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<br />5. TERMS AND CONDITIONS (Maintenance Service Agreement)
<br />MAINTENANCE
<br />PROPOSAL
<br />This agreement (the 'Agreement) is made this 22 day of November, 2016 between City of South Bend, located at 501 South St South Bend, IN 46601(the
<br />"Customer-), and HAVEL/SHAMBAUGH South Bend, located at 3210 Sugar Maple (the "Contractor).
<br />1. SERVICES:
<br />1.1. Contractorwill perform the mechanical maintenance services set forth in Appendix Al (Equipment Ust) and A2 (Tasking), (the 'Services"), attached
<br />hereto, for Customer at Customers premises, located at Four Winds Field at 501 South St South Bend, IN 46601.
<br />1.2. Contractor will provide the Services at the Site for the equipment set forth in Appendix Al (the'Equipmene'),
<br />1.3. Contractor will perform the Services for the Equipment pursuant to the provisions of this Agreement, including the provisions set forth in Schedule I.
<br />2. PRICING AND PAYMENT- Customer agrees to pay Contractor pursuant to the provisions of this Agreement, including the provisions set forth in Schedule 11,
<br />Pricing, Invoicing, and Payment, attached hereto, for the Term (as defined herein).
<br />3. PRELIMINARY WORK AND ADDITIONAL WORK:
<br />3.1. Prior to performing any Services, Contractor will conduct an initial inspection of the Equipment to determine if the Equipment is in good working order
<br />and in suitable condition for the Services. If Contractor determines that initial repair, replacement, or other work is required for any Equipment prior to
<br />commencement of the Services, such work shall not constitute a Service under this Agreement, and Contractor will provide Customer with a quotation for
<br />such work. If Customer refuses to authorize such work Contractor may, at its sole option, renegotiate the provisions of this Agreement for such Equipment
<br />or terminate this Agreement.
<br />3.2. If Customer requests maintenance, repair, replacement, emergency services, or any other work that Contractor concludes is outside the scope of
<br />Services, Customer will pay Contractor the rates and material charges then applicable to such labor and items at such time.
<br />4. SITE ACCESS AND CUSTOMER OBLIGATIONS- Customer agrees to:
<br />4.1 provide safe and reasonable access to the Equipment so that Contractor can perform the Services, and to remove any partitions, fixtures, or materials
<br />that may impede Contractors ability to perform the Services;
<br />4.2 allow Contractor to start and stop the Equipment as is necessary to perform the Services;
<br />4.3 provide any other assistance as is reasonably necessary so that Contractor can perform the Services;
<br />4.4 use and operate the Equipment in accordance with the manufacturers specifications and directions;
<br />4.5 immediately notify Contractor in the event of any change in the normal use or operation of the Equipment, or any Equipment malfunction; and
<br />4.6 take reasonable safety precautions to protect life and properly including, but not limited to, fire watch and/or suppression, in the event of any
<br />emergency or system failure during the period of time from when Contractor is first notified of the emergency or failure until such time that Contractor
<br />notifies Customer that the emergency has cleared or the system is operational.
<br />S. WARRANTY:
<br />SA. Contractor warrants that (1) the materials provided in performing the Services will be free from defects to the same extent as set forth in the warranty
<br />provided by the manufacturer of such materials and (5) the workmanship provided in performing the Services will be good and of a workman -like standard
<br />for sixty (60) days from the date of the Services.
<br />5.2. Contractors warranty in section 5.1. of this article (I) applies only to materials and labor furnished by Contractor in performing the Services and (ii) shall
<br />be null and void if Customer subsequently has another contractor provide goods or services that relate to, concern, or otherwise affect the Equipment.
<br />5.3. Contractor promptly shall repair or replace, at its sole option, any defective materials occurring within the applicable waramy period for such item, to
<br />the extent of such warranty. If a manufacturers warranty excludes payment to Contractorfor labor costs associated with removal, installation, repair, or
<br />other like or similar costs to remedy defective materials. Contractor will provide such labor at its own expense during normal working hours for sixty (60)
<br />days from the date of the Service, and if Customer requires warranty work at any other time outside normal hours, Customer will pay Contractor the rates
<br />then applicable to such labor at such time. Thereafter, Customer will pay Contractor the rates then applicable to such labor at such time.
<br />5.4. Contractor promptly shall repair or replace, at its sole option, any improper workmanship of its Work occurring within the applicable warranty period
<br />without cost to Customer. Contractor will provide laborforthe performance of this warranty work at its own expense only during normal working hours,
<br />and if Customer requires warranty work at any other time, Customer will pay Contractor the rates then applicable to such labor at such time.
<br />5.5. CUSTOMER'S SOLE AND EXCLUSIVE WARRANTY IS THE REPAIR OR REPLACEMENT SET FORTH IN THIS ARTICLE. THERE ARE NO WARRANTIES WHICH
<br />EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
<br />PARTICULAR PURPOSE, OR ANY OTHER IMPLIED WARRANTIES. CONTRACTOR'S TOTAL LIABILITY UNDER THIS WARRANTY 15 LIMITED TO THE OBLIGATIONS
<br />SET FORTH IN THIS ARTICLE. THIS IS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND IT IS IN LIEU OF ANY AND ALL OTHER POSSIBLE REMEDIES, DAMAGES,
<br />CLAIMS, OR WARRANTIES WHETHER EXPRESS OR IMPLIED. THE DAMAGE LIMITATION SET FORTH IN ARTICLE 7 ALSO SHALL APPLY TO THIS WARRANTY.
<br />6. EXCUSED DELAY:
<br />6.1. Contractor shall not be liable for any delay, or loss or damage arising therefrom, and shall be entitled to additional time for the Services, ifthe delay is
<br />caused by an occurrence beyond the control of Contractor, or Contractors subcontractors, suppliers, or vendors, and without fault or negligence of any of
<br />them.
<br />6.2. Contractor shall be entitled to additional compensation for any excused delay as set forth in section 6.1 of this article.
<br />6.3. Contractor shal I be entitled to additional compensation for any acceleration or compression of the schedule set forth in Schedule I, and for any out of
<br />sequence or overtime work except to the extent caused by Contractors own negligent acts or omissions.
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