questions which may arise between the parties relative to the actual services provided or to the sufficiency of the performance hereunder. B. If any dispute arises between the City and the Vendor under any of the provisions of this Agreement which cannot be resolved by the Mayor's determination in a reasonable time, or if the Vendor does not agree with the Mayor's decision on a disputed matter, jurisdiction of any resulting litigation shall be filed in Kitsap County Superior Court, Kitsap County, Washington. C. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In any suit or action instituted to enforce any right granted in this Agreement, the substantially prevailing party shall be entitled to recover its costs, disbursements, and reasonable attorneys' fees from the other parry. 16. General Provisions. A. Non -waiver of Breach. The failure of either party to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein contained in one or more instances, shall not be construed to be a waiver or relinquishment of said covenants, agreements, or options, and the same shall be in full force and effect. B. Modification. No waiver, alteration, modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the City and the Vendor. C. Severability. The provisions of this Agreement are declared to be severable. If any provision of this Agreement is for any reason held by a court of competent jurisdiction to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other provision. D. Entire Agreement. The written provisions of this Agreement, together with any Exhibits and Addenda attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner whatsoever, the Agreement or the Agreement documents. The entire agreement between the parties with respect to the subject matter hereunder is contained in this Agreement, the Exhibits and Addenda attached hereto, which may or may not have been dated prior to the execution of this Agreement. All of the above documents are hereby made a part of this Agreement and form the Agreement document as fully as if the same were set forth herein. Should any language in any of the Exhibits or Addenda to this Agreement conflict with any language contained in this Agreement, then this Agreement shall prevail. 17. Title VI City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevator\2021\Contract\C046-21- Draft.docx Rev 4/10/2020 8of11 The City of Port Orchard, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the Department of Transportation issued pursuant to such Act, must affirmatively insure that its contracts comply with these regulations. Therefore, during the performance of this Agreement, the Vendor, for itself, its assignees, and successors in interest agrees as follows: 1. Compliance with Regulations: The Vendor will comply with the Acts and the Regulations relative to Nondiscrimination in Federally -assisted programs of the U.S. Department of Transportation, Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made a part of this Agreement. 2. Nondiscrimination: The Vendor, with regard to the work performed by it during this Agreement, will not discriminate on the grounds of race, color, national origin, sex, age, disability, income - level, or LEP in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Vendor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations as set forth in Appendix A, attached hereto and incorporated herein by this reference, including employment practices when this Agreement covers any activity, project, or program set forth in Appendix B of 49 C.F.R. part 21. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the Vendor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Vendor of the Vendor's obligations under this Agreement and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP. 4. Information and Reports: The Vendor will provide all information and reports required by the Acts, the Regulations and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of the Vendor is in the exclusive possession of another who fails or refuses to furnish the information, the Vendor will so certify to the City or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. Sanctions for Noncompliance: In the event of the Vendor's noncompliance with the Non- discrimination provisions of this Agreement, the City will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: 1. withholding payments to the Vendor under the Agreement until the Vendor complies; and/or 2. cancelling, terminating, or suspending the Agreement, in whole or in part. 6. Incorporation of Provisions: The Vendor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Vendor will take action with respect to any subcontract or procurement as the City or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevator\2021\Contract\C046-21- Draft.docx Rev 4/10/2020 9of11 Vendor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Vendor may request the City to enter into any litigation to protect the interests of the City. In addition, the Vendor may request the United States to enter into the litigation to protect the interests of the United States. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year set forth above. CITY OF PORT ORCHARD, WASHINGTON Robert Putaansuu, Mayor ATTES THE A By: d tti san, MMC, City Clerk APPROVED AS TO FORM: By: Charlotte A. Archer, City Attorney City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevalor\2021\Contract\C046-21- Draft.docx VENDOR By: Av Name: cKt rrynIII Title: es Manager The undersigned has been granted specific authority only to sign this contract subject to the Otis acknowledgement #C046-21 attached hereto and made part hereof. 10of1I Rev 4/10/2020 APPENDIX A During the performance of this Agreement, the Vendor, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non -Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 C.F.R. Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 C.F.R. Part 27; • The Age Discrimination Act of 1975, as amended, (42 U .S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 USC§ 471, Section 4 7123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub - recipients and contractors, whether such programs or activities are Federally funded or not); • Titles 11 and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.P.R. parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to -ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). City of Port Orchard and Otis Elevator Company Purchased Service Contract No. C046-21 Public Works Project No. PW2021-014 UA4_Facilities\B_CityHall(216_Prospect)\Elevator\2021\Contract\C046-21- Draft.docx Rev 4/10/2020 11 of 11 DATE: 03/25/2021 TO: Engineering -Building -Planning 216 Prospect Street Port Orchard, WA 98366 EQUIPMENT LOCATION: PORT ORCHARD CITY HALL 216 Prospect Street Port Orchard, WA 98366 PROPOSAL NUMBER: AQ5645 EQUIPMENT DESCRIPTION: No Of Units Type Of Units HYDRAULIC Manufacturer OTIS ELEVATOR COMPANY FROM: Otis Elevator Company 3315 S. 116th St. #149 Seattle, WA 98168 Gregory Norris Phone: (206) 243-8100 Fax:(206) 248-6401 Customer Designation ELV 1 Machine Number 475133 OTIS MAINTENANCE We propose to furnish Otis Maintenance on the equipment ("Units") described above. Otis Maintenance is a full preventive maintenance service intended to protect your investment, extend equipment life, and provide a high level of performance and reliability. OTIS MAINTENANCE MANAGEMENT SYSTEMSM We will use the Otis Maintenance Management System preventive maintenance program to deliver service tailored to your specific building needs. Equipment type, component life, equipment usage, and building environment will be taken into account by the OMMS® scheduling system, which will be used to plan maintenance activities in advance. The Units will be provided with devices to monitor equipment usage. We will use OMMS standard work processes developed and continuously improved by Otis. Under this Contract, we will maintain the Units on the following terms and conditions. - PERFORMANCE MAINTENANCE We will maintain the Units using trained personnel directly employed and supervised by us. The maintenance will include inspection, lubrication, and adjustment of the following parts: ■ Controller parts, selectors and dispatching equipment, relays, solid-state components, transducers, resistors, condensers, power amplifiers, transformers, contacts, leads, dashpots, timing devices, computer and microcomputer devices, steel selector tapes, mechanical and electrical driving equipment, signal lamps, and position indicating equipment. ■ Door operators, car door hangers, car door contacts, door protective devices, load weighing equipment, car frames, car safety mechanisms, platforms, car and counterweight guide shoes including rollers and gibs, and emergency car lighting. ■ Hoistway door interlocks and hangers, bottom door guides, and auxiliary door closing devices. ■ Machines, worms, gears, thrust bearings, drive sheaves, drive sheave shaft bearings, brake pulleys, brake coils, © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved LiNX Form MNT-OM (01/30/13) Proposal#: AQ5645 Page 1 of 9 contacts, linings, and component parts. ■ Motors, brushes, brush holders, and bearings. ■ Governor components, governor sheaves and shaft assemblies, bearings, contacts, governor jaws, deflector or secondary sheaves, car and counterweight buffers, car and counterweight guide rails, car and counterweight sheave assemblies, top and bottom limit switches, governor tension sheave assemblies, and compensating sheave assemblies. ■ Pumps, pump motors, operating valves, valve motors, leveling valves, plunger packings, exposed piping, above ground plungers and cylinders, and hydraulic fluid tanks. ■ Escalator handrails, handrail drive chains, handrail brush guards, handrail guide rollers, alignment devices, steps, step treads, step wheels, step chains, step axle bushings, comb plates, floor plates, tracks, external gearing, and drive chains. ■ Escalator upper drives, upper drive bearings, tension sprocket bearings, upper newel bearings and lower newel bearings, demarcation lights, and comb lights. RELIABILITY PARTS COVERAGE If necessary, due to normal usage and wear, Otis will repair or replace any of the parts specified above at their sole discretion, unless specifically excluded elsewhere in the contract. Any parts under this Contract requiring replacement will be replaced with parts selected by Otis. In addition, we will replace all wire ropes or coated steel belts as often as necessary to maintain an appropriate factor of safety. As conditions, usage, or Code warrants, we will equalize the tension on hoisting ropes, resocket ropes for drum machines, and repair or replace conductor cables and hoistway and machine -room elevator wiring PARTS INVENTORY We will during the term of this Contract maintain a supply of frequently used replacement parts and lubricants selected by Otis to meet the specific routine requirements of the Units. Any replacement parts stored in the machine room remain our property until installed in the Units. We further agree to maintain a supply of routine replacement parts available for express delivery in case of emergencies. QUALITY CONTROL We will periodically conduct field audits of our personnel and the Units to maintain quality standards. Otis field engineers will provide technical assistance, technical information, and Code consultation to support our maintenance organization. RESPONSIVENESS 24-HOUR DISPATCHING We will, at your request, provide you with access to eService and our OTISLINE 24-hour, year-round dispatching service. In the event a Unit malfunction occurs between regular examinations, you will be able to place a service call on eService or through an OTISLINE customer service representative, who will, at your request, dispatch an examiner to perform service. In the event Otis receives an emergency call from the phone in the elevator and a passenger indicates a need for assistance, Otis shall attempt to contact a building representative for an assessment of the situation and authorization to respond to the call. If Otis is unable to reach a building representative, Otis shall respond to the emergency call from the phone in the elevator. The visit will be treated as a Callback. It is your responsibility to: (a) have a representative available to receive and respond to OTISLINE calls; and (b) maintain working telephone equipment. COMMUNICATION CUSTOMER REPRESENTATIVE As a service to you, and at your request an Otis representative will be available to discuss with you your elevator needs in the areas of modernization, traffic handling ability, recommendations and requirements of Code authorities, proper use and care of the Units, and the OMMS program. There is no additional charge for this consulting service, but by making this service available to you, Otis does not assume any duty to warn. REPORTS — eSERVICE We will use the OMMS program to record completion of maintenance procedures. We will, at your request, provide you access to eService. You will be able to access twelve (12) months of repair, completed maintenance procedure and © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved LiNX Form MNT-OM (01/30/13) Proposal#: AQ5645 Page 2 of 9 service call history for the Unit(s). You will be responsible for obtaining Internet access to use eService. SAFETY AND ENVIRONMENT SAFETY TESTS —HYDRAULIC ELEVATORS We will conduct an annual no load test and annual pressure relief valve test. FIREFIGHTERS' SERVICE