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HomeMy WebLinkAbout03223 - CARRIER CORP SETTLEMENT MUTUAL RELEASE M05178 OJ:il 93 17' 38 $836 3:77 HUBRIS D.E MS . Carrier Corp. Settlement & Mutual Release AGREEMENT #3223 M05178, 4-21-93 tH8'CTLEHIMT AND KUT rAL RIM]WE This Settlomaat Agreement and Mutual Release is entered into between Plaintiff, City of Palm Springs, and third party defendant, counter-claimant and cross-claimant, Sli:ader Chemical Company ("Shrader') and defendant and cross-defendant, Komar, Inc. and Komar Export, Inc. RECITxLB 1. City of Palm Springs filed a. complaint on February 19, 1991, in Riverside Superior Court which, was then removed to the United States District Cost, Central District of California, Case No. SACV 91-261. Carrier Corporation, in turn, cross-claimed against Komar and eventually Shradar Carpc.ration for, among other things, indemnity in reference to all claims asserted by the City of Palm Springs in the action entitled City of Palm Springs v. Car,Zi er Corporation, Case No. SAr 91-261, 2. In response to Carrier's cross-claim, Komar and Shrader filed answers, asserting, among other things, that they had no obligation to provide indemnity and were not responsible for any of the damages _arising out of .the fa_ilur4 of the heating, ventilation and air conditioning systen to' the Palm Springs Convention Center. Now, T=Ir ORE., for and in consideration of the foregoing recitals, the mutual undertakings con ainad in this agreement and other goad and sufficient consideration, the parties hereto agree as follows: 1. payment: Concurrently with. the execution of this Agreement, Komar and Shrader will pay to the City of Palm Springs the total sum of Fifty Thousand Dollars ($5A,000.00) with ShraRar paying Twenty Eight Thousand Dollars ($28,000.00) and Komar paying Twenty Two Thousand Dollars ($22,000.00) . 2. Good Faith Settlement: .All parties hereto acknowledge that the settlement set forth in this agreement is entered into in good faith, an a result of negotiations, and to resolve and compromise disputed substantial claims between them. 3. Release: In consideration of the payments provided for herein and other valuable consideration mentioned herein, the City of Palm Springs, on behalf- of itself, its trustees, administrators, heirs, agents, servants, employees, stockholders, partners, representatives, assigns and successors, hereby fully releases and discharges. Momar " and Shrader and their agents, attorneys, servants, shareholders, principals, Truck Insurance Exchange, partners, officers, directors, employees, representatives, successors and assigns and all related enterprises (e.g. , parent corporations, predecessor corporations, subsidiary I03, 11,93 17: 39 'M711 336 3317 concerns, etc.) from all claimer and causes, of action, contingent, accrued, or otherwise whi'_ch the City of pzLix springs may or might have had, whether past, present or future, whether known or unknown against Komar and shrader which in any way pertain, arise out of or in any way relate to the City of Palm Springs' claims in CJtv of palm springs v Caviar Cca•raration, Casa No. SACV 91-261. The City of PaIr Springs represents and war.-ants that it does not intend to commence or maintain any litigation against any parson or entity not a named party, defendant, cross-defendant, or third- party defendant to case number SACV 91-261 as a result of any alleged damages to the heating, ventilation and air conditioning (,EvAC') system at the Convention Center that were the subject of its complaint in Case No. SACV 91-261; fUrtborMOre, the City of Palm springs represents and warrants that it has no actual knowledge of any litigation presently pending against any person or entity not a named party,' defendant, cro:3s-defendant, or third- party defendant to case number SACV 91-261 as a result of any alleged damages to the HVAC system„at the Convention Center that vere the subject of its complaint in Case No. SACV 91-261. The City of palm Springs, or its agents, will. not use any chemicals clearly labeled on their containers or packaging as having been manufactured or suppliewd by Shrader Chemical Company and/or Aquatrol that may still remain from the time when Momar and Sbrader were involved with water treatment services to the Convention Center. Momar, on behalf of itself, its trustees, officers, directors, adminici-rator5, heirs, agents, servants, employees, stockholders, partners, representatives, assigns and successors, mutually releases, acquits, and forever discharges Shrader, its agents, attorneys, servants, principals, partners, officers, directors, employees, representatives, successors and assigns and all related and unrelated enterprises fral claims for attorneys' fees, casts and euqlenses ender any applicable insurance policies which pertain to or are applicable to the City of Palm Springs' claims in the City of Fa Sbr!ngs v. Carri s Corporation, Case No. SACV 91-261. Likewise, shrader, on'behalt of itself, its trustees, officers, directors, administrators, heirs, agents, servants, employees, stockholders, partners, representatives, assigns and successors, mutually rn1^^^^-, acquits, and forever discharges Komar, its agents, attorneys, servants, principals, partners, officers, directors, employees, representatives, successors and assigns and all related enterprises from claims for attorneys' fees, costs and expenspsi under any applicable insurance policies which pertain to or are applicable to the City of Palm Springs's claims in the City of Palm Snrincs V. Carriiar Corporation, Casa No. SAC791-261. Said Mutual Release between Komar and Shrader is specifically limited to claims for attorneys' fees, costs and expanses reimbursable pursuant to shrader's insurance coverage only, and against Shrader with regard to the city of Palm Springs lawsuit, and/or its agents, principals, enpieyees, and in no way affects other rights, duties, and obligations arising out of any applicable licensing agreements, or any other obligation in law or in equity between and on behalf of Komar and shrader, vhich was not 03,11-93 17:41 'D7036 3337 B.iRRIS D.HIaS ®00� part of the Palm. Spring lawsuit_ Shrader and xozear will not sack indemnity, Contribution or otherwise from each other arising from the City of Palm Springs matter, only. This Release does not bar fi<ann and Shrader from asserting any rights, claims, causes of action and/or defenses hot a part of the Palm Springs lawsuit (excluding that expressly mentioned herein) agairst each other. Each party herein acknowledges that it has been advised by legal counsel familiar With the provisions of Cxliforn.fa CJV-11 CQ&e Section 1542, which provides as follows: A. general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected his settlement with the debtor. All parties hereby waive and relinquish all rights and benefits under Civil Coda sxtion 1542 azis.ing out of or in any way related to any event, occurrence, transaction, matter or thing Which is the subject matter of a claim or lawsuit arising out of the disputes addressed elsewhere in this Agreement. 4. Reoresentatio 5 pnd W rr•r,ni-ice: The parties hereto represent and warrant to and agree with eaa,h other as follows: a. Each party has received independent lega1, advice from attorneys of their own choice with respect to the advisability. of making a settlement and the releases provided herein and with respect to the advisability of executing this .Agreement. b. There are no other agreements or understandings between the parties hereto relating to the matters and releases referred to in this lgrasment. C. All Parties hereto and their counsel have made an investigation of thee facts pertaining to the releases contained herein as they deem necessary. d. The terms of this Agreement are contractual, are the result of negotiation among the parties and are not mere recitals. a_ This Jgreement has been carefully read by each of the parties and the contents thereof are known and understood by of the parties. f. Each party covenants and agrees not to bring any action, claim, suit or proceeding against any party hereto, directly_ or indirectly, ragarding or relating to the matters released hereby (except to enforce this os:ii cs t7:sz Cr�ase sssr a.�RRts n at�� Zoos Agreement) , and further -covenants and agrees that this Agreement is a, bar to any such claim., action, suit or proce'eding- g. Each pasty hereto represents and warrants that it is tale sole and lawful owner of all right, title and interest in and. to every claim or other matter which each purports to release herein, and that it has not heretofore assigned, transferred or purported to assign or transfer, to any . person, firm, association, corporation or other entity, any right, title or interest in any such claim or other natter. S. XcdificatL ng: This Agreement may not be amended, cancalod, revoked or otherwise modified except by written agreement subscribed to by all the parties hereto. 