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HomeMy WebLinkAbout16-0321 Kane Inc• i I.' 00- o3at CITY OF ELGIN AGREEMENT WITH KONE INC.FOR ELEVATOR MAINTENANCE AND REPAIR SERVICES THIS AGREEMENT is made and entered into as of the 21st day of March, 2016, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as the "CITY") and KONE INC., a Delaware corporation, (hereinafter referred to as the "CONTRACTOR" or "KONE"). ARTICLE I. DEFINITION. This"CONTRACT" as used herein shall mean this Agreement and terms of the City and County of Denver Agreement (hereinafter referred to as "Master Agreement") for elevator maintenance and repair services (hereinafter referred to as "Services") dated March 24, 2014, attached hereto and made a part hereof as Attachment B, and CONTRACTOR's Quote for Services to the City of Elgin dated February 4, 2016 attached hereto and made a part hereof as Attachment A (hereinafter referred to as "Quote"). Notwithstanding anything to the contrary contained in the attached Master Agreement and attached Quote, CONTRACTOR's price for elevator maintenance shall be at the price amount of$2,765 per month for a total contract price of$33,180 per year. In the event of any conflict between the terms of this Agreement and the terms of the attached Master Agreement or Quote,the terms of this Agreement shall supersede and control. In the event of any conflict between the terms of the attached Master Agreement and the Quote,the terms of the attached Master Agreement shall supersede and control. ARTICLE II. SCOPE OF WORK. The CONTRACTOR shall provide the Services described in the CONTRACT,at the prices and terms contained therein. ARTICLE III. CONTRACT PERIOD. The Services specified herein shall be furnished beginning May 1, 2016, and the initial term of this Agreement shall remain in effect until April 30, 2021. After the initial aforementioned five-year period this Agreement shall automatically renew for a successive period(s)of thirty(30)days duration from the end of the initial period until a notice of termination of this Agreement is provided by either party hereto or until execution of a new agreement which shall supersede and replace this Agreement. The applicable terms of the Master Agreement shall survive the expiration of the Master Agreement's term. After the initial period of any successive renewal period(s)the CITY or KONE may terminate this Agreement by giving each other fourteen (14) days notice prior to the expiration of the initial period or any subsequent option period. KONE is not obligated to perform tests, correct outstanding violations or deficiencies that were not addressed by the prior service provider and/or the owner, or make related necessary repairs or component replacements on the equipment. If additional work is necessary, KONE will provide a separate proposal or recommendation for such work. KONE's price and obligations under this Agreement are subject to a technical survey to be performed within 90-days of the effective contract start date. If a safety hazard or code violation is identified during KONE's technical survey, CITY will immediately remove the unit from service until repairs are performed. CITY agrees to indemnify, defend, and hold KONE harmless for any claims arising out of CITY's failure to comply with KONE's recommendations and proposal,and any obligation on the part of KONE to indemnify or defend CITY with regard to such claim shall be null and void. If CITY does not immediately approve KONE's proposal or recommendation, notwithstanding anything to the contrary in this proposal/agreement, KONE reserves the right to terminate this Agreement without penalty. ARTICLE IV. TERMINATION. The following shall constitute events of default under this CONTRACT: (a)any material misrepresentation made by the CONTRACTOR to the CITY, and (b) any failure by the CONTRACTOR to perform any of its obligations under this CONTRACT including, but not limited to, the following: (i) failure to commence performance of this CONTRACT at the time specified in this CONTRACT, (ii) failure to perform this CONTRACT with sufficient personnel and equipment or to deliver Services to ensure the performance or completion of this CONTRACT within the specified time, (iii) failure to perform this CONTRACT in a manner reasonably satisfactory to the CITY,(iv) failure to promptly re-perform within reasonable time the Services that were rejected by the CITY as erroneous or unsatisfactory, (v) failure to comply with a material term of this CONTRACT, including, but not limited to, the Affirmative Action requirements, and(vi) any other acts specifically and expressly stated in this CONTRACT as constituting a basis for termination for cause. The CITY may terminate this CONTRACT for its convenience upon fourteen(14)days prior written notice. In the event of such termination by the CITY,the CITY's liability to the CONTRACTOR shall be limited to reasonable payment for Services already provided by the CONTRACTOR pursuant to this CONTRACT. ARTICLE V. DAMAGES. From any sums due to the CONTRACTOR for Services,the CITY may keep for its own the whole or any part of such expenses, losses and damages as directed by the Purchasing Director, incurred by the CITY as a consequence of procuring Services as a result of any failure, omission, negligence or mistake of the CONTRACTOR in providing the Services as provided in this CONTRACT. ARTICLE VI. GOVERNING LAWS AND ORDINANCES. This CONTRACT is subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this CONTRACT shall be the Circuit Court of Kane County, Illinois. ARTICLE VII. AFFIRMATIVE ACTION. The CONTRACTOR will not discriminate against any employee or applicant for employment because of race,color,religion, sex,ancestry,national origin, place of birth, age or physical handicap which would not interfere with the efficient performance of the job in question. The CONTRACTOR will take affirmative action to comply with the provisions of Elgin Municipal Code Section 3.12.100 and will require any subcontractor to submit to the CITY a written commitment to comply with those provisions. The CONTRACTOR will distribute copies of this commitment to all persons who participate in recruitment,screening,referral and selection of job applicants and prospective subcontractors. The CONTRACTOR agrees that the provisions of Chapter 3.12 of the Elgin Municipal Code, 1976, is hereby incorporated by reference, as if set out verbatim. ARTICLE VIII. ASSIGNABILITY. The CONTRACTOR shall not assign,sell or transfer any interest in this CONTRACT without prior written consent of the CITY. ARTICLE IX. AMENDMENTS. There shall be no modification of this CONTRACT, except in writing and executed with the same formalities of the original. -2- ARTICLE X. NOTICES.Any notice given under this CONTRACT shall be in writing and shall be deemed to have been given when hand delivered or deposited in the U.S. mail, certified or registered,return receipt requested,addressed,if to CONTRACTOR,at the address set forth above to the attention of the project manager or undersigned representative, and if to the CITY, to the attention of the City Manager, 150 Dexter Court,Elgin,IL 60120,or to such other address and/or authorized representatives as either party shall designate in writing to the other in the manner herein provided. ARTICLE XI. INDEMNIFICATION. To the fullest extent permitted by law,CONTRACTOR agrees to and shall indemnify,defend and hold harmless the CITY,its officers,employees,boards and commissions from and against any and all claims, suits, judgments, costs, attomey's fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any negligent acts or omissions of CONTRACTOR or CONTRACTOR's officers, employees, agents or subcontractors in the performance of this CONTRACT including, but not limited to,all goods delivered or Services or work performed hereunder. In the event of any action against the CITY,its officers,employees,agents,boards or commissions covered by the foregoing duty to indemnify,defend and hold harmless,such action shall be defended by legal counsel of the CITY's choosing. ARTICLE XII. PUBLICITY. The CONTRACTOR may not use, in any form or medium, the name of the City of Elgin for public advertising unless prior written permission is granted by the CITY. ARTICLE XIII. APPROPRIATIONS. The fiscal year of the CITY is the twelve (12)-month period ending December 31. The