TEST If the equipment has firefighters' service, you assume responsibility for performing and keeping a record of any Code required tests and for the maintenance, functioning and testing of the smoke and/or heat detectors. If during the initial firefighters' service test any elevator firefighters' service is found to be inoperable, the building will be responsible for all of the cost associated with the repairs necessary to bring the unit in compliance with the applicable Codes. If any applicable Code or governing authority mandates that such required tests be performed by a licensed elevator mechanic, Otis will provide such testing and service on an Open Order basis. You will be responsible for the costs associated with such testing and service. SAFETY TRAINING We will instruct our personnel to use appropriate personal protection equipment and follow safe work practices. ENVIRONMENTAL PROTECTION Otis endeavors to reduce generation of waste materials, to minimize risks to the environment, customers, the general public and Otis employees, and to comply with all federal and state environmental laws and regulations. Material Safety Data Sheet (MSDS) Manuals are available for review at your request. You assume responsibility for removal of wastes, including but not limited to hydraulic oil, spoils, asbestos, etc., as it is not part of this Contract. MAINLINE DISCONNECTS You agree to engage a qualified electrician to service at least once annually the elevator mainline disconnects located in the elevator equipment room. SHARED RESPONSIBILITY You agree to provide us unrestricted ready and safe access to all areas of the building in which any part of the Units are located and to keep all machine rooms and pit areas free from water, stored materials, and debris. You agree to provide a safe work place for our personnel, and to remove and remediate any waste or hazardous materials in accordance with applicable laws and regulations. If any Unit is malfunctioning or is in a dangerous condition, you agree to immediately notify us using the 24-hour OTISLINE service. Until the problem is corrected, you agree to remove the Unit from service and take all necessary precautions to prevent access or use. You agree to properly post, maintain, and preserve any and all instructions or warnings to passengers in connection with the use of any Units. In furtherance of OSHA's directive contained in 29 C.F.R. § 1910.147(f)(2)(i), which requires that a service provider (an "outside employer") and its customer (an "on -site employer") must inform each other of their respective lock out/tag out ("LOTO") procedures whenever outside servicing personnel are to be engaged in control of hazardous energy activities on the customer's site, Otis incorporates by reference its mechanical LOTO procedures and its electrical LOTO procedures. These procedures can be obtained at www.otis.com by (1) clicking on "The Americas" tab on the left side © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved LiNX Form MNT-OM (01/30/13) Proposal#: AQ5645 Page 3 of 9 of the website; (2) choosing "US/English" to take you to the "USA" web page; (3) clicking on the "Otis Safety" link on the left side of the page; and (4) downloading the "Lockout Tagout Policy Otis 6.0" and "Mechanical Energy Policy Otis 7.0," both of which are in .pdf format on the right side of the website page. Customer agrees that it will disseminate these procedures throughout its organization to the appropriate personnel who may interact with Otis personnel while Otis personnel are working on site at Customer's facility. WORK SCHEDULE NORMALHOURS All maintenance procedures and repairs will be performed during our regular working hours of our regular working days for the examiners who perform the service. All lamp and signal replacements will be performed during regular examinations. For purposes of this Contract, a Callback is a response by Otis to a request for service or assistance made (a) by the customer or customer representative, (b) by the building or building representative; (c) by emergency personnel; (d) through the ADA phone line, and/or (e) through REMO monitoring system, for service or assistance, on an as needed basis, excluding regularly scheduled maintenance. Regular working hours: 8:00 AM — 4:30 PM. Regular working days: Monday — Friday excluding holidays. OVERTIME Callbacks outside of regular working hours will be billed at standard overtime rates. OWNERSHIP AND LICENSES WIRING DIAGRAMS You agree to provide us with current wiring diagrams reflecting all previously made changes for Units covered by this Contract to facilitate proper maintenance of the equipment. We shall maintain the wiring diagrams so that they properly reflect any changes made by Otis to the equipment. These diagrams will remain your property. OTIS SERVICE EQUIPMENT Any counters, meters, tools, remote monitoring devices, or communication devices which we may use or install under this Contract remain our property, solely for the use of Otis employees. Such service equipment is not considered a part of the Units. You grant us the right to store or install such service equipment in your building and to electrically connect it to the Units. You will restrict access to the service equipment to authorized Otis personnel. You agree to keep the software resident in the service equipment in confidence as a trade secret for Otis. You will not permit others to use, access, examine, copy, disclose or disassemble the service equipment or the software resident in the service equipment for any purpose whatsoever. If the service is terminated for any reason, we will be given access to your premises to remove the service equipment, including the resident software, at our expense. OTIS SOFTWARE Software owned by Otis may be embedded in parts or otherwise provided by Otis as part of this maintenance agreement. You have the right to use this software only for operation of the units for which the part was provided. You may also make a backup or archival copy of the software, provided you reproduce the copyright notice and any other legend of ownership on the copy. You may not otherwise copy, display, adapt, modify, distribute, reverse assemble, reverse compile, or otherwise translate the software. You will not transfer possession of the software except as part of a transfer of ownership of the Units and the assumption of the rights and obligations under this agreement by the transferee. NON-OTIS SOFTWARE You retain your rights to any software not provided by Otis contained in the Units and agree to allow Otis to make one backup or archival copy for you. SERVICE TOOLS You are responsible to secure our right to use any special service tools required to maintain your