6. Agreement Sindima on Successors: This Agreement shall be binding upon 'and shall inure to the benefit of, the parties hereto and their respective past and present partners, officers, directors, employees, attorneys, heirs, agents, servants,' heirs, adm;ni trators, exacutivas, successx rs, representatives and assigns. 7. of ,; i,iiity: the parties hereto explicitly acknowledge that this Agreement represents a settlement of doubtful and disputed claims, and that by entering into this Agreement, no pasty admits or acknowledges the existence of any liability or wrongdoing. S. Attorneys' Fees: All parties hereto agree to pay their own costs and attoxieys' fees except as follows: a. Ia the event that any action, suit or other proceedings is instituted to remedy, prevent or obtain relief from a breach of this agreement, arising out of a breach of this Agreement, involving claims within the scope of the releases, indemnification containad in this Agreement, or paitaining to a declaration of the rights under this Agreement, the prevailing party shall recover all such parties's attorneys' fees incurred in each and every action, snit or other proceeding, including any and all appeals or petitions therefrom. b. As used in this Agreement, attorneys' fees, shall be deemed to mean the full and actual cost of any legal services actually performed in connactien with tha matters involved, calculated on the basis of the usual fee charged the attorneys perfoi:ming the services and shall not be limited to "reasonable attorneys' fees• as defined in the statute_ of Rule oi. Court. 9. Sevetability: _Tn the event any portions of this Agreement shall be deemed to be void, voiZabla or unennforcaable, the remaining portions shall remain in full force and effect. 10. Governing Law: This Agreement shall be construed in accordance with and be governed by the laws of the State of California as they exist at the date of the last execution hereof. 11. WarrantV of Authority: Each party whose signature is affixed hereto in a representative capacity represents and warrants that he is authorized to execute this Agreement on behalf and to bind the entity or person on whose behalf his signature is affixed. 12 . Counterparts: This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which, when executed, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below. THE CITY OF PALM S GS Dated: /�2 1993 By: SHRADER CHEMICAL COMPANY Dated: " ^ ' .? 1993 By: MOMAR INCORPORATED; MOMAR EXPORT COMPANY Dated: 1993 By: COUNTERPART SIGNATURE NEXT PAGE APPROVED AS TO FORM AND CONTENT this day of 1993 , ATTEST: City of Palm Springs RUTAN & TUCKER h .. BY: SCOTTIPI OIQ E— C ity�ler Attorneys for Plaintiff City of Palm Springs [SIGNATURES CONTINUE ON NEXT PAGE] • 0 the remaining portions shall remain in full force and effect. 10. Governing Iaw: This Agreement shall be construed in accordance with and be governed by the laws of the State of California as they exist at the date of the last execution hereof. 11. Warranty oi` Authority: Each party whose signature is affixed hereto in a representative capacity represents and warrants that he is authorized to execute this Agreement on behalf and to bind the entity or person on whose behalf his signature is affixed. 12 . Counterpart:s: This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be an original, and all of which, when executed, shall constitute one and the same instrument. IN WITNESS WHEREOF, the . parties have executed this Agreement on the dates set: forth below. THE ITY OF PALM S Is Dated: L// -?� , 1993 By: SHRADER CHEMICAL COMPANY Dated: 1993 By: COUNTERPART SIGNATURE PREVIOUS PAGE MOMAR INCORPORATED; MOMAR EXPORT COMPANY rr1111 Dated: , 1993 By: 11 U APPROVED AS TO FORM AND CONTENT this L day of f�1 , 1993 , L/ RUTAN & TUCKER ATTEST: City of Palm Springs N By: a� r SCOTT-"PI NE i i __ Attorneys-for Plaintiff City City ;'Cy,erk of Palm Springs UNOLA'J IN"iO ti.l A.1 [SIGNATURES CONTINUE ON NEXT PAGE] APPROVED AS TO FORM AND CONTENT this J,6 -day of 1993 , to HARRIS D. HIMES & ASSOC7TES fi cm CHARLES A. MOLLIS Attorneys for Third-Party Defendant / Counter - Claimant/Cross-Complainant Shrader Chemical Company APPROVED AS TO FORM AND CONTENT this day of , 1993, LAW OFFICES OF SEDGWICK, DETERT, MORAN & ARNOLD By: SIGNATURE NEXT PAGE ALAN J. FREISLEBEN Attorneys for Defendant/Cross- Defendant Momar Export, Inc. APPROVED AS TO FORM AND CONTENT this day of , 1993 , HARRIS D. HIMES & ASSOCIATES By: SIGNATURE PREVIOUS PAGE CHARLES A. MOLLIS Attorneys for Third-Party Defendant / Counter - Claimant/Cross-Complainant Shrader Chemical Company APPROVED AS TO FORM AND CONTENT this day of 1993 , LAW OFFICES OF SEDGWICK, DETERT, MORAN &, AR/NOLD BY: uLm!" ?I f �VA ALAN �J. FREISLEBEN Attorneys for Defendant/Cross- Defendant Momar Export, Inc. 91/03,93 10: 3a =*624 zsas ROBIE h ILiT'ail • Qoa.r SETTLE111Er'T AGREEMENT AND RELEASE OF .ALL CLAIMS This Settlement Agreement and Release of All Claims is made this day of April, 1993, by and between CARRIER CORPORATION and THE CITY OF PALM SPRINGS ("THE CITY" or "CITY"). CALIFORNIA, a Municipal Corporation. 1. DEFINITIONS t As used heroin. the following terms shall have the meanings specified below: 1.1 "CITY"shall mean THE CITY OF PALM SPRINGS, CALIFORNIA, a Municipal Corporation, its subsidiaries, successors, or assigns, as well as its agents, employees, officers, directors, or elected or appointed officials. 1.2 "CARRIER" shall mean, CARRIER CORPORATION, is divisions, subsidiaries, agents, employees, representatives, subcontractors, insurers, predecessors and successors and all other persons, firms or entities related to CARRIER CORPORATION. 2. RECITALS: 2.1 On or abct:t February 19, 1991,THE CITY OF PALM SPRINGS filed its action in the Superior Court of the State of California for the County of Riverside, Indio Branch, entitled The City of Palm Sorings v. Carrier Corporation, a corporation. Carrier Building Systems and Services, a corporation. AQuatrol, H corporation. Momar. Inc.. a corporation and Drys I through 25. inclusive. bearing Case No. INDIO 63474. Said action was removed to the United States District Court for the Central District of California on or about May 14, 1991 and thereafter bore the United States District Court Case No. SA 01+05 '93 10:51 4':�81! 2503 ROBIE 4 %ATTBAE . Q 004 CV•91.261 AHS (RWRx). In said action THE CITY OF PALM SPRINGS alleged that CARRIER CORPORATION was liable to THE CITY for breach of contract, breach of warranty, and negligence. These claims arose out of a scMcc agreement entered between THE CITY OF PALM SPRINGS and CARRIER CORPORATION whereby CARRIER through its subcontractor AQVATROL was to provide water treatment services for the HVAC System at THE PALM SPRINGS Convention Center. 2.2 CITY, as party to this Settlement Agreement and Release, hereby agrees, Pursuant to the terms and conditions set forth herein, to a full and final resolution of all past, presenk future, and potential claims, controversies, agreements and disputes between and among CITY and CARRIER arising out of the matters referred to in Paragraph 2.1, above. 3. TERMS OF CONSIDERATION: 3.1 CITY does hereby irrevocably and unconditionally release, acquit, and forever discharge CARRIER from any and all actions, causes of action, present or future claims, demands, damages, obligations, liability, costs, including attorneys' fees and costs, toss of services and expenses, whether in law or in equity or otherwise, on account of, or in anyway growing out of or related to any and all known and unknown injuries and damages resulting or to result from or by reason of the conduct which is the subject of the Complaint referred to in Paragraph 2.1 above for and in consideration of the following: SETTLEMENT AGREEMENT AND qfT EASE OF ALL CLAIMS Pugc 2 or 3 Oi U5 '93 10:51 82l 2583 ROBIE i YiTrEAI� U05 A. CARRIER shall perform, at no charge to THE CITY OF PALM SPRINGS the work set forth in the contract which is attached as Exhibit "A" as part of an HVAC retrofit for THE CITY Council Chambers. This work is to be performed pursuant to the terms and conditions set forth in the contract entered between THE. CITY and CARRIER attached hereto as Exhibit "A'. B) THE CITY OF PALM SPRINGS shall enter into service agreements with CARRIER CORPORATION for maintenance services at three (3) locations known as the Sunrisa Complex, Municipal Complex and the Palm Springs Airport. CARRIER shall perform the maintenance services for a period of five years pursuant to the terms and conditions set forth in the contracts which are attached hereto as Exhibits "B", "C" and "D" respectably. C) It Ls further agreed that any dispute arising between THE CITY and CARRIER relating to the contracts attached as Exhibits"A", "B", "C'and"D" shall be resolved pursuant to the terms and conditions of said agreements and any such dispute shall not void, modify, or in any mariner deragate the full release of CARRIER by THE CITY of all claims, past, present or future related to the matters set forth in Paragraph 2.1 abase. 