Opening of Proposals - HVAC Preventative Maintenance Plan for VPA - Havel Shambaugh

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- €MCOR 7. LIMITATION OF t1ARIUTV- MAINTENANCE PROPOSAL 7.1. Under no circumstances, whether arising out of contract, tort (including negligence), strict liability, warranty or otherwise, shall either party be liable to the other for special, indirect, incidental, consequential, exemplary or punitive damages of any nature. 7.2. In no event shall Contractors aggregate liability to Customer for such actual and direct damage exceed an amount, at Contractors sole option, that is equal to (i) the amount of this Agreement, but 0 the Agreement is multi -year agreement or variable -priced agreement, an amount that is equal to the value of all Services performed in the year of the event giving rise to the claim, or (ii) the cost to Contractor to repair or replace the Equipment giving rise to the claim. 8. HAZARDOUS MATERIALS: 8.1. Contractor shall nut perform any services of any sort that concerns hazardous materials, and shall have no responsibility for accumulation, storage, transportation, or disposal of any hazardous materials or waste generated by Customer or present at the Site. 9.2. Contractor shall not be deemed an 'operator' of the Site for purposes of current or pending federal, state, or local laws, rules, or regulations pertaining to hazardous materials. 8.3. In no event shall Contractor be required to sign any manifests related to hazardous materials generated by Customer or present at the Site. 8.4. Customer shall disclose to Contractor in writing and in advance of Contractor performing any Services any known hazardous materials that are present at the Site, including, but not limited to, the location and type of each such hazardous material, so that Contractor can inform and protect its employees from health risks associated with such hazardous materials. 8.5. Contractor shall not be required to perform any Services in any part of the Site where hazardous materials are present or where Contractor suspects the presence of hazardous materials, and Contractor immediately may stop providing Services in either instance and notify Customer of the circumstance giving rise to the stoppage. Contractors nonperformance of Services due to such actual or potentially unsafe working conditions shall constitute an excused delay. Customer will be responsible for taking any and all actions necessary to correct such condition in accordance with all applicable laws and regulations, and Contractor will resume performance of the Services in the affected area only in the absence of hazardous materials and/or when the affected area has been rendered harmless and safe for Contractors performance of the Services. 8.6. Customer shall defend, indemnify, and hold harmless Contractor from any claims, damages, losses or expenses, including, but not limited to, reasonable attorneys fees, arising out of or resulting from this article. 9. TERM AND TERMINATION: 9.1. The term of this Agreement shall be for a period of •2a year(s), commencing v1/1/2017v and terminating x12/31/18v (the 'Term*), unless sooner terminated as provided herein. 9.2. This Agreement automatically shall renew for successive one (1) year terms, commencing on the expiration of the Term, and renewing on each such yearly a nniversary thereafter, conditioned upon mutually acceptable provisions, as set forth in section 9.3. of this article. 9.3. The provisions set forth in Schedules I and 11 shall apply for the duration of the Tenn. If the Agreement is not terminated at the end of the Term, the parties will endeavor to reach agreement on mutually acceptable prospective provisions, which will apply to the next yearly successive term. The parties will follow such process for each successive yearly term until the Agreement is terminated. Failure to reach agreement on prospective provisions for any successive yearly term shall render the Agreement terminated, which the parties shall confirm in writing. 9.4. Customer or Contractor may terminate this Agreement ji) for convenience upon sixty (60) days prior written notice to the other parry or (ii) upon thirty (30) days written notice prior to the commencement of any successive yearly term. In the event of either such termination, Customer will pay Contractor for all Services performed through the date of termination and, in addition, in the event or termination for convenience by Customer, all other reasonable costs incurred by Contractor that are associated with such termination. 9.5. Customer may terminate this Agreement for cause, but only upon seven (7) days written notice and, further, upon Contractors failure to commence curative measures in such time and thereafter to proceed to effect such cure. In the event of such termination, Customer will pay Contractor all undisputed amounts due Contractor for all Services performed through to the date of termination. 9.6. Contractor may suspend its performance of Services, without liability of any sort to Customer, if Customer fails to make payment to Contractor within thirty (30) days after the date payment is due. Upon payment, Contractor will recommence performance, and shall be entitled to an extension of time equal to the suspension and all reasonable costs associated with such suspension. 9.7. If, during the Tern or successive terms of this Agreement, Customer utilizes an entity other than Contractor to perform any repair, replacement, modification, or other work on any Equipment, Contractor may, at its sole option, renegotiate the provisions of this Agreement for such Equipment or terminate this Agreement. 10. NO ASSIGNMENT- Neither Customer nor Contractor shall assign any of its rights or obligations hereunder without the prior written approval of the other party. 11. CHOICE OF LAW AND JURISDICTION: 11.1. This Agreement shall be governed by, construed, and enforced for all purposes in accordance with the laws of the State where the Services are performed, without giving effect to its conflict of laws provisions. 11.2. Any and all actions arising from, relating to, or concerning the subject matter of this Agreement shall be commenced in the United States Federal Court in the appropriate district of such State or the State court of such State, either of which shall have exclusive jurisdiction over such actions. 11.3. Any such action shall be submitted TO THE COURT ONLY for resolution, WITHOUTTRIAL TO A JURY. THE PARTIES HEREBY WANE ANY RIGHT TO A JURY TRIAL REGARDING ANY SUCH ACTION. 11.4. Any such action also shall be commenced with one (1) yearirom the date of the Services giving rise to such claim, with the exception of any action by Contractor for collection of amounts due to it.