obligations of the CITY under any contract for any fiscal year are subject to and contingent upon the appropriation of funds sufficient to discharge the obligations which accrue in that fiscal year and authorization to spend such funds for the purposes of this CONTRACT. If, for any fiscal year during the term of this CONTRACT, sufficient funds for the discharge of the CITY's obligations under this CONTRACT are not appropriated and authorized, then this CONTRACT shall terminate as of the last day of the preceding fiscal year,or when such appropriated and authorized funds are exhausted,whichever is later,without liability to the CITY for damages,penalties or other charges on account of such termination. ARTICLE XIV. ENTIRE AGREEMENT. This CONTRACT embodies the whole agreement of the parties hereto regarding the subject matter hereof. There are no promises,terms,conditions or obligations other than those contained herein,and this CONTRACT shall supersede all previous communications,representations or agreements,either verbal or written,between the parties. ARTICLE XV. COMPLIANCE WITH LAWS. Notwithstanding any other provision of this CONTRACT, it is expressly agreed and understood that in connection with the performance of this CONTRACT, the CONTRACTOR shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing,CONTRACTOR hereby certifies,represents and warrants to the CITY that all CONTRACTOR's employees and/or agents who will be providing products and/or services with respect to this CONTRACT shall be legal residents of the United States. CONTRACTOR -3- shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this CONTRACT. The CITY shall have the right to audit any records in the possession or control of the CONTRACTOR to determine CONTRACTOR's compliance with the provisions of this section. In the event the CITY proceeds with such an audit the CONTRACTOR shall make available to the CITY the CONTRACTOR's relevant records at no cost to the CITY. CONTRACTOR shall pay any and all costs associated with any such audit up to a maximum of$500. ARTICLE XVI. INTEREST ACT WAIVER. CONTRACTOR hereby waives any and all claims to interest on money claimed to be due pursuant to this CONTRACT,and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended(50 ILCS 505/1, et seq.), or the Illinois Interest Act,as amended(815 ILCS 205/1,et seq.). ARTICLE XVII. LIMITATIONS. CONTRACTOR shall not be entitled to and hereby waives any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates, officers, employees, agents, attorneys, boards and commissions, of whatsoever nature and in whatsoever forum after one (1) year from the incident or occurrence giving rise to the cause of action. ARTICLE XVIII. SIGNATURE. The person signing this CONTRACT certifies that s/he has been authorized by the CONTRACTOR to commit the CONTRACTOR contractual and has been authorized to execute this CONTRACT on its behalf. ARTICLE XIX. EXECUTION. This agreement may be executed in counterparts,each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e- mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re-executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense IN WITNESS WHEREOF the parties have hereto set their hands the day and year first above written. CONTRACTOR: -4- KONE Inc. By: -"I-7 Name/Print: Jay Dietz Title: Senior Vice President FEIN NO. KONE#0005577341 CITY OF ELGIN: By: � " S an R. Stegall, City Man r F:\Legal Dept\Agrecment\Konc Inc Agr-Elevator Maintenance-2-22-16.docx -5- ATTACHMENT A COMPLETE MAINTENANCE HYDRAULIC SCOPE OF WORK PERFORMANCE: KONE will systematically examine, maintain, adjust and lubricate the equipment described herein. In addition, unless specifically excluded elsewhere, KONE will repair or replace the following if the repair or replacement is, in.KONE's judgment, necessitated by normal wear and tear. HYDRAULIC ELEVATORS: RELAY LOGIC CONTROL SYSTEM: All control system components. MICROPROCESSOR CONTROL SYSTEM: All control system components. System performance examinations will be conducted to ensure dispatching and motion control systems are operating properly. POWER UNIT: Pump,motor,valves and all related parts and accessories. HYDRAULIC SYSTEM ACCESSORIES: Exposed piping, fittings and accessories between the pumping unit and the jack, jack packing, hydraulic fluid, and any heating or cooling elements installed by the original elevator equipment manufacturer for controlling fluid temperature. CAR EQUIPMENT: All elevator control system components on the car. WIRING: All elevator control wiring and all power wiring from the elevator equipment input terminals to the motor. HOISTWAY AND PIT EQUIPMENT: All elevator control equipment and buffers. RAILS AND GUIDES: Guide rails,guide shoe gibs,and rollers. DOOR EQUIPMENT: Automatic door operators, hoistway and car door hangers, hoistway and car door contacts,door protective devices,hoistway door interlocks,door gibs,and auxiliary door closing devices. MANUAL FREIGHT DOOR EQUIPMENT: Switches, retiring cams, interlocks, guide shoes, sheaves,rollers,chains, sprockets,tensioning devices,and counter-balancing equipment. POWER FREIGHT DOOR EQUIPMENT: Controller, relays, contactors, rectifiers, timers, resistors, solid state components, door motors, retiring cams, interlocks, switches, guide shoes, sheaves,rollers,chains, sprockets,and tensioning devices. SIGNALS AND ACCESSORIES: Car operating panels,hall push button stations,hall lanterns, emergency lighting, car and hall position indicators, lobby control panels, car operating panels, fireman's service equipment and all other signal,and accessory facilities furnished and installed as an integral part of the elevator equipment. Re-lamping of signal fixtures is included only during KONE's systematic examinations. Service requests related to re-lamping of signal fixtures will be considered billable. HOURS OF SERVICE: All work covered under this Agreement is to be performed during the regular working hours of regular working days of the elevator trade, unless otherwise indicated herein. SERVICE REQUESTS (CALLBACKS): In addition to preventive maintenance, this Agreement covers minor adjustment service requests during the regular working hours of regular working days of the elevator trade,unless otherwise indicated herein. Service requests are defined as minor adjustments, corrections or entrapments that require immediate attention and are not caused by reasons beyond KONE's control. Service requests that require more than one technician or more than two hours to complete will be scheduled as a repair during the regular hours of service. If CITY should require, at any time, service requests (unless included above) to be made on overtime, CITY will be charged only for the difference between KONE's regular hourly billing rate and KONE's regular overtime billing rate applicable for each overtime hour worked. TESTS: KONE will perform the following tests on the equipment: HYDRAULIC ELEVATOR: A pressure relief test and a yearly leakage test. KONE is not responsible for damages, either to the elevator equipment or to the building, or for any personal injury or death,resulting from this test(s). GENERAL: KONE shall not be obligated to: perform safety tests other than those specified herein; install new attachments or make equipment changes or adjustments requirement by new or retroactive code changes; perform tests or correct outstanding violations or deficiencies prior to the effective date of this Agreement; make renewals or repairs necessitated by fluctuations in the building AC power systems, adverse machine room or environmental conditions (including temperature variations below 50 degrees and above 90 degrees Fahrenheit), excessive humidity (greater than 95% non-condensing humidity), water damage, prior water exposure, rust, fire, explosion, acts of God, misuse, vandalism,theft,war,acts of government, labor disputes, strikes, lockouts, or tempering with the equipment by unauthorized personnel; repair or replace parts damaged by negligence,misuse or any other cause beyond its control. OBSOLESCENCE: Obsolete items(including,but not limited to, assemblies,parts,components or systems) are excluded from this Agreement and are defined as an item for which the original design is no longer regularly manufactured by the Original Equipment Manufacturer(hereinafter referred to as"OEM")or the original design has been