4. WARNINGS: 4.1 All persons signing this Release must read it and understand it in its entity and truly intend to terminate. irrevocably, all their rights to further pursue or SETMEMENT ACREEMENT AND RE1P.A5E OF ALL CLUM5 Pap 3 of 8 ol •UJ '9J 10:52 me 624 2563 RQUE t, ]LArriAr 00d prosecute their causes of actions, demands, or claims against the described Releases. In particular, please note: A. THE CITY acknowledges that there is a risk that subsequent to the execution of this Settlement Agreement it may discover, incur or suffer claims which were unknown or unanticipated at the rime the SettlemcatAgreemcutis executed,including without limitation, unknown or unanticipated claims which, if known on the date this Settlement Agreement is being executed may have materially effected the decisions to execute this Settlement Agreement. Nonetheless, THE CITY desires to execute this Settlement Agreement and to hereLy waive, relinquish and discharge any such claim and waive, relinquish and discharge any and all the rights it may have under§ 1542 of the CM]. Code of California and any similar law of any state or territory of the United States. California 'Civil Code 4 1542 provides as follows: h 'A gcnevil roles-- does not extend to claims c1: which the creditor does not know or suspect to exist in ius favor at the time of executing the release, which if known by him must have k' materially affected his settlement with the 4 debtor." 4.2 The a;ree:ments set forth above in Paragraph 3.1 and attached as Exhibits"A", "B', "C" and "D" are the entire and only consideration for this Release. CITY shall be responsible for payment of any expenses to any other person or entity who may -ETrLED1ENi AGREPMENT AND RELPASE OF ALL CL1LNO -� Pate 4 of s ii- � y. iY _ O1. OS 9J 10:32 Q2�)21 238J ROBIE k YA=I kI Q'i00' hold a lien on, or assert a claim to, any settlement recovered by THE C=in the litigation described in Paragraph 2.1 above. CITY is solely responsible for payment of all its attorneys' fees and costs related to the matters described in Paragraph 2.1. 4.3 This Settlement Agreement and Release is the result of a compromise and shall never, at any time for any purpose, be considered as an admission of liability or responsibility by CARRIER which continues to deny such liability and to disclaim such responsibility. 5. COVENANTS. 5.1 Upon the :signing of the contracts set forth in Paragraph 3.1 and attached as Exhibits "A". "B", "C" and "D", CITY shall direct its attorney to advise Judge Stotler that the action shall not be refiled as allowed by Judge Stoder's Orders of January 11, 1993 and March 12, 1993 and that the Dismissal of the action shall be final and with prejudice. 5.2 CITY hereby represents, warrants and covenants that it has not _ assigned or otherwise transferred, and is not purporting to assign or otherwise transfer to anyone, any of the claims, righm demands, actions and causes of action released and settled by virtue of this Agreeateut and Release. 5.3 This Release and the Ternts, Recitals, Warnings and Covenants contained herein. shall be construed under, interpreted in accordance with, and enforced SETrt.EM£.NT AGRELMINTANn RELEASE OF ALL CLUMS Papa S of 8 01%05.93 10:5t $t it{ 2363 ROBIE k ]LA-171 19 a005 under the laws of the State of California, including but not limited to California Code o Civil Procedure $ 664.6 which provides: "If parties to pending litigation stipulate in writing or orally before the court for settlement of the case:, or part thereof. the court, upon motion, mriy enter judgment pursuant to the terms of the settlement." 5.4 Should any portion of this Agreement and Release be determined to be void or unenforceable, that determination shall not affect the validity or enforceability of the remaining provisions of this Agreement and Release. This Agreement and Release may be amended only by an instrument in writing executed by all the parties hereto. 3.5 In the event that any lawsuit, motion, petition or other proceeding is necessary to enforce any of the provisions of this Settlement Agreement and Release, the prevailing party in that lawsuit, motion, petition or other proceeding shall be entitled to recover attorneys' fees and costs incurred in such action, in addition to any relief otherwise recoverable. 6. REPRESENTATION 13Y COUNSEL: 6.1 CITE" represents and warrants that it has been represented by counsel regarding the transactionswhiclt arc tlrc subjects of this Settlement Agreement and Release, that it has discussed its claims with its own legal counsel, has had the opportunity to review this Settlement Agreement and Release with counsel, and enters into this Settlement Agreement and Release upon the legal advice of counsel, that said counsel has explained SE771r.1(nN'1'AO}ii?ENEti1'&No RELEASE OF ALL CLAIMS Page 6 ar 3 0{;o3�9J lU:3J IC2110:4 2363 ROBIE R YiT IUI 009 the terms of this Setilement Agre:entent and Release, and that CITY fully understands and voluntarily accepts the Terms. Recitals. Warnings and Covenants of this Settlement Agreement and Release. 7. COUNTERPARTS: 7.1 This Agreement may be executed in counterparts. IN WITNESS WHERECF. the undersigned, an behalf of THE CITY OF PALM SPRINGS, California, does hereby execute this Settlement Agreement and Release this c;� / day of April, 1993. t Wage The foregoing Settlement Agreement and Release was executed in the presence of and under the advise and direction of counsel for THE CITY OF PAL-Ni SPRINGS. DATED: April '2 1993 RUTAN & TUCKER ATTEST: City of Palm Springs ( f `�—�✓ SCO NE ty Clerk Attorneys for Plaintiff, CITY OF PALM SPRIGS APPROYED BY THE CITY COUNCIL BYRE& NO. 3 78 mrs fl 3.z�z 3 SErrLEMENT ACRMSIENT AND RELEASE OF ALL CLUMS Pact 7 of 3 IN WITNESS WHEREOF, the undersigned, on behalf of CARRIER CORPORATION does hereby execute this Settlement Agreement and Release this day of April, 1991. The foregoing Settlemem Agreement and Release was executed under the advise and direction of counsel for CARRIER CORPORATION. DATED: April�'---:% , 1991 ROBIE & MATJFHAI I� I EDITIff N ATPI-IAI Attorneys for Defendant, CARRIER CORPORATION ...I RELEASESI PALMSPRINGS SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Page 8 of 8 �lepair Service AgAment This AGREEMENT entered into by and between: City of Palm Springs 425 North Civic Drive Palm Springs, CA 92262 Hereinafter referred to as "CUSTOMER" and BUILDING SYSTEMS AND SERVICES DIVISION OF CARRIER CORPORATION Hereinafter referred to as "CARRIER" 381033052-A 39N%-AHU 3/l/93 PROPOSAL NO PROPOSAL TYPE PROPOSAL DATE AGREEMENT NO, • This AGREEMENT shall be administered by CARRIER'S office presently located at: Carrier Building Systems and Services 2735 Saturn Street. Brea, CA 92621 • The service(s)and/or parts to be provided at the following CUSTOMER location(s): City of Palm Springs - Council Chambers 425 North Civic Drive Palm Springs, CA 92262 • SCOPE OF SERVICE to be provided by CARRIER in accordance with the following description: ° City Council HVAC Retrofit - Please See Attached Scope of Service - • Including any attachments indicated(with an'x') below:(N/A is Not Applicable) n/a proposal dated n/a xx SCOPE OF SERVICE Page(s) 3 of 3 a/a Otherattachment(s) n/a • AGREEMENT PRICE is$ A/O CNQ GE, ,excluding applicable taxes.This price is based on normal working hours, Monday through Friday, unless otherwise stated herein. If the work is delayed or stopped at the request of the CUSTOMER or requirements of third parties,additional charges will be applicable. • The undersigned affirm thatthey have read and understand the entire AGREEMENT including the Terms and Conditions appearing on the reverse side. Execution by Authorized Representatives: SUBMITTED BY: �. rr.!{ DATE: 3/1/93 CUSTOMER ACCEPTANCE: Edward D. -Waite CARRIER APPROVAL, Branch Hanager BUILDING SYSTEMS&SERVICES Robert Simon DIVISION OF CARRIER CORPORATION Customer Company Name Marketing Rep. X Customer Acceptance(typed/printed name) Camer Approval(typed/pnnted name) x Title Title Y. Customer Acceptance(signature) Date Carrier Approval(signature) Date 49M. BUILDING SYSTEMS AND SERVICES S-5299 91 T-asi pair Service Agreement TERMS AND CONDITIONS 1.TERMS OF PAYMENT to CARRIER shall be net upon receipt of invoice.In addition to the price,the CUSTOMER shall pay CARRIER any applicable taxes or government charges which are required in connection with the service or material furnished. 