non- Otis equipment. These tools must be provided prior to us beginning maintenance on such equipment. © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved LiNX Form MNT-OM (01/30/13) Proposal#: AQ5645 Page 4 of 9 THE UNITS It is agreed that we do not assume possession or control of the Units, that such Units remain yours solely as owner and operator, lessee, or agent of the owner or lessee, and that you are solely responsible for all requirements imposed by any federal, state, or local law, Code, ordinance or regulation. CLARIFICATIONS This Contract does not cover car enclosures (including, but not limited to, wall panels, door panels, car gates, plenum chambers, hung ceilings, lighting, light diffusers, light tubes and bulbs, handrails, mirrors and floor coverings), rail alignment, hoistway enclosures, hoistway gates, hoistway inserts and brackets, mainline disconnect switches, doors, door frames, sills, swing door hinges and closing devices, below ground or unexposed hydraulic cylinders and plungers, buried or unexposed piping, escalator balustrades, escalator lighting or wedge guards. Without affecting our obligation to provide service under this Contract, you agree to permit us to train our personnel on the Units. This Contract does not cover computer and microcomputer devices, such as terminal keyboards and display units that are not exclusively dedicated to the elevator system. This Contract does not cover telephones installed by others, intercoms, heat sensors, smoke sensors, communications equipment, or safety signaling equipment, or instructions or warnings in connection with use by passengers. Calls for repairs that fall outside of the scope of this contract will incur charges for travel time, plus vehicle surcharges and expenses. We will not be required: (i) to make any tests other than that as specifically set forth herein; (ii) to make any replacements with parts of a different design or type; (iii) to make any changes in the existing design of the Units; (iv) to alter, update, modernize or install new attachments to any Units, whether recommended or directed by governmental authorities or by any third party; (v) to make repairs or replacements necessitated by failures detected during or due to testing of the Units or buried or unexposed hydraulic cylinders or piping and (vi) to replace or repair any component or system utilizing obsolete or discontinued parts, including parts for which the original design is no longer manufactured by the original equipment manufacturers, or parts where the original item has been replaced by an item of different design or is replaceable only by fabrication; (vii) to provide reconditioned or used parts; (viii) to make any replacements, renewals, or repairs necessitated by reason of any cause beyond our control including, but not limited to, fire, explosion, theft, floods, water, weather, earthquake, vandalism, misuse, abuse, mischief, or repairs by others. You assume responsibility for the cost of correcting all Elevator Code violations existing on the date we enter into this Contract. If such Code violations or other outstanding safety violations are not corrected in accordance with this Contract, Otis may with respect to the equipment not meeting Code requirements cancel this Contract without penalty by providing thirty (30) days written notice. Should you require us to interface with a third party work order, insurance or safety systems, Otis will add an appropriate fee to cover the additional cost associated with this service. Neither party shall be liable for any loss, damage or delay due to any cause beyond our reasonable control including, but not limited to, acts of government, strikes, lockouts, other labor disputes, fire, explosion, theft, floods, water, weather, earthquake, riot, civil commotion, war, vandalism, misuse, abuse, mischief, or acts of God. We agree that we shall be liable for accidents and injuries to person or property when adjudged to have been caused by the sole negligence or willful misconduct of Otis or our employees. In all other instances, Customer shall indemnify, defend and hold us harmless against all claims, damages, losses, costs, and expenses (including attorney's fees and other litigation costs) arising out of or connected with the use, repair, maintenance, operation or condition of the Equipment. We shall maintain worker's compensation and employers' liability insurance covering our liability for injury or death sustained by our employees, and comprehensive general liability insurance. You shall insure that all risk insurance upon the full value of the Work and material delivered to the job site is maintained at no cost to us. If either party so requires, in writing, the other party shall furnish certificates of insurance evidencing the above insurance coverages. Notwithstanding any other agreement or provision to the contrary, under no circumstances will either party be liable for any indirect, special or consequential damages of any kind, including, but not limited to, fines or penalties, loss of profits, loss of rents, loss of good will, loss of business opportunity, additional financial costs, or loss of use of any equipment or property, whether in contract, tort, warranty or otherwise. You agree to provide us unrestricted ready and safe access to all areas of the building in which any part of the Units are located, to keep all machine rooms and pit areas free from water, stored materials, and debris, to provide a safe work © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved LiNX Form MNT-OM (01/30/13) Proposal#: AQ5645 Page 5 of 9 place for our personnel, to remove and remediate any waste or hazardous materials in accordance with applicable laws and regulations, and to provide a grounded, 3-prong electrical system and proper lighting in the machine rooms and pits. We shall not be obliged to perform until such unsafe condition has been remedied. If any Unit is malfunctioning or is in a dangerous condition, you agree to notify us as soon as possible using the 24-hour OTISLINE® service. Until the problem is corrected, you agree to remove the Unit from service and take all necessary precautions to prevent access or use. You will provide written notice within twenty-four hours after occurrence of any accident in or about the elevator (s) and/or escalator(s) to us and if required by law, to any local authorities. You further agree to preserve replaced parts. Escalator Units are designed only for transporting passengers. For escalator Units, you agree to take all necessary measures to prevent other items from being conveyed, so that features designed to protect passengers and prevent property damage are not damaged. When stationary, escalators are to be