replaced with an item of a difference design. No exception to this exclusion will be made for items defined as obsolete above simply because they can be custom made or acquired at any price. Obsolete items and the labor to replace them will be at'' the owner's expense. Any modifications to existing equipment necessary to accommodate replacement components will also be at the owner's expense. KONE will not be 2 required to furnish reconditioned or used parts. Once upgraded by KONE, obsolete items will be covered under this Agreement. ELEVATOR: Refinishing, repairing, replacing or cleaning of car enclosure, telephones or communication devices, fans, computer monitoring systems, gates and/or door panels, door pull straps, hoistway enclosure, rail alignment, hoistway doors, door frames, sills, hoistway gates, finished flooring, power feeders, switches, their wiring and fusing, car light diffusers, ceiling assemblies•and attachments, smoke or heat sensors, fireman's phone devices, intercoms, music systems. media displays, card-readers or other security systems, light tubes and bulbs,pit pumps, emergency power generators, hydraulic cylinder, unexposed piping, disposal of or clean-up of waste oil or any contamination caused by leaks in the hydraulic cylinder or unexposed piping. KONE shall not be obligated to perform or keep records of firefighter's service testing, unless specifically included in this Agreement. REMOTE MONITORING: If CITY unit it equipped with remote monitoring capabilities, KONE reserves the right to utilize this functionality and the phone line for the unit to collect data related to the use and operation of CITY equipment. CITY ASSURANCES: CITY agrees to: be solely liable for the proper use of this equipment; furnish KONE with a list of authorized personnel responsible for building operations; provide KONE with a complete set of as-built wiring diagrams;shut down the equipment and notify KONE if the equipment is not functioning properly; notify KONE of any injury or accident in or about the equipment (verbal notification immediately and written notification within three days); perform the monthly firefighter's service testing and keep record of such tests,if required and not specifically included elsewhere herein. CITY shall not permit anyone other than KONE to perform work covered-under this Agreement. NON-KONE EQUIPMENT: The CITY agrees to procure replacement parts or proprietary diagnostic devices from the original equipment manufacturer when requested by KONE. KONE agrees to reimburse owner for the cost of all parts acquired at KONE's request. CITY authorizes KONE to produce single copies of the EPROM and/or ROM chips for each unit for the sole purpose of an archive backup of the embedded software to allow for replacement of a defective or damaged chip. These will be stored on the building premises and the CITY retains possession. PERFORMANCE CLAUSE: CITY may,at any time and at CITY's expense,call for a mutually agreeable independent elevator consultingfirm to evaluate KONE's performance within the scope g P of this Agreement. If it is found KONE is not complying with the terms of this Agreement, a detailed report shall be submitted to KONE outlining the specific requirements and a minimum period of sixty (60) days shall be allowed for KONE to correct the non-compliances within the scope of this Agreement. In the event KONE fails to correct the noted material items within the allowed time, CITY shall have the right to terminate this Agreement by giving KONE thirty(30) days written notice. Notwithstandingthis right, CITY remains obligated topayall outstanding g � g balances owed KONE. 3 HANDICAP ELEVATOR SCOPE OF WORK KONE will use the below scope of work for the handicap elevator located at 533 St.Charles Street, Elgin, Illinois: PERFORMANCE: KONE Inc. will provide the labor to two times a year examine and/or lubricate the equipment outlined below. All lubricants, greases, and wiping cloths will be provided. Should KONE's examination uncover items, which, in KONE's judgment, require replacement and/or repair, a separate proposal may be prepared for CITY's authorization. However,no guarantee is made that any or all items have been or will be found. HANDICAP ELEVATOR: RELAY LOGIC CONTROL SYSTEM: All control system components. MICROPROCESSOR CONTROL SYSTEM: All control system components. System performance examinations will be conducted to ensure dispatching and motion control systems are operating properly. GEARED/GEARLESS MACHINES: All geared and gearless machine components. WIRING: All elevator control wiring and all power wiring from the elevator equipment input terminals to the motor. CAR EQUIPMENT: All elevator control system components on the car. HOISTWAY AND PIT EQUIPMENT: All elevator control equipment, car and counterweight buffers, overspeed governors, governor tension sheave assemblies, and car and counterweight safeties. RAILS AND GUIDES: Guide rails, guide shoe gibs and rollers. HOIST ROPES: Hoist ropes will be properly lubricated and adjusted for equalized tension. DOOR EQUIPMENT: Automatic door operators, hoistway and car door hangers, hoistway and car door contacts,door protective devices,hoistway door interlocks,door gibs,and auxiliary door closing devices. MANUAL FREIGHT DOOR EQUIPMENT: Switches, retiring cams, interlocks, guide shoes, sheaves,rollers,chains, sprockets,tensioning devices,and counterbalancing equipment. SIGNALS AND ACCESSORIES: Car operating panels, hall push button stations, hall lanterns, emergency lighting, car and hall position indicators, lobby control panels, car operating panels, fireman's service equipment,and all other signal and accessory facilities furnished and installed as an integral part of the elevator equipment. 4 LUBRICANTS: KONE will use lubricants compounded under OEM's specifications or equal. EXAM FREQUENCY: 2 examinations per contract year are covered in this Agreement. HOURS OF SERVICE: All work covered under this Agreement is to be performed during regular working hours of regular working days of the elevator trade. Callouts will be billed separately at US Communities billing rates. 5 APPLICABLE LAW Service Agreement Effective Date: Service Agreement Number: TBD The parties to this Service Agreement agree to the conditions contained herein. Sign for on behalf of the City of Elgin: (Signature) (Print Name) (Print Title) (Date) Respectfully submitted, KONE Inc.: (Submitted By) (Approved By) Authorized Representative (Title) (Date) F:\Legal Dept\Agreement\Kone Inc Agr-Elevator Maintenance-Attach A-Scope of Work-clean-2-23-16.docx 6 gel Attachment A KONE Inc. Proposal to Supply Elevator, Escalator, Moving Walkway Services, repair or modernization under the U.S. Communities Program utilizing the Terms and Conditions of the City and County of Denver Master Contract (Reference GENRL-201414653-00 dated April 1", 2014) PROPOSED UNITS & EQUIPMENT PRICING: Location Location MONTHLY COST Pavilion 100 Oakwood Drive 3137.00 The Centre 100 Symphony Way $137.00 The Centre 100 Symphony Way $137.00 City Hall 150 Dexter Court $137.00 City Hall 150 Dexter Court $137.00 City Halt 150 Dexter Court $137 00 Police Facility 151 Douglas Avenue S137.00 Police Facility 151 Douglas Avenue S137.00 Police Facility 151 Douglas Avenue $137.00 Spring Street Deck 200 E Chicago Street St37.00 Spring Street Deck 200 E Chicago Street S137.00 Elgin Public Museum 225 Grand Blvd $137.00 Fulton Street Deck 245 Fulton $137.00 Fulton Street Deck 245 Fulton $137.00 Old Main Building 360 Park Street S137.00 Water Treatment Main Building 375 W River Road S137.00 Hemmens Auditorium 45 Symphony Way $137.00 Fire Museum 533 St Charles S25.00 Water Plant 74 N Amite $137.00 The Highlands 875 Sportsway Drive $137.00 Parkin.Deck 95 Symphony Way $137.00 $2,765.00 The above pricing chart is inclusive of any and all discounts on additional work as provided for herein. **KRMS-Elevator Phone Monitoring Y NX **Requ,res execution and completion on the CIS (Customer Information Sheet) before phones can be programmed to KONE. 02104r2016 7 S G ! U.S. COMMUNITIES' GOVERNMENT PURCHASING ALLIANCE rti f 111 r ��- �'. ,.�tam ?rC.' '*.