2. PARTIAL INVOICE(S) may be submitted for any portion of delivered material and/or completed work. 3 ADDITIONAL REPAIRS/MATERIALS: Due to the complexity of the equipment,as work progresses there may be the need for additional repairs or materials which could not have been anticipated at the time this agreement was accepted. Therefore,the price,subject to provisions herein,may be adjusted.However.CARRIER shall notify CUSTOMER of the price and description of any additional work or material If CUSTOMER does not notify CARRIER to proceed with such additional work or material, the CUSTOMER agrees to pay CARRIER for all work completed and/or material furnished. 4 DELAYS occasioned by conditions beyond the reasonable control of either party shall not be the liability of either parry to this agreement. 5. WARRANTY: CARRIER guarantees that all service provided under this AGREEMENT shall be performed,,,i,n,..,a, , .. workmanlike manner.Any claim for defective workmanship must be provided to CARRIER by written notice within sixQw 1JW after completion of work upon which CARRIER agrees to remedy and redo any such service(s)in a timely manner without cost to the customer. CARRIER also warrants against defects in materials,and workmanship of all CARRIER part(s)or components)supplied hereunder for a period of one year from date of installation.If any part(s)or ccmponent(s)should prove defective during the aforementioned warranty period,CARRIER will at its option repair,replace-ww+emmiwifor any such items provided they were not damaged,abused,or effected by chemical properties. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,EXPRESS,IMPLIED OR STATUTORY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CARRIER'S obligation to repair, replace,perform a seance, any defective part(s), component(s), or service shall be CUSTOMER'S exclusive remedy under this AGREEMENT. Pants), component(s) or services furnished by others to CARRIER carry the same guarantee to CUSTOMER as CARRIER receives. 6. INSURANCE AND LIENS: CARRIER warrants thatt the work and/or materials furnished are free from all liens of whatsoever nature,that it has complied with all applicable Federal and State laws,ordinances or regulations concerning the work to be performed, materials furnished and employees performing the work hereunder.BARRIER agrees to maintain adequate insurance to cover bodily or property damages while upon CUSTOM ER'S premises and during its performance of the service. 7.CARRIER'S MAXIMUM LIABILITY based upon amr claim or cause of action(except for personal injuries)shall not exceed the price allocable In this agreement to any product or service alleged to be the cause of any loss or damage to CUSTOMER. 8. CARRIER SHALL NOT, under any circumstances, be liable for any accident, injury, breakage, loss or damage to the equipment or machinery,appliances,or property connected therewith,or the resultant consequences,unless such loss or damage is caused by negligent acts of omission or commission by CARRIER'S agents,employees or subcontractors. 9. CARRIER SHALL NOT BE LIABLE for damages due to chemical/electro-chemical attack, any currently existing defective condition(s) including any future progression of such defective conditions(s), or any other cause beyond CARRIER'S reasonable control. ' 10 NEITHER PARTY to this agreement shall hold the other responsible for any indirect or consequential damages of a commercial nature such as,but not limited to,loss of revenue or loss of use of any equipment er faciti ties;or far commercial damages based on strict liability. 11. BOTH PARTIES agree that any claim arising from the performance or nonpVorma ce of this agreement, whether based upon contract,negligence,strict liability or otherwise,shall be brought within S4 eargfrom the date such claim arose. 12.IN THE EVENT of a judicial determination that any provision within this agreement is unenforceable or fails of its essential purpose,such determination shall have no effect on the enforceability of the balance of the provisions herein. 13.CARRIER SHALL NOT be required to perform tests,install any items of equipment or make modifications that may be recommended or directed by insurance companies,government,state municipal or other authority. 14.CARRIER shall provide the services and/or parts in accordance with the"Terms and Conditions","Scope of Service", and attachments(If any)which constitutes an entire agreement and shall become valid after acceptance by CUSTOMER and approved by CARRIER.Reference to CUSTOMER'S request for quotation or other documents are made a part of this agreement only to the extent that such items or terms are consistent with this agreement. No course of prior dealings between parties and no usage of the trade shall be relevant to supplement or explain any of the terms and conditions hereof. 15, NOT INCLUDED is the identification, detection, abatement, encapsulating or removal of asbestos, or products or materials containing asbestos or similar hazardous substances. In the event that CARRIER encounters any asbestos product or material in the course of performing its work,CARRIER shall have the right to discontinue its work and remove its employees from the project,orthat portion of the project wherein such product or material was encountered, until such product or materials, and any hazards connected therewith are abated,encapsulated or removed,and/or it is determined that no hazard exists.CARRIER shall receive an extension of time to complete its work hereunder and compensation for delays encountered as a result of such situation and correction of same. Repair Service Agreement Repair Service Agreement SCOPE OF SERVICE City of Palm Springs Page 3 of 3 381Q33052-A HVAC RETROFIT 1. Remove existing equipment. 2 . Install Carrier 39NX air handling unit with mixing box in existing mechanical room. a. High efficiency 10hp motor. b. Stainless steel condensate drain pan. C. Coil sizing requested per City letter of 2/1/93 to be the following: * eight row, eight fin per inch chilled water coil * two row, eight fin per inch hot water coil 3 . Install new duct work as required to connect to existing duct work. Trnm a. Install "additional return air duct�� Dias Roomfjer07 ` 4 . Install chilled water valves and controls per unit, run necessary piping and electrical. 5. Roof over mechanical room area to be cut for equipment access and installation of an outside air economizer. Roof penetration to be made large enough to accomodate equipment installation in mechanical room below. Roof penetration to be made water tight. 6. Work schedule will take appoximately 20 working days until completion. 7. Upon acceptance of project, the work start date will be scheduled at a date: mutually acceptable to customer and Carrier. S . Calibrate and start up system. 9 . Provide design drawing of modification. 8-5299A Repair Service Agreement 917-350 ADDITIONAL TERMS AND CONDITIONS Page 2a Warranty 3 (a) Provided, however, that these "guarantees" will not provide CUSTOMER with less protection than otherwise provided CUSTOMER pursuant to the terms of this AGREEMENT, and will not derogate from the protection otherwise afforded CUSTOMER under this AGREEMENT. 13(b) The work shall meet all axle requirements applicable at the time the work is performed. APPROVED BY CARRIER: APPROVED BY CUSTOMER: X Robert W. Parkins Type/Print Name Type/Print Name X Signature Signature REPAIR SERVICE AGREEMENT ADDITIONAL TERMS AND CONDITIONS Page 2b 6 (a) INSURANCE. Carrier shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to CUSTOMER, during the entire term of this AGREEMENT including any extension thereof, the following policies of insurance: (i) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than either (A) a combined single limit of $1, 000, 000 . 00 for bodily injury, death and property damage or (B) bodily injury limits of $500, 000 . 00 per person, $1, 000 , 000 . 00 per occurrence and $1, 000, 000 . 00 products and completed operations and property damage limits of $500, 000 . 00 per occurrence and $500, 000 .00 in the aggregate. (ii) Worker' s Compensation Insurance. A policy of worker' s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both CARRIER and CUSTOMER against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by CARRIER. in the course of carrying out the work or services contemplated in this AGREEMENT. (iii) Automotive Insurance . A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (A) bodily injury liability limits of $250, 000 . 