properly barricaded and not to be used as steps. You agree to properly post, maintain, and preserve any and all instructions or warnings to passengers in connection with the use of any Units. In the event of an entrapment, Customer will call Otis and wait for a trained and licensed elevator mechanic to arrive, except for a medical emergency situation where it may be appropriate to summon a professional first responder such as police or firemen. Customer agrees that its agents, contractors, employees or representatives shall not attempt to extricate any passengers from an elevator that becomes stalled within the hoistway. Otis will not be required to make renewals or repairs necessitated by fluctuations in the building AC power systems, adverse hoistway or machine room conditions (including temperature variations below 60 degrees and above 90 degrees Fahrenheit), excessive humidity, adverse environmental conditions, water damage, rust, fire, explosion, acts of God, misuse, or vandalism. If this Agreement is terminated prematurely for any reason, other than our own default, you agree to pay as liquidated damages, and not as a penalty, one-half (50%) of the remaining amount due under this Agreement. Should this Agreement be accepted by you in the form of a purchase order, the terms and conditions of this Agreement will take precedence over those of the purchase order. We will not be liable for any claim, injury, delay, death or loss or property resulting from telephone equipment failure, false alarms, interruption of telephone service, or "no voice calls", i.e. calls from inside the equipment to Otisline where there is no verbal response to the Otisline operator. ALTERATIONS You will not allow others to make alterations, additions, adjustments, or repairs to the equipment. SPECIAL PROVISIONS Notwithstanding any other provision herein to the contrary, the following provisions shall be applicable and govern in the event of conflict: DES Contract # 01219 Master Contract: This agreement is based on the pricing structure as outlined in the State of Washington master agreement. CONTRACT PRICE AND TERM CONTRACT PRICE Three hundred fifty-seven dollars and ten cents ($ 357.10 ) per month, payable Quarterly © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved LiNX Form MNT-OM (01/30/13) Proposal#: AQ5645 Page 6 of 9 PRICE ADJUSTMENT Three hundred fifty-seven dollars and ten cents ($ 357.10) of the original Contract Price will be increased or decreased by the percent increase or decrease in the straight time hourly labor cost under the IUEC contract on 01/01/2021 which was 102.043. The phrase "straight time hourly labor cost" means the sum of the straight time hourly labor rate plus the hourly cost of fringe benefits paid to elevator examiners in the locality where the equipment is to be maintained. The Contract Price will be adjusted annually on the commencement date by the percentage increase or decrease in the straight time hourly labor cost under the IUEC contract then in effect. The term "straight time hourly labor cost" means the sum of the straight time hourly labor rate plus the hourly cost of fringe benefits paid to elevator examiners in the locality where the equipment is maintained. In addition, we may adjust the Contract Price as a result of any substantial changes in service expenses, including but not limited to expenses in connection with fuel, waste disposal, environmental requirements, cost of materials, changes to government regulations or other administrative costs. TERM The Commencement Date will be 06/01/2021. The Term of this Contract unless modified under the extended term below, will be for five (5) years beginning on the Commencement Date. The Contract will automatically be renewed on the fifth anniversary for an additional five (5) years unless terminated by either party by giving written notice to the other party at least ninety (90) days, but no more than 120 days prior to the end of the current five (5) year term. Thereafter, the Contract will automatically be renewed on each fifth anniversary for an additional five (5) year term unless terminated by either party by giving written notice to the other party at least ninety (90) days, but no more than 120 days prior to the end of the then current five (5) year term. In the event that you sell the building or your interest is terminated prior to the expiration of the Contract, you agree to assign the Contract to the new owner or successor and to cause the new owner to assume your obligations under this agreement. If the new owner or successor fails to assume your obligations under the Contract, then you agree to pay to Otis all sums due for the unexpired Term. PAYMENTS Beginning on the Effective Date, payments will be due and payable on or before the first day of the contract year in which services are rendered beginning on the Commencement Date. The work shall be performed for the agreed price plus any applicable sales, excise or similar taxes as required by law. In addition to the agreed price, you shall pay to us any future applicable tax imposed on us, our suppliers or you in connection with the performance of the work described. You agree to pay a late charge from the date such sums become due of one and one-half percent (1.5%) per month, or the highest legally permitted rate, whichever is less, on any balance past due for more than thirty (30) days, together with all costs (including, but not limited to, attorneys' fees) incurred by us to collect overdue amounts. Failure to pay any sum due by you within sixty (60) days will be a material breach. We may at our option declare all sums due or to become due for the unexpired term immediately due and payable as liquidated damages, and until the same are paid be discharged from further obligations under the contract. Electronic Funds Transfer Payments (ACH/EFT) To set up automatic payments or to make one-time payments, please visit Payinvoicedirect.com to register. Please note, registration is available after your first invoice has been billed. © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved LiNX Form MNT-OM (01/30/13) Proposal#: AQ5645 Page 7 of 9 ACCEPTANCE This proposal, when accepted by you below and approved by our authorized representative, will constitute the entire and exclusive contract between us for the services to be provided and your authorization to perform as outlined herein. All prior or contemporaneous oral or written representations or agreements not incorporated herein will be superseded. Any purchase order issued by you in connection with the services to be provided will be deemed to be issued for your administrative or billing identification purposes only, and the parties hereto intend that the terms and