�•� Due to your involvement in US Communities with acceptance of this contract you will receive the followinpidiscount on all additional work LOCATION POSITION 2015 LICENSED MECHANIC 201S MECHANIC HELPER rnr/tmesAAA sussouNDu a NORMAL OVERTIME NORMAL HOURS OVERTIME UNION AREAS HOURS HOUQATI Hautuni NO 2 Chicago,It i $197.53 $335.80 $195.0S 5169.61 $298.34 $339.23 • Note; Any QEI or Inspector fees are not included, • Yearly increases will be limited to 4% 02/04/2016 8 ATTACHMENT B AGREEMENT THIS AGREEMENT for elevator maintenance and repair services is made and entered into by and between the CITY AND COUNTY OF DENVER, a municipal corporation of the State of Colorado, hereinafter referred to as the "City,"and KONE INC.,with an address of One Montgomery Court,PO Box 429,Moline IL,61265,hereinafter referred to as the"Contractor." The parties agree as follows: 1. FORM OF AGREEMENT: This Agreement shall consist of the terms and conditions stated in the following numbered paragraphs. No other documentation related to this Agreement or generated as a result of this Agreement shall form a part of this Agreement unless it is expressly referenced and incorporated herein. 2.. CITY REPRESENTATIVE: The Manager of General Services ("Manager") is the official City representative and directs all services performed under this Agreement. Communication between the Manager and the Contractor shall be directed through the Manager or such other representative as the Manager shall designate. The Contractor agrees that during the term of this Agreement he shall fully coordinate all services hereunder with the City. 3. WORK TO BE PERFORMED: A. Preventative and Routine Maintenance: The Contractor shall diligently undertake, perform and complete all preventative and routine maintenance including all material, labor, supervision, tools, supplies and all other expenses necessary to provide service, preventative maintenance, inspections, adjustments, testing and repairs as set forth in Exhibit A, Scope of Work,to the City's satisfaction("Preventative and Routine Maintenance"). B. Assigned Work: The Contractor shall diligently undertake, perform and complete work outside of the Preventative and Routine Maintenance described in paragraph 3.A as assigned by written work order ("Assigned Work"). As the Manager determines the need and availability of funding for Assigned Work, the City will issue a Work Order(Sample Work Order attached as Exhibit B) to the Contractor detailing the nature and extent of the Assigned Work. Work Orders may add or remove facilities from the list of facilities for which Contractor with provide Preventative and Routine Maintenance for a negotiated fixed monthly fee or provide for work in addition to Preventative and Routine Maintenance on a time and materials 1 basis at the rate specified in Contractor's Pricing Proposal attached as Exhibit C . Following receipt of the issued Work Order, the Contractor shall, within three (3) business days and confirm the scope of Assigned Work detailed therein and respond back to the Department as to the Contractor's ability to initiate and complete the Assigned Work in the timeframe specified in the Work Order. The Contractor assumes all responsibility and risks, including any additional work or additional costs, for failure to confirm the completeness and accuracy of the Work Order and the Assigned Work Amount. Confirmation includes, but is not restricted to, inquiries with the Department as to any directions or specifications in the Work Order which are not clear. If the Contractor fails to contact the Department within three(3)business days following receipt of the issued Work Order and state unequivocally that the Contractor is ready and willing to perform the Assigned Work in the manner and timeframe indicated on the Work Order, the City reserves the right to immediately withdraw the issued Work Order. Upon the Contractor executing the Work Order, the City shall finalize and execute the Work Order for the Assigned Services and return a copy of the executed Work Order to the Contractor. The City will not execute the Work Order unless any material changes proposed by the Contractor to the terms of the issued Work Order and/or additions to the Assigned Services Amount are deemed acceptable by the Manager and incorporated into the Work Order and until funding adequate to cover the entire Assigned Services Amount is available. C. Work Order Change: If, after execution of a Work Order and commencement on the Assigned Work, additions, deletions or modifications to the Assigned Work described in the Work Order, along with any associated changes in the Assigned Work Amount, are required a Work Order Change, in substantially the form as set forth in Exhibit D attached to this Agreement and incorporated herein by reference, may be issued in accordance to the same standards and procedures prescribed for Work Orders. The Contractor shall promptly and thoroughly review and respond to the proposed changes, in accordance with the same standards and procedures prescribed for Work Orders, and notify the Department that the Contractor is ready and willing to perform the Assigned Work in the manner and timeframe as modified by the Work Order Change. The City will not execute the Work Order Change unless any material changes proposed by the Contractor to the terms of the issued Work Order Change and/or additions to the Assigned Services Amount are deemed acceptable by the Manager and 2 incorporated into the Work Order Change and until funding adequate to cover the entire Assigned Services Amount, if modified, is available. D. The Contractor shall faithfully perform the services in accordance with the standards of care, skill, training, diligence, and judgment provided by highly competent individuals performing services of a similar nature to those described in the Agreement and in accordance with the terms of the Agreement. E. All records, finding, research,opinions and documentation prepared by the Contractor under this Agreement, if delivered to and accepted by the Manager shall become the property of the City. The Contractor also agrees to allow the City to review any of the procedures used by him/her in performing the services hereunder and to make available for inspection notes and other documents used in the preparation of any of the services required hereunder. 4. TERM OF AGREEMENT: The term of the Agreement shall be five (5) years beginning on April 1, 2014 and ending on March 31, 2019. Subject to the Manager's prior written authorization, the Contractor shall complete any Assigned Work in progress as of the expiration date and the Term of the Agreement will extend until the work is completed or earlier terminated by the Manager. The parties agree that in the performance of the terms, conditions, and requirements of this Agreement by the Contractor, time is of the essence. 5. FORCE MAJEURE: The Contractor shall not be liable for any loss, damage or delay, caused directly or indirectly by embargoes, strikes, lockouts, work interruptions, or other labor disputes, fire, theft, flood, or by any cause beyond Contractor's control. Neither party shall be liable for incidental, special or consequential damages. Notwithstanding any other provision of the agreement, it is the intent of the parties that each party shall only be liable for damages caused by its own negligent acts. 6. COMPENSATION AND PAYMENT: A. Preventative and Routine Maintenance: The City agrees to pay the Contractor, and the Contractor agrees to accept as full and total compensation for all Preventative and Routine Maintenance a monthly fee for each listed facility in the amount listed in Contractor's Pricing Proposal attached as Exhibit C. 3 B. Assigned Work: The City agrees to pay the Contractor, and the Contractor agrees to accept as full and total compensation for all assigned work, as agreed in advance, either: (1) Monthly Fee: An agreed to monthly fee for Preventative and Routine Maintenance of facilities not listed in Contractor's Pricing Proposal. (2) Time and Materials: The sum of Contractor's hourly fee of One Hundred and Sixty Dollars and 42/100 ($160.42) per hour for the actual time spent completing the work as contemporaneously documented, Contractor's documented actual material costs and a markup not to exceed 15%of Contractor's actual cost for materials. B. The Contractor shall submit a monthly statement for completed Preventative and Routine Maintenance as well as for completed Assigned Work. The statement will itemize charges for Preventative and Routine Maintenance by location and provide a description of Assigned Work