00 per person and $500, 000 . 00 per occurrence and property damage liability limits of $100, 000 . 00 per occurrence and $250, 000 . 00 in the aggregate or (B) combined single limit liability of $500, 000 . 00 . Said policy shall include coverage for owned, non- owned, leased and hired cars . The policies of insurance required by this AGREEMENT shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by CUSTOMER. APPROVED BY CARRIER: APPROVED BY CUSTOMER: X Type/Print Name Type/Print Name X Signature Signature REPAIR SERVICE AGREEMENT 0 ADDITIONAL TERMS AND CONDITIONS Page 2c City shall be given 30 days prior written notice by registered mail of any amendment or cancellation of said insurance. In the event any of said policies of insurance are cancelled, CARRIER shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the Contract Officer. No work or services under- this AGREEMENT shall commence until CARRIER has provided CUSTOMER with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverage and said Certificates of Insurance or binders are approved by CUSTOMER. CARRIER agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which CARRIER may be held responsible for the payment of damages to any persons or property resulting from CAF:RIER'S activities or the activities of any person or persons for which CARRIER is otherwise responsible. In the event CARRIER subcontracts any portion of the work, the contract between CARRIER and such subcontractor shall require the subcontractor to maintain the same policies of insurance that CARRIER is required to maintain pursuant to this Section. 11. INDEMNIFICATION. CARRIER agrees to indemnify, protect, defend and hold CUSTOMER, its officers, agents and employees harmless from, any and all actions, suits, claims, damages to persons or .property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity (other than CUSTOMER) arising out of or in connection with the negligent performance of the work, operations or activities of CARRIER, its agents, employees, subcontractors, or APPROVED BY CARRIER: APPROVED BY CUSTOMER: X Type/Print Name Type/Print Name X Signature Signature REPAIR SERVICE AGREEMENT ADDITIONAL TERMS AND CONDITIONS Page 2d invitees, provided for herein, or arising from the negligent acts or omissions of CARRIER hereunder, or arising from CARRIER S negligent performance of or failure to perform any term, provision covenant or condition of this AGREEMENT, whether or not there is concurrent passive or active negligence on the part of CUSTOMER, its officers, agents or employees but excluding such claims or liabilities to the extent arising from the active negligence or willful misconduct of CUSTOMER, its officers, agents or employees . In no event shall CARRIER be required to defend or indemnify the City for its own active negligence. 17. COMMENCEMENT AND COMPLETION DATES. CARRIER shall commence work as soon as possible and shall complete all work no later than 30 days thereafter. APPROVED BY CARRIER: APPROVED BY CUSTOMER: Type/Print Name Type/Print Name F81\241NO14084-0045\33173. 04/02193 REPAIR SERVICE AGREEMENT Service Agreement This AGREEMENT entered into by and between: ! City of Palm Springs Sunrise Complex Palm Springs, CA 92263 Hereinafter referred to as "CUSTOMER' and BUILDING SYSTEMS AND SERVICES DIVISION OF CARRIER CORPORATION Hereinafter referred to as "CARRIER" _ _381Q23007-B AM February 26, 1993 PROPOSAL NO PROPOSAL TYPE PROPOSAL DATE AGREEMENT NO BUILDING SYSTEMS AND SERVICES S-60(9-88) 917-067 0 ! • SERVICE AGREEMENT service(s)to be provided at the CUSTOMER'S location(s)as indicated on preceeding page or on the attached Schedule Page(s).The page(s) indicated with an"X" below are part of this AGREEMENT. �a _ ©m `s'i- COOLING 3, HEATING , HEATING& _ _--:__ AIR&WATER COOLING I — DISTRIBUTION e�I CONTROLS XX WATER CHILLER ---' BOILER '- HEAT PUMP - - AIR HANDLER — DOC -' PACKAGED AIR - - FURNACE -- HEAT RECLAIM _ COOLING TOWER — ELECTRIC CONDITIONER -- HEAT EXCHANGER - PACKAGED AIR -- FILTER SVC. — ELECTRONIC XX ANALYSIS SVC UNIT HEATER CONDITIONING& -- PUMPS —PNEUMATIC j XX HEATING NON-DESTRUCTIVE -- TERMINALS TESTING _--WATER TREATMENT DIALOG SERVICE(equipment monitoring) Other. • This AGREEMENT shall be administered by CARRIER'S office presently located at: Carrier Building Systems and Services 2735 Saturn Street Brea, CA 92621 • CARRIER shall provide maintenance service in accordance with the "General Provisions", "Scope of Service", "Schedule Page(s)",and any"Amendrnent(s)"which constitute(s)an entire AGREEMENT and shall become valid after acceptance by CUSTOMER and approval by CARRIER. Reference to CUSTOMER'S request for quotation or other documents are made a part of this AGREEMENT only to the extent of specifying the nature of the goods and services ordered and to the extent that such items or terms are consistent with this AGREEMENT. No agent of CARRIER or employee shall have authority to after orwaive any clause of this AGREEMENT unless phorwrltten approval is obtained from CARRIER headquarters. • The first year rice is$ $ 5988.00 $ 499 .00 month y p per year payable$ per Any subsequent price may be adjusted on any anniversary date In accordance with the PRICE ADJUSTMENT page. During new equipment warranty,the AGREEMENT aT price will be$ n/a per -_. n/a It is understood that the warranty expires • This AGREEMENT shall become effective on /1/93 and shall continue �w r - Yive_ year(s) Amill"liGiiGGi • The undersigned affirm that they have read and understand the entire AGREEMENT including the General Provisions appearing on the reverse side. Execution by Authorized Representatives. Page 2 of 9 n t SUBMITTED BY: 3/1/93-- Robert Simon DATE. --- CUSTOMER ACCEP ANCE:✓Marketing Rep. CARRIER APPROVAL: BUILDING SYSTEMS&SERVICES DIVISION OF CARRIER CORPORATION Customer Company Name x Customer Acceptance(typed/printed name) Canner Approval(typed/printed name) Title Title X Customer Acceptance(signature) Date Carrier Approval(signature) Date S-60A(9-88) 917-068 � 1 GENERAL PROVISIONS i 1 PAYMENT shall be net upon receipt of invoice.CARRIER reserves the right to discontinue its service anytime payments j have not been made as agreed. In addition to the AGREEMENT price, the CUSTOMER shall pay CARRIER any i applicable taxes or government charges,existing or imposed after acceptance date,which are required in connection with the service or material furnished under this AGREEMENT. I j2. CUSTOMER SHALL permit access to the building and the use of building services,shall keep areas adjacent to the equipment free of extraneous material,move any stock,fixtures,walls,or partitions needed to perform the work under this AGREEMENT and shall promptly notify CARRIER of any unusual operating conditions during the time when CARRIER is not on the job site. 3. NORMAL WORKING HOURS will apply to all services including major repairs performed under this AGREEMENT exceptfor unscheduled service if so indicated on Schedule Page(s).Services requested by CUSTOMER which are not covered under this AGREEMENT,will be invoiced at CARRIER'S prevailing labor and parts charges. 4. EXCLUDED from this AGREEMENT, unless otherwise stated herein, are repairs cr replacements of disconnect j switches,circuit breakers and items not normally mechanically maintainable such as:ductwork, casings, cabinets, ifixtures.structural supports,grillage,towerfill,water piping,steam piping,drain piping,boiler shell,boilertubes and boiler refractory. 5 NOT INCLUDED in this AGREEMENTare repairs,replacements,alterations,additions,adjustments,repairsbyothers, J or unscheduled calls any of which are necessitated by negligent operation,abuse, misuse,prior neglect,vandalism, I obsolescence,building system design,damagedue to freezing weather,corrosion,erosion,oranyothercausebeyond CARRIER'S control. 5. NOT INCLUDED is the identification, detection, abatement, encapsulating or removal of asbestos, or products or j materials containing asbestos or similar hazardous substances. In the event that CARRIER encounters any asbestos product or material in the course of performing its work, CARRIER shall have the right to discontinue its work and remove its employees from the project,or that portion of the project wherein such product or material was encountered,until such product or materials,and any hazards connected therewith are abated,encapsulated or removed,and/or it is determined that no hazard exists.CARRIER shall receive an extension of time to complete its work hereunder and compensation for delays encountered as a result of such situation and correction of same. 7 CARRIER SHALL NOT,under any circumstances,be liable for any accident,injury,breakage,Joss or damage to the equipment or machinery, appliances, or property connected therewith, or the resultant consequences, unless such loss or damage is caused by the negligence of CARRIER'S agents,employees,or subcontractors.Also CARRIER shall not be required to perform tests,install any items of equipment or make modifications that may be recommended or directed by insurance companies,government,state, municipal or other authority. 