conditions contained herein will exclusively govern the services to be provided. We do not give up rights under any existing contract until this proposal is fully executed. This Contract may not be changed, modified, revised or amended unless in writing signed by you and an authorized representative of Otis. Further, any manual changes to this form will not be effective as to Otis unless initialed in the margin by an authorized representative of Otis. THIS QUOTATION is valid for ninety (90) days from the proposal date. Submitted by: Gregory Norris Title: Account Manager E-mail: gregory.norris@otis.com Accepted in Duplicate CUSTOMER Approved by Authorized Representative Date: Signed: Print Name: - Title - E-mail: - Name of Company - Otis Elevator Company Approved by Authorized Representative Date: Signed: Print Name: Grant Berryhill Title Sales Manager ❑ Principal, Owner or Authorized Representative of Principal or Owner ❑ Agent: (Name of Principal or Owner) © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved LiNX Form MNT-OM (01/30/13) Proposal#: AQ5645 Page 8 of 9 BILL TO INFORMATION Company Name: Address: Address 2: City: State: Zip Code: ACCOUNTS PAYABLE CONTACT Name: Phone Number: Fax Number: E-mail: TAX STATUS Are you tax exempt? Yes No If yes, please provide tax exempt certificate Do you require a Purchase Order be listed on your invoices? Yes No If yes, please provide contact info for PO renewal: Name: Fax: Phone: E-Mail Would you like Otis to automatically debit your bank account for your maintenance invoices? Yes No If yes, please provide blank check for bank routing and account information. © OTIS ELEVATOR COMPANY, 2011 All Rights Reserved LiNX Form MNT-OM (01/30/13) Proposal#: AQ5645 Page 9 of 9 OTIS ELEVATOR COMPANY ACKNOWLEDGEMENT TO MAINTENANCE CONTRACT PARTIES: OTIS ELEVATOR COMPANY CITY OF PORT ORCHARD CONTRACT NO.: C046-21 EQUIPMENT LOCATION PORT ORCHARD CITY HALL 216 Prospect Street Port Orchard, WA 98366 DATE: 9' April 2021 Thank you for allowing Vendor the opportunity to do business with you. Vendor's agreement to provide labor, services, and materials (collectively "Work") is conditioned by the following terms in this document (hereinafter called "Acknowledgment") and the Vendor's proposal ("Proposal"), both of which are incorporated herein by reference and made a part of the City of Port Orchard Purchased Service Agreement between Vendor and Customer (collectively, the Acknowledgment, Proposal, City of Port Orchard Purchased Service Agreement, and any other contract document agreed to between Vendor and Customer for the Work is hereinafter referred to as the "Contract"). In the event of a conflict between the Acknowledgment, Proposal, or any other document, the terms in the City of Port Orchard Purchased Service Agreement control (the only exception to this is limited to if the terms of the Proposal give Vendor greater rights or protections, then in such limited instances, the Proposal controls). References to specific sections below are for convenience and are not meant to limit the applicability of the modifications to those sections to the extent such modifications apply to other sections. CITY OF PORT ORCHARD PURCHASED SERVICE AGREEMENT: Article 1 (A)• It is understood and agreed the Vendor's proposal is made part of this agreement. Article 1 (B)• It is understood that the work is to be performed for a fixed price, at the amount indicated in the Agreement. This amount shall only be adjusted by properly approved change orders or written directives indicating related modifications to the scope of work and/or to the terms and conditions. Any and all proposed change orders or written directives must be sent to Otis for approval prior to handover of the equipment. Article 1 (C) & Article 7: Vendor does not agree to any termination for convenience by Customer. The Customer may, however, by written notice to Vendor, terminate this Contract if Vendor fails to perform any of its material obligations hereunder and does not commence to cure such failure within thirty (30) days after receipt of written notice from the Customer specifying in detail such failure. In the event that Customer sells the building or its interest is terminated prior to the expiration of the Contract, Customer agrees to assign the Contract to the new owner or successor and to cause the new owner to assume Customer's obligations under the Contract. If the new owner or successor fails to assume Customer's obligations under the Contract, then Customer agrees to pay to Vendor all sums due for the unexpired term on an accelerated basis. Article 1 (G) & Article 10: Vendor will not be responsible for any damage to property, materials or equipment to the extent caused by the Customer or by anyone for whom the customer is responsible. OTIS ELEVATOR COMPANY ACKNOWLEDGEMENT TO MAINTENANCE CONTRACT Vendor does not assume any liability or responsibility for damage to its work or materials caused by the Customer or anyone for whom the Customer is responsible. Article 2 All schedules, start dates, completion dates, durations and schedule revisions shall be agreed to in writing by both parties before becoming effective. Article 3 & Article 4: The Contract price shall be adjusted upwardly by the percentage increase to reflect increases in material and labor costs shown by the index of "Producer Commodity Prices for Metals and Metal Products" published by the U. S. Department of Labor, Bureau of Labor Statistics and the percent increase in the straight time hourly labor cost. Additionally, at Vendor's discretion, the price may be adjusted as a result of increases in connection with environmental requirements, or changes to government laws or regulations including local, state, or federal taxes or tariffs. Article 4 (C) & Article 17 (4): Vendor does not agree to any inspection, audit, or copy of any of Vendor's confidential, proprietary, or trade secret information, data, or documents including, without limitation, financials. Article 5 (A) & Article 17 (2); and Appendix A: The materials and components that comprise Vendor's products are procured from a variety of sources located throughout the world, which allows Vendor to provide Vendor's customers with high quality equipment at competitive prices, but limits Vendor's ability to meet certain percentages of M/W/DBE set aside goals. Vendor is committed to achieving diversity within Vendor's workforce and in Vendor's supply base, however, Vendor cannot commit to specific set aside targets in the Contract. Article 5 M: Otis agrees to the Customer's right to inspect and reject Otis's work. If any work is rejected, Otis must be allowed a reasonable time, upon receipt of prior written notice, in order to remedy the deficiency. Article 