with a breakdown of hours, materials and markup. Signed work orders with supporting documentation of material costs will be attached to Contractor's statement. C. Reimbursable Expenses: There are no reimbursable expenses allowed under the Agreement. All of the Contractor's expenses are contained in Contractor's rates. D. Maximum Contract Amount: (1) Notwithstanding any other provision of the Agreement, the City's maximum payment obligation will not exceed Two Million Dollars and 00/100 ($2,000,000.00)(the"Maximum Contract Amount"). The City is not obligated to execute an Agreement or any amendments for any further services,including any services performed by Contractor beyond that specifically described in Exhibit A. Any services performed beyond those in Exhibit A are performed at Contractor's risk and without authorization under the Agreement. (2) The City's payment obligation,whether direct or contingent, extends only to funds appropriated annually by the Denver City Council,paid into the Treasury of the City, and encumbered for the purpose of the Agreement. The City does not by the Agreement irrevocably pledge present cash reserves for payment or performance in future fiscal years. The Agreement does not and is not intended to create a multiple-fiscal year direct or indirect debt or financial obligation of the City. 4 E. Assigned Work Limit: The cost of Assigned Work on any single project shall not exceed$400,000.00. 7. STATUS OF CONTRACTOR: The Contractor is an independent contractor retained to perform professional or technical services for limited periods of time. Neither the Contractor nor any of its employees are employees or officers of the City under Chapter 18 of the Denver Revised Municipal Code,or for any purpose whatsoever. 8. TERMINATION OF AGREEMENT: A. The City has the right to terminate this Agreement, with cause, on Twenty (20) days written notice to the Contractor. However, nothing herein shall be construed as giving the Contractor the right to perform services under this Agreement beyond the time when such services become unsatisfactory to the Manager. B. If this Agreement is terminated by the City with cause, the Contractor shall be compensated for, and such compensation shall be limited to, (1) the sum of the amounts contained in invoices which it has submitted and which have been approved by the City, (2) the reasonable value to the City of the work which the Contractor performed prior to the date of the termination notice, but which had not yet been approved for payment, and (3) the cost of any work which the Manager approves in writing which he determines is needed to accomplish an orderly termination of the work. C. The City has the right to terminate this Agreement, without cause, on thirty(30) days written notice to the Contractor. However, nothing herein shall be construed as giving the Contractor the right to perform services under this Agreement beyond the time when such services become unsatisfactory to the Manager. D. If this Agreement is terminated by the City without cause, the Contractor shall also be compensated for any reasonable costs it has actually incurred in performing services hereunder prior to the date of the termination. E. If this Agreement is terminated, the City shall take possession of all materials, equipment, tools and facilities owned by the City which the Contractor is using by whatever method it deems expedient, and the Contractor shall deliver to the City all drafts or other documents it has completed or partially completed under this Agreement, together with all other items, materials and documents which have been paid for by the city, and these documents and materials shall be the property of the City. Copies of work product incomplete at the time of 5 termination shall be marked "DRAFT-INCOMPLETE". The City shall use any and all such incomplete documents or incomplete data at its own risk. F. Upon termination of this Agreement by the City, the Contractor shall have no claim of any kind whatsoever against the City by reason of such termination or by reason of any act incidental thereto, except for compensation for work satisfactorily performed as described herein. 9. WHEN RIGHTS AND REMEDIES NOT WAIVED: In no event shall any payment by the City hereunder constitute or be construed to be a waiver by the City of any breach of term, covenant, or condition or any default which may then exist on the part of the Contractor, and the making of any such payment when any such breach or default shall exist shall not impair or prejudice any right or remedy available to the City with respect to such breach or default; and no assent, expressed or implied, to any breach of any one or more terms, covenants, or conditions of the Agreement shall be construed as a waiver of any succeeding or other breach. 10. INDEMNIFICATION: A. To the fullest extent permitted by law, the Contractor hereby agrees to defend, indemnify, reimburse and hold harmless City, its appointed and elected officials, agents and. employees for, from and against all liabilities, claims,judgments, suits or demands for damages to persons or property arising out of, resulting from, or related to the work performed under this Agreement that are due to the negligence or fault of the Contractor or the Contractor's agents, representatives, subcontractors, or suppliers ("Claims"). This indemnity shall be interpreted in the broadest possible manner consistent with the applicable law to indemnify the City. B. Contractor's duty to defend and indemnify City shall arise at the time written notice of the Claim is first provided to City regardless of whether suit has been filed and even if Contractor is not named as a Defendant. C. Contractor will defend any and all Claims which may be brought or threatened against City and will pay on behalf of City any expenses incurred by reason of such Claims including, but not limited to, court costs and attorney fees incurred in defending and investigating such Claims or seeking to enforce this indemnity obligation. Such payments on behalf of City shall be in addition to any other legal remedies available to City and shall not be considered City's exclusive remedy. 6 D. Insurance coverage requirements specified in this Agreement shall in no way ifi lessen or limit the liability of the Contractor under the terms of this indemnificationobligation. The Contractor shall obtain, at its own expense, any additional insurance that it deems necessary for the City's protection. E. This defense and indemnification obligation shall survive the expiration or termination of this Agreement. 11. EXAMINATION OF RECORDS: The Contractor agrees that any duly authorized representative of the City, including the City Auditor or his representative, shall,until the expiration of three (3) years after the final payment under this Agreement,have access to and the right to examine any directly pertinent books, documents, papers and records of the Contractor, involving transactions related to this Agreement. 12. NO AUTHORITY TO BIND CITY TO CONTRACTS: The Contractor has no authority to bind the City on any contractual matters. Final approval of all contractual matters which obligate the City must be by the City, as required by Charter and ordinance. 13. VENUE, GOVERNING LAW: Each and every term, condition, or covenant herein is subject to and shall be construed in accordance with the provisions of Colorado law, the Charter of the City and County of Denver and the ordinances, rules, regulations, and Executive Orders enacted and/or promulgated pursuant thereto. The Charter and Revised Municipal Code of the City and County of Denver, as the same may be amended from time to time, are hereby expressly incorporated into this Agreement as if fully set out herein by this reference. Venue for any action arising hereunder shall be in the District Court for City and County of Denver, Colorado. 14. USE, POSSESSION OR SALE OF ALCOHOL OR DRUGS: The Contractor, his or her officers, agents, and employees shall cooperate and comply with the provisions of Executive Order 94 and Attachment A thereto concerning the use, possession or sale of alcohol or drugs. Violation of these provisions or refusal to cooperate with implementation of the policy can result in the City barring the Contractor from City facilities or participating in City operations. 