8. DELAYS occasioned by conditions beyond the reasonable control of either party shall not be the liability of either party to this AGREEMENT 9. WARRANTY: CARRIER guarantees that all service provided under this AGREEMENT shall be performed in a i workmanlike manner Any claim for defective workmanship must be provided to CARRIER by written notice "tie r+a s.. P p r�-F- termination date of this AGREEMENT upon which CARRIER agrees to remedy and redo any such service(s)in a timely manner without cost to the customer CAF,J�IER asgwaFfar>is_�igainst deg>r in patE.r lq and w4man$4ti(,1,jlf.glj CARRIER-Part(s) or Component(s) f ' a suppl , herqunder,for a period of oneyear from date of InstaltaVEA orlintil,lhe_terminatQ. F1.�tW AGREEMENT, whichever earlier if any part(s)orcomponent )should prove defectivedunng the aforementioned warranty period, CARRIERwillatitsoptionrepair,replaceorissuecreditforanysuchitemsprovidedtheywerenotdAaged,abused'or i effected by chemical properties I i THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. I CARRIER'S obligation to repair,replace.perform a service.or ssue credit for any defective pad(s),component(s),or service shall be CUSTOMER'S exclusive remedy under this AGREEMENT. i Parris), component(s) or services furnished by others to CARRIER carry the same guarantee to CUSTOMER as CARRIER receives. If the CUSTOMER requests parts or services not included in this AGREEMENT and has not selected the option for REPLACEMENT PARTS or other optional service, it is agreed that all requested perils), componential or services supplied by CARRIER will be accepted subject to the CARRIER Conditions of Sale issued with each order. 10. NEITHER PARTY to this AGREEMENT shall hold the other responsible for any indirect or consegential damages of a j commercial nature such as, but not limited to,loss of revenue or loss of use of any equipment or facilities 11 BOTH PARTIES agree that any claim arising from the performance or nonperformance of this AGREEMENT,whether based upon contract, negligence strict liability or otherwise, shall be brought within one(1)year from the date such claim arose. Page 3 AV- LEVEL OF SCOPE OF SERVICE SERVICE Page 4 of 9 The following service level(s) to be included in this Service Agreement as indicated on the attached schedule page(s): 1.0 INSPECT AND REPORT (IR) service to be provided by CARRIER such that the equipment listed herein will receive at least the number of inspections as stated on the attached Schedule page(s). Each inspection will be in accordance with CARRIER'S standards and, unless otherwise stated herein will include but is not limited to the following: • EACH OPERATING INSPECTION: Log equipment noting general condition, operating data, noises, vibration, temperature and pressure. Where applicable inspect control and safety devices,check for proper refrigerant solution,lubricant j and water level, confirm control and equipment responses, adjust for normal operation, provide inspection reports including recommendations for corrective ! actions. I • EACH STOP INSPECTION:(Equipment not normally operating).Where applicable inspect all rotating devices,couplings and drives,inspect hold down bolts,inspect electrical connections,perform functional checks on control and safety devices, provide inspection report identifying any problem area including recommendations for corrective actions. 2.0 OIL AND GREASE(OG) service includes all (IR) services plus those routine tasks which do not require component disassembly, but may require inspection cover or plate removal. Unless otherwise stated herein, the OIL AND GREASE service includes but is not limited to the following: • Annual oil change, routine lubricating,replace oil filters, replace refrigerant filters, touch-up painting, blow down dirt legs/strainers, cleaning of control starter contacts, clean electronic modules, clean drain pans, leak testing of any disassembled joints. 3.0 ANNUAL PREVENTIVE MAINTENANCE (AM) service includes all the (IR) and j (OG)services plus those recurring tasks which are performed on a yearly cycle as recommended by the equipment manufacturer and may require minor disassembly and removal of available inspection covers. Unless otherwise stated herein, the ANNUAL PREVENTIVE MAINTENANCE service includes, but is not limited to the following: • Annual preventive maintenance tasks, internal inspection, clean oil sump, replacement of yearly expendable parts, minor adjustments, minor repairs, alignment check,calibrate controls,measure and record accessible clearances, leak testing of any disassembled joints or interconnecting refrigerant piping. i I j i S-fi08(2-89) 917-069 0 • ADDITIONAL GENERAL PROVISIONS Page 3a Warranty 9 (a) . Provided, however, that these "guarantees" will not provide CUSTOMER with less protection than otherwise provided CUSTOMER pursuant to the terms of this AGREEMENT, and will not derogate from the protection otherwise afforded CUSTOMER under this AGREEMENT. APPROVED BY CARRIER: APPROVED BY CUSTOMER: X Robert W. Parkins Type/Print Name Type/Print Name x Signature Signature SERVICE AGREEMENT i 0 ADDITIONAL GENERAL PROVISIONS Page 3b 10 . INSURANCE. Carrier shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to CUSTOMER, during the entire term of this AGREEMENT including any extension thereof, the following policies of insurance: (a) Comprehensive General Liabilitv Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than either (i) a combined single limit of $1, 000, 000 . 00 for bodily injury, death and property damage or (ii) bodily injury limits of $500, 000 . 00 per person, $1, 000 , 000 . 00 per occurrence and $1, 000, 000 . 00 products and completed operations and property damage limits of $500, 000 . 00 per occurrence and $500 , 000 . 00 in the aggregate. (b) Worker' s Compensation Insurance. A policy of worker' s compensation insurance in such amount as will fully comply with the laws of the State of: California and which shall indemnify, insure and provide legal defense for both CARRIER and CUSTOMER against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by CARRIER in the course of carrying out the work or services contemplated in this AGREEMENT. (c) Automotive Insurance. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of $250, 000 . 00 per person and $500, 000 .00 per occurrence and property damage liability limits of $100, 000 . 00 per occurrence and $250, 000 . 00 in the aggregate or (ii) combined single limit liability of $500, 000 . 00 . Said policy shall include coverage for owned, non-owned, leased and hired cars . The policies of insurance required by this AGREEMENT shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, APPROVED BY CARRIER: APPROVED BY CUSTOMER: y Robert W. Parkins Type/Print Name Type/Print Name X Signature Signature SERVICE AGREEMENT 0 0 ADDITIONAL GENERAL PROVISIONS Page 3c unless such requirements are waived by CUSTOMER. City shall be given 30 days prior written notice by registered mail of any amendment or cancellation of said insurance. In the event any of said policies of insurance are cancelled, CARRIER shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the Contract Officer. No work or services under this AGREEMENT shall commence until CARRIER has provided CUSTOMER with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverage and said Certificates of Insurance or binders are approved by CUSTOMER. CARRIER agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which CARRIER may be held responsible for the payment of damages to any persons or property resulting from CAR.RIER' S activities or the activities of any person or persons for which CARRIER is otherwise responsible. In the event CARRIER subcontracts any portion of the work, the contract between CARRIER and such subcontractor shall require the subcontractor to maintain the same policies of insurance that CARRIER is required to maintain pursuant to this Section. 11 . INDEMNIFICATION. CARRIER agrees to indemnify, protect, defend and hold CUSTOMER, its officers, agents and employees harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities" ) that may be asserted or claimed by any person, firm or entity (other than CUSTOMER) arising out of or in connection with the negligent performance of the work, operations or activities of CARRIER, its agents, employees, subcontractors, or APPROVED BY CARRIER: APPROVED 'BY CUSTOMER: X Robert W. Parkins Type/Print Name Type/Print Name X Signature Signature FSi\241\0140&4-0045\33191. 