5 (C) & Article 17 (1): Notwithstanding anything in contrary to this in the Agreement, Vendor agrees to abide by Customer's safety policy as long as said policy is not in conflict with Vendor's safety policy(ies) or Vendor's agreement with the International Union of Elevator Constructors (IUEC). Customer agrees to provide Vendor with unrestricted ready and safe access to all areas of the building in which any Work is performed and to keep all machine rooms and pit areas free from water, stored materials and excessive debris, waste, or hazardous materials. If Customer is aware of an elevator or escalator malfunctioning or in a dangerous condition, Customer agrees to immediately notify Vendor using the 24 hour OTISLINE service. Until such condition is corrected, Customer agrees to keep the elevator or escalator removed from operation and take all reasonable steps to prevent unauthorized access or use. Further, Customer shall be responsible for posting warnings in connection with such units. In the interest of safety, Customer will not allow others to do any alternations, additions, adjustments, or repairs to the equipment that is being maintained by Vendor during the term of the Contract. To the extent that Customer intends to have others furnish labor, services, or materials that are outside the scope of Work that Vendor is providing to Customer pursuant to the Contract, prior to any such out of scope work by others Customer shall give Vendor reasonable prior notice, in writing, of any such intended out of scope work. If any out of scope work performed by others renders any equipment or area, in Vendor's opinion, unsafe (hereinafter, an "Unsafe Condition") then Customer agrees that Vendor is excused, without 2 OTIS ELEVATOR COMPANY ACKNOWLEDGEMENT TO MAINTENANCE CONTRACT default or penalty against Vendor, from having to continue to provide Work to the affected equipment or area until such Unsafe Condition is corrected at no cost to Vendor. Article 7 (D) & Article 7 (E): In the event portions of the building or certain buildings are permanently closed and as a result of this closure, elevators or escalators ("Unit(s)") is/are removed from service the Unit(s) will be deemed suspended from maintenance service. The amount of the payments allocable to the Unit(s) removed from service shall be prorated for the period the Unit(s) are out of service. The remaining Unit(s) shall remain under the terms of the Maintenance Contract. Customer agrees to provide Otis with at least thirty (30) days prior written notice in the event of such closure and suspension. It is understood and agreed that the removal of the Unit(s) from service is only a suspension of services and not a termination under the terms of the Maintenance Contract. If the Unit(s) previously removed from service are reactivated it is understood and agreed they will be reinstated in the maintenance agreement and billed accordingly. Article 11: The Vendor shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from claims, injuries, damages, losses or suits, including reasonable legal costs and attorneys' fees, arising out of or in connection with the negligence in the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. The City's inspection or acceptance of any of the Vendor's work when completed shall not be grounds to avoid any of these covenants of indemnification. Nothing in this Agreement shall be construed as creating a liability or right of indemnification in any third party Customer shall defend, indemnify, and hold Vendor harmless against all claims, damages, losses, costs, and expenses (including attorney's fees and other litigation costs) caused by the sole negligence of the City in the performance of this agreement. Under no circumstances shall either party be liable for special, indirect, consequential or liquidated damages of any kind including, but not limited to, loss of goodwill, loss of business opportunity, additional financing costs or loss of use of any equipment or property. This limitation of liability for applies to indemnity of third -party claims. Nothing in this Agreement shall be construed as creating a liability or right of indemnification in any third party. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Vendor and the City, its officers, officials, employees, agents and volunteers, the Vendor's liability hereunder shall be only to the extent of the Vendor's negligence. The provisions of this section shall survive the expiration or termination of this Agreement. OTIS ELEVATOR COMPANY ACKNOWLEDGEMENT TO MAINTENANCE CONTRACT IT IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE VENDOR'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. THE VENDOR'S WAIVER OF IMMUNITY UNDER THE PROVISIONS OF THIS SECTION DOES NOT INCLUDE, OR EXTEND TO, ANY CLAIMS BY THE VENDOR'S EMPLOYEES DIRECTLY AGAINST THE VENDOR. Article 12: Vendor will supply an insurance certificate evidencing the insurance carried by Vendor conditioned on the understanding that it represents full compliance with all insurance requirements applying to Vendor under the Contract and for the Work. Vendor does not provide copies of its insurance policies, certified or otherwise,. All limits and values related to coverage if any is provided to Customer shall be actual values without qualifying language such as "at least", "not less than", "no less than", "minimum" or the like. Coverage, if any, will be on an occurrence basis and in accordance with the coverage limits outlined in the Contract. Renewal certificates will be provided during the term of the Contract. Otis will agree to name City of Port Orchard as additional insured. Vendor shall not be required to comply with requirements from third party compliance vendors nor shall Vendor be responsible for any costs associated with same. Article 13 Customer may assign this agreement, but only with written approval from Otis, which will not be unreasonably withheld. Article 15: In the event any disputes arise in connection with the performance of any obligation under this Agreement, Otis agrees to consult and consider the use of mediation or other form of alternative dispute resolution prior to resorting to litigation. Article 18 (New Article): Vendor shall not be liable for any damage, loss, cost, or expense as a result of any reason beyond Vendor's control including, but not limited to, acts of God or nature; fire; explosion; theft; floods; water; weather; traffic conditions; epidemic, pandemic, quarantine or other local, state, or federal government action in response thereto; sabotage; national emergency; act of terrorism; earthquake; riot; civil commotion; war; vandalism; national or local labor strikes, lockouts, other labor disputes; misuse, abuse, neglect, mischief, or