15. ASSIGNMENT AND SUBCONTRACTING: The City is not obligated or liable under this Agreement to any party other than the Contractor named herein. The Contractor understands and agrees that he or she shall not assign or subcontract with respect to any of his or 7 her rights, benefits, obligations or duties under this Agreement except upon prior written consent and approval of the City, which consent or approval may be withheld in the absolute discretion of the City; and in the event any such assignment or subcontracting shall occur, such action shall not be construed to create any contractual relationship between the City and such assignee or subcontractor, and the Contractor herein named shall remain fully responsible to the City according to the terms of this Agreement. 16. NO WAIVER OF RIGHTS: No assent, expressed or implied, to any breach of any one or more covenants, provisions or conditions of the Agreement shall be construed as a waiver of any succeeding or other breach. 17; - "NO DISCRIMINATION IN EMPLOYMENT: In connection with the performance of work under this Agreement, the Contractor agrees not to refuse to hire, discharge, promote or demote, or to discriminate in matters of compensation against any person otherwise qualified, solely because of race, color, religion, national origin, gender, age, military status, sexual orientation, marital status, or physical or mental disability; and the Contractor further agrees to insert the foregoing provision in all subcontracts hereunder. 18. CONFLICT OF INTEREST: The parties agree that no employee of the City shall have any personal or beneficial interest whatsoever in the services or property described herein and the Contractor further agrees not to hire or contract for services any employee or officer of the City which would be in violation of the Denver Revised Municipal Code, Chapter 2,Article IV,Code of Ethics,or Denver City Charter§§ 1.2.8, 1.2.9,and 1.2.12. The Contractor agrees that it will not engage in any transaction,activity or conduct which would result in a conflict of interest under this Agreement. The Contractor represents that it has disclosed any and all current or potential conflicts of interest. A conflict of interest shall include transactions, activities or conduct that would affect the judgment, actions or work of the Contractor by placing the Contractor's own interests, or the interests of any party with whom the Contractor has a contractual arrangement, in conflict with those of the City. The City, in its sole discretion, shall determine the existence of a conflict of interest and may terminate this Agreement in the event such a conflict exists after it has given the Contractor written notice which describes the conflict. The Contractor shall have thirty (30) days after the notice is received to eliminate or cure the conflict of interest in a manner which is acceptable to the City. 8 19. INSURANCE: A. General Conditions: Contractor agrees to secure, at or before the time of execution of this Agreement, the following insurance covering all operations, goods or services provided pursuant to this Agreement. Contractor shall keep the required insurance coverage in force at all times during the term of the Agreement, or any extension thereof, during any warranty period and maintain coverage including products and completed operations for three (3) years after termination of the Agreement. The required insurance shall be underwritten by an insurer licensed or authorized to do business in Colorado and rated by A.M. Best Company as "A-"VIII or better. Each policy shall contain a valid provision or endorsement requiring notification to the City in the event any of the required policies be canceled or non-renewed before the expiration date thereof. Such written notice shall be sent to the parties identified in the Notices section of this Agreement. Such notice shall reference the City contract number listed on the signature page of this Agreement. Said notice shall be sent thirty(30)days prior to such cancellation or non-renewal unless due to non-payment of premiums for which notice shall be sent ten (10) days prior. If such written notice is unavailable from the insurer, Contractor shall provide written notice of cancellation, non-renewal and any reduction in coverage to the parties identified in the Notices section by certified mail,return receipt requested within three(3) business days of such notice by its insurer(s) and referencing the City's contract number. If any policy is in excess of a deductible or self-insured retention, the City must be notified by the Contractor. Contractor shall be responsible for the payment of any deductible or self-insured retention. The insurance coverages specified in this Agreement are the minimum requirements, and these requirements do not lessen or limit the liability of the Contractor. The Contractor shall maintain, at its own expense, any additional kinds or amounts of insurance that it may deem necessary to cover its obligations and liabilities under this Agreement. B. Proof of Insurance: Contractor shall provide a copy of this Agreement to its insurance agent or broker. Contractor may not commence services or work relating to the Agreement prior to placement of coverages required under this Agreement. Contractor certifies that the certificate of insurance attached as Exhibit E, preferably an ACORD certificate, complies with all insurance requirements of this Agreement. The City requests that the City's contract number be referenced on the Certificate. The City's acceptance of a certificate of insurance or other proof of insurance that does not comply with all insurance requirements set 9 forth in this Agreement shall not act as a waiver of Contractor's breach of this Agreement or of any of the City's rights or remedies under this Agreement. The City's Risk Management Office may require additional proof of insurance, including but not limited to policies and endorsements. C. Owner's and Contractor's Protective Liability Insurance: Contractor's insurer(s) shall name the City and County of Denver, its elected and appointed officials, employees and volunteers as named insureds on an Owner's and Contractor's Protective Liability Policy. The Policy limit will equal the requested General Liability and Excess Liability limits. D. Waiver of Subrogation: For all coverages required under this Agreement, Contractor's insurer shall waive subrogation rights against the City. E. Subcontractors and Subconsultants: All subcontractors and subconsultants (including independent contractors, suppliers or other entities providing goods or services required by this Agreement) shall be subject to all of the requirements herein and shall procure and maintain the same coverages required of the Contractor. Contractor shall ensure that all such subcontractors and subconsultants maintain the required coverages. Contractor agrees to provide proof of insurance for all such subcontractors and subconsultants upon request by the City. F. Workers' Compensation/Employer's Liability Insurance: Contractor shall maintain the coverage as required by statute for each work location and shall maintain Employer's Liability insurance with limits of $100,000 per occurrence for each bodily injury claim, $100,000 per occurrence for each bodily injury caused by disease claim, and $500,000 aggregate for all bodily injuries caused by disease claims. Contractor expressly represents to the City, as a material representation upon which the City is relying in entering into this Agreement, that none of the Contractor's officers or employees who may be eligible under any statute or law to reject Workers' Compensation Insurance shall effect such rejection during any part of the term of this Agreement, and that any such rejections previously effected, have been revoked as of the date Contractor executes this Agreement. G. Commercial General Liability: Contractor shall maintain a Commercial General Liability insurance policy with limits of$1,000,000 for each occurrence, $1,000,000 for each personal and advertising injury claim, $2,000,000 products and completed operations aggregate, and $2,000,000 policy aggregate. i0 H. Business Automobile Liability: Contractor shall maintain Business Automobile Liability with limits of $1,000,000 combined single limit applicable to all owned, hired and non-owned vehicles used in performing services under this Agreement. I. Professional