04/05/93 SERVICE AGREEMENT ADDITIONAL GENERAL PROVISIONS Page 3d invitees, provided for herein, or arising from the negligent acts or omissions of CARRIER hereunder, or arising from CARRIER' S negligent performance of or failure to perform any term, provision covenant or condition of this AGREEMENT, whether or not there is concurrent passive or active negligence on the part of CUSTOMER, its officers , agents or employees but excluding such claims or liabilities to the extent arising from the active negligence or willful misconduct of CUSTOMER, its officers, agents or employees . In no event shall CARRIER be required to defend or indemnify the City for its own active negligence. 12 . COST OF LIVING ADJUSTMENT. Upon each anniversary date of the this AGREEMENT„ the AGREEMENT price shall be adjusted in proportion to changes in the Consumer Price Index. Such adjustment shall be made by multiplying the original AGREEMENT price by a fraction, the numerator of which is the difference between (i) value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and (ii) the value of the Consumer Price Index for the same calendar month immediately prior to Commencement Date and the denominator of which is equal to the Consumer Price Index specified in subsection (ii) above. The "Consumer Price Index" to be used in.such calculation is the Consumer Price Index. All Urban Consumers (All Items) , for the Los Ancreles-Anaheim- Riverside Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics (1982-84 = 100) . If both an official index and one or more unofficial indices are published, the official index shall be used. I£ said Consumer Price Index is no longer published at the adjustment date, it shall le constructed by conversion tables included in such new index. APPROVED BY CARRIER: APPROVED BY CUSTOMER: X Robert W. Parkins Type/Print Name Type/Print Name x Signature Signature FS1\2411014094-0045\33191. 04/02/93 SERVICE AGREEMENT REPLACEMENT PARTS SCOPE OF SERVICE UNSCHEDULED SERVICE OPTIONS Page 5 of 9 REPLACEMENT PARTS will be included if indicated: "as required" or "as listed herein" on any attached I Schedule page(s). Unless otherwise stated, the "as required" parts are provided and installed by CARRIER necessary to perform the level of service selected; the"as listed herein" parts are provided and installed by CARRIER only to the extent of the following: Replacement parts included are those required to complete annual stop maintenance including gaskets, nitrogen and cleaners . Steam valve will be inspected and resealed the first year of contract. Steam valve will be inspected the third year of contract and new parts will be provided by the City of Palm Springs. UNSCHEDULED SERVICE will be included if indicated:"as required"or"as specified herein"on any attached Schedule page(s). Unless otherwise stated, the "as required" UNSCHEDULED SERVICE is provided when necessary to diagnose problems and perform minor adjustments between scheduled inspection; the "as specified herein" UNSCHEDULED SERVICE is provided only to the extent of the following: Unscheduled service is available twenty-four hours a day, seven days a week at Carrier's prevailing labor rates. Normal business hours consist of Monday through Friday, 7:30 AM to 4:30 PM. Should additional service by required after normal business hours, or on holidays, client will be billed for premium time. S-60D(I.89) 917-07T WATER CHILLER COOLING SCHEDULE EQUIPMENT Page 6 of 9 City of Palm Springs CUSTOMER PROPOSAL NO. AGREEMENT NO. Sunrise Complex, Palm Springs, CA 92263 LOCATION(If different than page 1) PROPOSAL DATE EFFECTIVE DATE A'YES" indication means the service(s) is included In this AGREEMENT.A"NO"indication means the service(s) is not included. LEVEL OF SERVICE Yes/No ITEM Yes 1. INSPECT AND REPORT: 3 OPERATING INSPECTIONS AND 1 STOP INSPECTION(S)PER YEAR. Yes 2,OIL AND GREASE includes Item 1. Yes 3.ANNUAL PREVENTIVE MAINTENANCE includes items 1.and 2. No 4.MULTI-YEAR PREVENTIVE MAINTENANCE includes items 1.,2.and 3. No 5. FULL MAINTENANCE includes items 1.,2.,3.and 4. SERVICE OPTIONS *Yes REPLACEMENT PARTS n/a AS REQUIRED for above level or xx AS LISTED HEREIN. **Yes UNSCHEDULED SERVICE n/a AS REQUIRED or xx AS SPECIFIED HEREIN. ***Yes TUBE INSPECTION head removal by xx CARRIER or n/a CI�STOMER on: xx cooler, xx condenser, xx absorber, n/a generator. Yes TUBE BRUSH CLEANING includes TUBE INSPECTION, cooler up to one times per 5 th year condenser up to one times per year Acid cleaning extra absorber up to one times per 5 th year generator up to n/a times per n/a No TUBE REPAIRS—REFRIGERANT SIDE:must Include items 4.or 5.and TUBE BRUSH CLEANING. No TUBE REPAIRS—WATER SIDE:must Include Items 4.or 5.,TUBE REPAIRS— REFRIGERANT SIDE and No WATER TREATMENT. EQUIPMENT LIST QUANTITY MANUFACTURER: COMPONENT/UNIT ID. MODEL NO. SERIAL NO. NOTES: 1 Carrier Absorption Chiller 16JB036 * See page 5 of 9 for parts to be included. ** Carrier to provide one (1) unscheduled service call annually during normal business hour S11TSno°u�.d additional service be required after normal business hours or on holidays, client will be billed for premium time. ** Tube inspection conditional upon the condenser water and chilled water valves holding when the valves are closed. S-60H(2-90) scP 917-075 _... ANALYSIS SERVICE SCHEDULE LITHIUM BROMIDE OIL 1 REFRIGERANT TUBE ANALYSIS WATER City of Palm Springs CUSTOMER AGREEMENT NO. Sunrise Complex,_Palm Springs,_CA_92263 _ LOCATION(It different than page 1) EFFECTIVE DATE ANALYSIS SERVICE will be provided as described below.After the completion of each analysis CARRIER shall interpret the results and provide a written report to the CUSTOMER including any recommendations for corrective action(s). If the recommended corrective action(s) are within the Scope of Service and Schedule page(s) of this AGREEMENT, then CARRIER shall schedule and complete Such action(s). SYSTEM, EQUIPMENT OR PRODUCT TYPE OF IDENTIFICATION ANALYSIS SERVICE FREQUENCY (1) 16SB018 Absorption Chiller Lithium Bromide Annually The following applies in lieu of paragraph 9,WARRANTY of the General Provisions with respect to ANALYSIS SERVICE: WARRANTY:CARRIER guarantees the quality of all workmanship of the ANALYSIS SERVICE that is performed underthis AGREEMENT fora period of sixty(60)days after completion.Upon written notification within such period that the ANALYSIS SERVICES were not performed in a workmanlike manner,CARRIER agrees to remedy and redo any such services in a timely manner without cost to the CUSTOMER.In the event that it proves impractical or impossible to remedy or redo such services,CARRIER will reduce the AGREEMENT price to reflect the reduced value of the ANALYSIS SERVICE performed. CARRIER'S obligation to remedy any improperly performed ANALYSIS SERVICE or reduce the AGREEMENT price for such services shall be the CUSTOMER'S exclusive remedy under this AGREEMENT. Page 7 of 9 S-600(5-88) 917-083 — Service Agreement PRICE ADJUSTMENT Page 8 of 9 { _City CUSTOMER AMENDMENT NO, j j _Sunrise Complex Palm S rings, CA 92263 { LOCATION SUBMITTAL DATE I j AGREEMENT NO AGREEMENT EFFECTIVE DATE NO PAGE OF i This PRICE ADJUSTMENT to be attached to and made part of the above AGREEMENT: PRICE ADJUSTMENT(S) may be performed in accordance with one of the fallowing methods: 1.0 -- yes —ANNIVERSARY ADJUSTMENT: '. (Yes,No) _....PLO-_ on any anniversary date(or) j (Yes, No) 1� _ Yes _on the anniversary date of any subsequent one year term. ( (Yes, No) The current AGREEMENT price is$ _S_ 5988.00 per _year beginning on the effective date of SKi/i/93 The AGREEMENT price to be adjusted to S.___ -------per year payable 3 -__ -- per month_ beginning on the effective date of 57'4/_1/94. 