work by others (collectively, "Causes Beyond Vendor's Reasonable Control"). Vendor shall be allowed a reasonable amount of additional time for the performance of the Work due to Causes Beyond Vendor's Reasonable Control. IN GENERAL ASBESTOS Customer agrees to immediately notify Vendor if Customer is aware or becomes aware of the existence of asbestos or other hazardous material in any elevator hoistway, machine room, hallway or other place in the building where Vendor's personnel are or may be required to perform services. In the event it should become necessary to abate, encapsulate or remove asbestos or other hazardous material from the building, Customer agrees to be responsible for such abatement, encapsulation or removal, and any governmental reporting, and in such event Vendor shall be entitled to (i) delay its Work until it is determined to Vendor's satisfaction that no hazard exists and (ii) compensation for delays encountered. WORK EXCLUDED Vendor is not required to: 4 OTIS ELEVATOR COMPANY ACKNOWLEDGEMENT TO MAINTENANCE CONTRACT -alter, update, modernize or install new attachments to any units, whether or not recommended or directed by insurance companies or governmental authorities; -conduct any tests other than those expressly provided for in the Contract; -make any replacements with parts of a different design or type; -make any changes to the existing design of the equipment; -make any repairs or replacements necessitated by failures or due to tests required by authorities; -make any replacement, renewal, or repair necessitated by an obsolete or discontinued part. Vendor is not responsible for: -car enclosures (including but not limited to, wall panels, door panels, car gates, plenum chambers, hung ceilings, lighting, light diffusers, light tubes and bulbs, handrails, mirrors and floor coverings), rail alignment, when affected by building compression or shifting hoistway enclosures, hoistway gates, hoistway inserts and brackets, mainline disconnect switches, doors, door frames, sills, swing door hinges and closing devices, hydraulic cylinders, plungers, buried piping, escalator balustrades, lighting and wedge guards; -for computer and microcomputer devices, such as terminal keyboards and display units, that are not exclusively dedicated to the elevator system, telephones, intercoms, heat or smoke sensors or communications or safety signaling equipment not installed by Vendor; -instructions or warnings in connection with use by passengers. No Work or service other than that specifically mentioned is included or intended. It is agreed that Vendor does not take possession of the elevator or escalator units and that such units remain yours solely either as owner, or as operator, lessee, or agent of owner or lessee. WARRANTY Vendor warranty is limited to the repair or replacement, at Vendor's discretion, of defective materials and the correction of defective workmanship furnished by Vendor within a reasonable time for defects that are reported to Vendor during the term of this Contract provided all payments due under the terms of the Contract have been made in full. This warranty excludes ordinary wear and tear and any damage due to Causes Beyond Vendor's Reasonable Control. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OVERTIME DEFINED Should Vendor agree to work overtime, Customer agrees to pay Vendor overtime premium wages. TOOLS Customer shall not have the right to take possession of Vendor's tools, machinery or equipment unless Customer has paid in full for such materials and Vendor has expressly agreed to the sale of such materials in writing. SOFTWARE Vendor shall provide its maintenance personnel with the appropriate (as determined by Vendor in its sole discretion) tools to enable Vendor to troubleshoot, diagnose and maintain the equipment as provided in this Agreement. These tools shall remain the property of Vendor and nothing in this Contract shall be construed to obligate Vendor to give, disclose or in any manner transfer such tools to the Customer or any third party. Any counters, meters, tools, remote monitoring devices, communication devices, resident software or other service equipment ("Vendor Peripherals") which Vendor may use or install to deliver service under this Contract remains Vendor's property, solely for the use of Vendor's employees. Vendor Peripherals are not considered as part of the elevator or escalator. Work for Hire provision(s), if any, shall apply only to the extent the information, services, goods, or other items referenced in such provision(s) are specifically developed by the Vendor solely for Customer's exclusive use only (and no other Customer of the Vendor) and Customer was expressly contemplated to be the exclusive owner of such information under a separate written agreement. If this Contract or subsequent maintenance service is terminated for any reason, Vendor OTIS ELEVATOR COMPANY ACKNOWLEDGEMENT TO MAINTENANCE CONTRACT shall be given access to the premises to remove the Vendor Peripherals at Vendor's expense. Vendor shall only be required to follow its own cyber security policies and procedures. : o!'�'Z�lI1��IZxy Vendor supports Customer's efforts to maintain a safe and productive work environment; however, Vendor's collective bargaining agreement with the IUEC prohibits Vendor from completing background checks, searches, or tests on Vendor employees in the IUEC bargaining unit. Therefore, Vendor cannot agree to authorize any party to complete criminal background checks, searches, or tests on any Vendor employees. Vendor will request IUEC represented employees furnishing Work for Customer to agree to voluntarily submit to a criminal background check and agrees not to staff with employees who do not consent to same to the extent that Customer requires background checks. Customer agrees to pay any and all costs associated with obtaining criminal background checks conducted. Subject to the forgoing, Vendor will take appropriate action in the event that you advise us of any action by any of our employees that is contrary to the maintenance of a safe, healthy and productive workplace. CONFIDENTIALITY If any documentation is specified in this Contract to be proprietary to the Customer and confidential, such documentation shall be clearly marked as confidential. Otis agrees to keep such documents confidential by using the same degree of protection afforded to Otis' confidential documents of a similar nature. PARTIAL INVALIDITY The invalidity of one or more of the phrases, sentences, clauses, or paragraphs contained in this Contract shall not affect the validity of the remaining portions. We want to take this opportunity to thank you for this order. OTIS ELEVATOR COMPANY 0