Liability (Errors & Omissions): Contractor shall maintain limits of $1,000,000 per claim and $1,000,000 policy aggregate limit. Policy shall include a severability of interest or separation of insured provision(no insured vs. insured exclusion) and a provision that coverage is primary and non-contributory with any other coverage or self- insurance maintained by the City. J. Additional Provisions: (1) For Commercial General Liability the policy must provide the following: (a) That this Agreement is an Insured Contract under the policy; (b) Defense costs are outside the limits of liability; (c) A severability of interests or separation of insureds provision (no insured vs. insured exclusion); and (d) A provision that coverage is primary and non-contributory with other coverage or self-insurance maintained by the City. (2) For claims-made coverage: (a) The retroactive date must be on or before the contract date or the first date when any goods or services were provided to the City, whichever is earlier (3) Contractor shall advise the City in the event any general aggregate or other aggregate limits are reduced below the required per occurrence limits. At their own expense, and where such general aggregate or other aggregate limits have been reduced below the required per occurrence limit, the Contractor will procure such per occurrence limits and furnish a new certificate of insurance showing such coverage is in force. 20. COLORADO GOVERNMENTAL IMMUNITY ACT: The parties hereto understand and agree that the City is relying upon, and has not waived, the monetary limitations and all other rights, immunities and protection provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq. 21. NO THIRD PARTY BENEFICIARY: It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and all rights of action relating 11 to such enforcement, shall be strictly reserved to the City and the Contractor, and nothing contained in this Agreement shall give or allow any such claim or right of action by any other or third person on such Agreement, including but not limited to subcontractors and suppliers. It is the express intention of the City and the Contractor that any person other than the City or the Contractor receiving services or benefits under this Agreement shall be deemed to be an incidental beneficiary only. 22. DISPUTES: All disputes of whatsoever nature between the City and Contractor regarding this Agreement shall be resolved by administrative hearing,pursuant to the procedure established by Denver Revised Municipal Code, Section 56-106. For the purpose of that procedure, the City official rendering a final determination shall be the City representative identified in Paragraph 2 hereof. 23. TAXES. CHARGES AND PENALTIES: The City shall not be liable for the payment of taxes, late charges or penalties of any nature,except as required by Denver's Revised Municipal Code. 24. TOBACCO PRODUCTS: There shall be no sale or advertising of tobacco products on the premises or in facilities owned or operated or controlled by the City and County of Denver. "Sale" includes promotional distribution,whether for consideration or not,as well as commercial transactions for consideration. "Advertising" includes the display of commercial and noncommercial promotion of the purchase or use of tobacco products through any medium whatsoever, but does not include any advertising and sponsoring which is a part of a performance or show or event displayed or held in city facilities. 25. NOTICES: Notices concerning the termination of this Agreement,notices of alleged or actual violations of the terms or conditions of this Agreement, and other notices of similar importance shall be made: By Contractor to: Manager of General Services 201 West Colfax Avenue Denver,Colorado 80202 And by the City to: KONE INC. One Montgomery Court,PO Box 429 Moline IL, 61265 12 26. SURVIVAL OF CERTAIN PROVISIONS: The parties understand and agree that all terms, conditions and covenants of this Agreement, together with any exhibits and attachments hereto, any or all of which by reasonable implication, contemplate continued performance or compliance beyond the expiration or termination of this Agreement (by expiration of the term or otherwise), shall survive such expiration or termination and shall continue to be enforceable as provided herein. Without limiting the generality of the foregoing, the Contractor's obligations for the provision of insurance and for indemnity to the City shall survive for a period equal to any and all relevant statutes of limitation, plus the time necessary to fully resolve any claims,matters or actions begun within that period. 27. PARAGRAPH HEADINGS: The captions and headings set forth herein are for convenience of reference only. and shall not be construed so as to define or limit the terms and provisions hereof. 28. SEVERABILITY: It is understood and agreed by the parties hereto that if any part, term, or provision of this Agreement, except for the provisions of this Agreement requiring prior appropriation of funds and limiting the total amount payable by the City, is by the courts held to be illegal or in conflict with any law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision held to be invalid. 29. AGREEMENT AS COMPLETE INTEGRATION-AMENDMENTS: This Agreement is intended as the complete integration of all understandings between the parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or effect whatsoever, unless embodied herein in writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a written amendatory or other Agreement properly executed by the parties. This Agreement and any amendments shall be binding upon the parties,their successors and assigns. 30. LEGAL AUTHORITY: A. The Contractor assures and guarantees that he or she possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Agreement. 13 B. The person or persons signing and executing this Agreement on behalf of the Contractor do hereby warrant and guarantee that he/she or they have been fully authorized by the Contractor to execute this Agreement on behalf of the Contractor and to validly and legally bind the Contractor to all the terms,performances and provisions herein set forth. C. The City shall have the right, at its option, to either temporarily suspend or permanently terminate this Agreement, if there is a dispute as to the legal authority of either the Contractor or the person signing the Agreement to enter into this Agreement. The City shall not be obligated to pay Contractor for any performance of the provisions of this Agreement after the City has suspended or terminated this Agreement as provided in this Paragraph. 31. NO CONSTRUCTION AGAINST DRAFTING PARTY: Each of the Parties acknowledge that each of them and their respective counsel have had the opportunity to review this Agreement and that this Agreement shall not be construed against any Party merely because this Agreement or any of its provisions, have been prepared by a particular Party. 32. CONTRACT DOCUMENTS; ORDER OF PRECEDENCE: This Agreement consists of Paragraphs I through 36, which precede the signature page, and the following attachments which are incorporated herein and made a part hereof by reference: Exhibit A Scope of Services Exhibit B Sample Work Order Exhibit C Pricing Proposal Exhibit D Work Order Change Exhibit E Certificates of Insurance/Evidence Coverage Exhibit F Prevailing Wage Rates In the event of(i) an irreconcilable conflict between a provision of Paragraphs 1 through 38, and any of the listed attachments or between provisions of any attachments, such that it is impossible to give effect to both, the order of precedence to determine which document shall control to resolve such conflict, is as follows, in descending order: Paragraphs 1 through 36 Exhibit C Exhibit A Exhibit F Exhibit E 14 Exhibit C Exhibit B Exhibit D 33. OWNERSHIP OF WORK PRODUCT: All plans, drawings, reports, submittals and other documents submitted to the City or its authorized agents by the Contractor shall become and are the property of the City, and the City may,without restriction, make use of such documents and underlying concepts as it sees fit. The Contractor shall not be liable for any damage, which may result from any use of such documents for purposes other than those described in this Agreement. 