2.0 —_Nq . _ _.PRICE SCHEDULE: (Yes. No) * Based upon Cost of Living index. S-80w(9-68) "` =�' �' 917-089 NON-DESTRUCTIVE SCHEDULE TESTING SERVICE City of Palm Springs CUSTOMER AGREEMENT NO. Sunrise Complex, Palm Springs, CA 92263 LOCATION(If different than page 1) EFFECTIVE DATE NON-DESTRUCTIVE TESTING service will be provided as described below.After the completion of each Non-Destructive test,CARRIER shall interpret the results and provide a written report to the CUSTOMER including any recommendations for corrective action(s).If the recommended corrective action(s)are within the Scope of Service and Schedule page(s)of this AGREEMENT, then CARRIER shall schedule and complete such action(s). ' i EQUIPMENT OR TYPE OF j COMPONENT NON-DESTRUCTIVE IDENTIFICATION TEST FREQUENCY i (1) 16SB018 Absorption Chiller Eddy Current Test 1st Year 1993 * Cooler 3rd Year 1996 1117 Condenser i ° Absorber * Generator Cooler and generator heads to be removed and replaced by customer. i J t The following applies in lieu of paragraph 9,WARRANTY of the General Provisions with respect to NON-DESTRUCTIVE TESTING: WARRANTY: CARRIER guarantees the quality of all workmanship of the NON-DESTRUCTIVE TEST that is performed i underthis AGREEMENT for a period of sixty(60)days after completion.Upon written notification within such period that the testing services were not performed in a workmanlike manner, CARRIER agrees to remedy and redo any such testing services in a timely manner without cost to the CUSTOMER.In the event that it proves impractical or impossible to remedy or redo such testing services, CARRIER will reduce the AGREEMENT price to reflect the reduced value of the NON- DESTRUCTIVE TEST]NO services performed.Due to inherent limitations of certain NON-DESTRUCTIVE TEST,CARRIER does not guarantee or warrant that all existing or potential damage to or defects in the equipment tested will be discovered or that there will be no failures of such equipment following such tests. CARRIER'S obligation to remedy any improperly performed testing services or reduce the AGREEMENT price for such testing services shall be the CUSTOMER'S exclusive remedy under this AGREEMENT. Page 9 of 9 1 S-60R(6-88) 917-084 1 Service Agreement This AGREEMENT entered into by and between: City of Palm Springs Municipal Complex Palm Springs, CA 92263 Hereinafter referred to as "CUSTOMER" and BUILDING SYSTEMS AND SERVICES DIVISION OF CARRIER CORPORATION Hereinafter referred to as "CARRIER" 38lQ23009-B API 2/26/93 PROPOSAL NO PROPOSAL TYPE PROPOSAL DATE AGREEMENT NO BUILDING SYSTEMS AND SERVICES 5-60(9-88) 917-067 • SERVICE AGREEMENT service(s)to be provided at the CUSTCMER'S location(s)as indicated on preceeding page or on the attached Schedule Page(s).The page(s) indicated with an "X' below are part of this AGREEMENT. = HEATING d `''�-'^ AIR 3 WATER ©�' COOLING ` HEAT114G k _ ;. d� CONTROLS COOLING DISTRIBUTION �r� rev XX WATER CHILLER -- BOILER - HEAT PUMP -'AIR HANDLER — DOC PACKAGED AIR -- FURNACE --" HEAT RECLAIM ---" COOLING TOWER — ELECTRIC I CONDITIONER -- HEAT EXCHANGER "— PACKAGED AIR --- FILTER SVC. — ELECTRONIC XX ANALYSIS SVC - UNIT HEATER CONDITIONING& — PUMPS — PNEUMATIC XX HEATING NON-DESTRUCTIVE ---TERMINALS TESTING --- WATER TREATMENT ------------------------------------------------------------------------------------------------------------------' DIALOG SERVICE(equipment monitoring) Other: • This AGREEMENT shall be administered by CARRIER'S office presently located at: Carrier Building Systems and Services 2735 Saturn Street Brea, CA 92621 • CARRIER shall provide maintenance service In accordance with the "General Provisions", "Scope of Service", "Schedule Page(s)",and any"Amendrnent(s)"which constitute(s)an entire AG REEM ENT and shall become valid after acceptance by CUSTOMER and approval by CARRIER. Reference to CUSTOMER'S request for quotation or other documents are made a part of this AGREEMENT only to the extent of specifying the nature of the goods and services ordered and to the extent that such items or terms are consistent with this AGREEMENT. No agent of CARRIER or employee shall have authority to alter or waive any clause of this AGREEMENT unless prior written approval is obtained from CARRIER headquarters. • The first price rice is$ $ 7200.00 600.00. _ _ __month. y per year payable$ per Any subsequent price maybe adjusted on any anniversary date in accordance with the PRICE ADJUSTMENT page. During new equipment warranty, the AGREEMENT price will be$ n a per - - n/a_ It is understood that the warranty expires S • This AGREEMENT shall become effective on 4/1/93 and shall continue -�cYr five__ years) _ - ,_ mgeext u�dlea+*nee. • The undersigned affirm that they have read and understand the entire AGREEMENT including the General Provisions appearing on the reverse side. Execution by Authorized Represe(tati s: Page 2 of 9 3/l/93 SUBMITTED BY: '''Y - DATE: ---- " "-" CUSTOMERACCEPTAf E:`/' Ober[ Simon CARRIER APPROVAL: - Marketing Rep. BUILDING SYSTEMS&SERVICES DIVISION OF CARRIER CORPORATION City Manager x ,ATTEST: City- of Palm Springs Carrier Approval(typed/printed name) k -- - - -- - ----------- Ttlle City Clerk X Dale Carrier Approval(signature) Date 8-60A(9-86) N 917-068 I, . Service Agreement This AGREEMENT entered into by and between: City of Palm Springs Airport Complex Palm Springs, CA 92263 Hereinafter referred to as "CUSTOMER" and BUILDING SYSTEMS AND SERVICES DIVISION OF CARRIER CORPORATION Hereinafter referred to as "CARRIER" 381g23008-B AM 2/26/93 PROPOSAL NO. PROPOSALTYPE PROPOSAL DATE AGREEMENT NO. J ' 1 � BUILDING SYSTEMS AND SERVICES S-fi0(s-89) 917-067 • SERVICE AGREEMENT service(s)to be provided at the CUSTOMER'S location(s)as Indicated on preceeding page or on the attached Schedule Page(s).The page(s) indicated with an "X" below are part of this AGREEMENT. -' -- -- - � HEATING& �-"" -; AIR&WATER ©� -- COOLING HEATING �v�,� �,==v gi(dam- CONTROLS COOLING DISTRIBUTION „F .. .�- XX WATER CHILLER - BOILER HEAT PUMP --- AIR HANDLER — DOC PACKAGED AIR -'- FURNACE HEAT RECLAIM -' COOLING TOWER — ELECTRIC CONDITIONER -- HEAT EXCHANGER -- PACKAGED AIR -- FILTER SVC. -- ELECTRONIC XX ANALYSIS SVC, - UNIT HEATER CONDITIONING& --- PUMPS — PNEUMATIC ' - NON-DESTRUCTIVE HEATING — TERMINALS TESTING --- WATER TREATMENT ___________________________________________________________________________-------------___________________________ DIALOG SERVICE(equipment monitoring) Other. Annual SCAQMD Rule 1415 Audit • This AGREEMENT shall be administered by CARRIER'S office presently located at: Carrier Building Systems and Services 2735 Saturn Street Brea, CA 92621 • CARRIER shall provide maintenance service In accordance with the "General Provisions", "Scope of Service", "Schedule Page(s)",and any"Amendrnent(s)"which constitute(s)an entire AGREEMENT and shall become valid aft, acceptance by CUSTOMER and approval by CARRIER. Reference to CUSTOMER'S request for quotation or oft s� „ documents are made a part of this AGREEMENT only to the extent of specifying the nature of the goods and service —; ordered and to the extent that such Items or terms are consistent with this AGREEMENT. No agent of CARRIER c employee shall have authority to alteror waive any clause of this AG REEM ENT unless prior written approval is obtainer from CARRIER headquarters. • The first year rice is$ $ 6924.00 per year payable$ $ 577.00 per month- Y P P y Any subsequent price may be adjusted on any anniversary date in accordance with the PRICE ADJUSTMENT page. — During new equipment warranty,the AGREEMENT price will be$ n/a per n/a It is understood that the warranty expires n' a /1/93 a�� 5�211 cc,lln� a � • This AGREEMENT shall become effective on S _five _ years) opp k �wriY•w.ieliec. • The undersigned affirm that they have read and understand the entire AGREEMENT including the General Provisions appearing on the reverse side. Execution by Authorized Represent ves.". Page 2 of 8 SUBMITTED BY: /��1 `y DATE: 3/1/93 CUSTOMER ACCEPTANCE: -Hobert'. Simon CARRIER APPROVAL: Marketing Rep. BUILDING SYSTEMS&SERVICES DIVISION OF CARRIER CORPORATION City Manager X -- --- -- ----- Carney Approval(typed/pnntetl name) ATTEST: City of Palm Springs Title x - - City Clerk Date Carrier Approval(signature) Dale S-60A(9-88) _917-063 0 RUTAN & TUCKER ATTORNEYS AT LAW A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS aENA BANK OF THE WEST, SUITE 1400 av ax MOFozL WI_�AM R.MEL ANNE NELSON As 611 ANTON BOULEVARD ZQUEZ 5TEEUE EONAHEA COSTA MESA, CALIFORNIA 92626-I99HKATHYFARHAT IT AN DIRECT ALL MAIL TO P. O. BOX 1950 M NS VAN UGTEN MARK A THOMPSON ou THOMAS G BROCKINGTON COSTA MESA, CALIFORNIA 92626-1950 En ENS Ea MARE HALL P AN TELEPHONE (714) 641-5100 sN (213) 625-7596 RB HARDEN TELECOPIER (714) 546-9035 F KEVIN BRAZIL DOUGLAS 6 VANDCRP.L N NEOB SL N II560-BBB N IWLNLLELGENA RG ALASEY 01 O R 'CIS-19Be1 i.l N GOOBER HOwESL IIBEB-19es1 STEWART PRESSMAN L15A COPE DUFLOCN IROFTEDOIAL April 21 1993 GARVINF A , oN Mr. Jim Berryhill City of Palm Springs 3200 East Tahquitz-McCallunn Way P.O. Box 2743 Palm Springs, CA 92263-2743 Re: City of Palm Springs v. Carrier Dear Jim: I am enclosing three original signature pages of the Settlement Agreement and :Release of All Claims for the above- referenced matter. I will. forward the fourth page upon receipt from Edith Matthai's office. Please deliver these to the City Clerk. If you have any questions, please call me. Very truly yours, RUTAN & TUCKER Scott �R. Pinzone SRP:cjl Encls. APR 2 g 1993