34. PAYMENT OF PREVAILING WAGE RATES: A. Pursuant to Section 20-76 of the Denver Revised Municipal Code, the Contractor and each of its subcontractors shall pay every worker, laborer or mechanic employed by it directly upon the site of the work under this Agreement the full amounts accrued at the time of payment, computed at wage rates not less than those shown on the current prevailing wage rate schedule. Exhibit F, for each class of employees included in this Agreement. The wages shall be those prevailing as of the date of this Agreement, and the Contractor shall post in a prominent and easily accessible place. a copy of the wage rates for the positions or positions to which the prevailing wage ordinance applies. All construction workers, mechanics and other laborers shall be paid at least once per week; non-construction workers such as janitorial or custodial workers shall be paid at least twice per month. B. The Contractor shall furnish to the City Auditor or his authorized representative, each week during which work is performed under this Agreement, a true and correct copy of the payroll records of all workers employed to perform the work, to whom the prevailing wage ordinance applies. All such payroll records shall include information showing the number of hours worked by each worker, the hourly pay of such worker, any deductions made from pay. and the net amount of pay received by such worker for the period covered by the payroll. The payroll record shall be accompanied by a sworn statement of the Contractor that the copy is a true and correct copy of the payroll records of all workers performing such work, either for the Contractor or a subcontractor, that payments were made to the workers as set forth in the payroll records, that no deductions were made other than those set forth in such records, and that all workers were paid the prevailing wages as set forth in this Agreement. 15 C. If the term of this Agreement extends for more than one year, the minimum City prevailing wage rates which shall be paid during any subsequent yearly period or portion thereof shall be the wage rates in effect on the yearly anniversary date of this Agreement which begins such subsequent period. Decreases in prevailing wages subsequent to the date of this Agreement shall not be effective except on the yearly anniversary date of this Agreement. In no event shall any increases in prevailing wages after the first anniversary of this Agreement result in any increased liability on the part of the City and the possibility and risk of any such increase is assumed by the Contractor. D. If the Contractor or any subcontractor fails to pay such wages as required herein, the City Auditor shall not approve any warrant or demand for payment to the Contractor until the Contractor furnishes to the Auditor evidence satisfactory to the Auditor that such wages so required by this Agreement have been paid. The Contractor may utilize the procedures set out in D.R.M.C. §20-76(d)(4)to satisfy the requirements of this provision. E. If any worker to whom the prevailing wages are to be paid, employed by the Contractor or any subcontractor to perform work hereunder, has not been or is not being paid a rate of wages required by this Paragraph 34, the Manager of General Services may by written notice to the Contractor, suspend by a stop-work order or terminate the Contractor's services hereunder, or the part of such services performed by such workers. The issuance of a stop-work order shall not relieve the Contractor of any obligations or liabilities to the City under this Agreement, including liability to the City for any extra costs incurred by it in obtaining replacement elevator maintenance and repair services while any such stop-work order is in effect or following termination for such cause. 35. NO EMPLOYMENT OF ILLEGAL ALIENS TO PERFORM WORK UNDER THE AGREEMENT: A. This Agreement is subject to Division 5 of Article IV of Chapter 20 of the Denver Revised Municipal Code,and any amendments (the"Certification Ordinance"). B. The Contractor certifies that: (1) At the time of its execution of this Agreement, it does not knowingly employ or contract with an illegal alien who will perform work under this Agreement. 16 (2) It will participate in the E-Verify Program, as defined in § 8 17.5-101(3.7), C.R.S., to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement. C. The Contractor also agrees and represents that: (1)It shall not knowingly employ or contract with an illegal alien to perform work. under the Agreement. (2) It shall not enter into a contract with a subconsultant or subcontractor that fails to certify to the Contractor that it shall not knowingly employ or contract with an illegal alien to perform work under the Agreement. (3) It has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Agreement, through participation in the E-Verify Program. (4) It is prohibited from using the E-Verify Program procedures to undertake pre- employment screening of job applicants while performing its obligations under the Agreement, and that otherwise requires the Contractor to comply with any and all federal requirements related to use of the E-Verify Program including, by way of example, all program requirements related to employee notification and preservation of employee rights. (5) If it obtains actual knowledge that a subconsultant or subcontractor performing work under the Agreement knowingly employs or contracts with an illegal alien, it will notify such subconsultant or subcontractor and the City within three (3) days. The Contractor will also then terminate such subconsultant or subcontractor if within three (3) days after such notice the subconsultant or subcontractor does not stop employing or contracting with the illegal alien, unless during such three-day period the subconsultant or subcontractor provides information to establish that the subconsultant or subcontractor has not knowingly employed or contracted with an illegal alien. (6) It will comply with any reasonable request made in the course of an investigation by the Colorado Department of Labor and Employment under authority of § 8-17.5-102(5), C.R.S, or the City Auditor, under authority of D.R.M.C. 20-90.3. 17 D. The Contractor is liable for any violations as provided in the Certification Ordinance. If Contractor violates any provision of this section or the Certification Ordinance, the City may terminate this Agreement for a breach of the Agreement. If the Agreement is so terminated, the Contractor shall be liable for actual and consequential damages to the City. Any such termination of a contract due to a violation of this section or the Certification Ordinance may also, at the discretion of the City, constitute grounds for disqualifying Contractor from submitting bids or proposals for future contracts with the City. 36. CITY EXECUTION OF AGREEMENT: This Agreement is expressly subject to, and shall not be or become effective or binding on the City until it has been fully executed by all signatories of the City and County of Denver. 37. ELECTRONIC SIGNATURES AND ELECTRONIC RECORDS: Contractor consents to the use of electronic signatures by the City. The Agreement, and any other documents requiring a signature hereunder, may be signed electronically by the City in the manner specified by the City. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic document, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. 38. COOPERATION ON CLAIMS: City agrees to cooperate with Contractor in. the investigation and resolution of any claims brought against either of them arising out of this agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 18 Contract Control Number: GENRL-201414653-00 Contractor Name: Kone Inc. IN WITNESS WHEREOF, the parties have set their hands and affixed their seals at Denver, Colorado as of March 24, 2014. V,r•4j �Ri� rn SEAL r:''ti,, ��.� CITY AND COUNTY OF DENVER SEAL ATTEST: By INicha ancock, Mayor Jueh Guzman, Deputy Clerk & Recorder APPROVED AS TO FORM: REGISTERED AND COUNTERSIGNED: D. Scott Martinez, Attorney for the City and County of Denver By C-1Th Cary Kenne , Man of Finance By -___— _ .. `�...• . Robert Wheeler, Assistant City Attorney By 4 it i 6 Dennis . allagh , Auditor Contract Control Number: GENRL-201414653-00 Contractor Name: Kone Inc. 44L6 By: Name: (please print) Je# Blum Senior Woe President West Region Title: (please print) ATTEST: jif required) By: Name: (please print) Title: (please print)