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The above limits are obtained through primary and excess policies.
<br />The City of South Bend, Indiana is a municipal corporation that is self-insured under provisions of Indiana statutes and
<br />local ordinance. Specifically, 'the City of South Bend is covered by anon-reverting insurance premium and liability
<br />reserve fund created by the City of South Bend, Ordinance #6657-79, pursuant to I.C. 34-13-3-4, as amended from
<br />time to time.
<br />11. INDEMNITY. South Bend assumes all risk and liability for the use, operation, and storage of the Equipment, and for
<br />injuries or death to persons or damage to property arising out of the use, operation, or storage of the Equipment,
<br />except for any injuries or death to persons or damage to property caused by the negligence of JCI, it employees,
<br />agents or assigns. South Bend shall indemnify and hold harmless JCI, its employees, agents, and assigns from and
<br />against all claims, actions, damages, liabilities, and expenses, including attorney's fees, arising out of or related to this
<br />Agreement, except for injuries or death to persons or damage to property caused by the negligence of JCI, its
<br />employees, agents or assigns.
<br />JCI shall indemnify and hold harmless South Bend, its employees, agents, and assigns against all claims, actions,
<br />damages, liabilities, and expenses, including attorney's fees, arising out of or related to any claims of patent
<br />infringement and any claims of construction or materialman's lien made by any subcontractor or materialman. JCI and
<br />South Bend agree that JCl shall be responsible only for such injury, loss, or damage caused by the intentional
<br />misconduct or the negligence act or omission of JCI. The obligations of JCI and of South Bend under this paragraph
<br />are further subject to paragraph 12 below.
<br />12. LIABILITY AND FORCE MAJEURE. JCI shall not be liable under this Agreement in an amount in excess of its
<br />primary general comprehensive policy limits. Neither JCI nor South Bend will be responsible to the other for any
<br />special, indirect, or consequential damages arising in any manner from the Work or Services. Neither party will be
<br />responsible to the other for damages, loss, injury, or delay caused by conditions that are beyond the reasonable
<br />control, and without the intentional misconduct or negligence, of that party. Such conditions include, but are not limited
<br />to: acts of God; acts of Government agencies; strikes; labor disputes; fire; explosions or other casualties; thefts;
<br />vandalism; riots or war; acts of terrorism; or unavailability of parts, materials or supplies. If this Agreement covers fire
<br />safety or security equipment, South Bend understands that JCI is not an insurer regarding those services. JCI shall
<br />not be responsible for any damage or loss that may result from fire safety or security equipment that fails to perform
<br />properly or fails to prevent a casualty loss. JCI is also not responsible for any injury, loss, or damage caused by
<br />equipment that is not Covered Equipment, as defined in Schedule 3.
<br />13. JCI'S PROPERTY. All materials furnished by and used by JCI personnel and/or JCI authorized subcontractors or
<br />agents at the installation site, including documentation, schematics, test equipment, software, and associated media
<br />remain the exclusive property of JCI. South Bend agrees not to use such materials for any purpose at any time.
<br />South Bend agrees to allow JCI personnel and/or JCI authorized subcontractors or agents to retrieve and to remove all
<br />such materials remaining after installation or maintenance operations have been completed. South Bend
<br />acknowledges that all JCI software included is proprietary and will be delivered only under the provisions of an
<br />appropriate Software License Agreement that will limit its use to the system purchased under this Agreement.
<br />14. DISPUTES. If a dispute arises under this Agreement, the parties shall promptly attempt in good faith to resolve the
<br />dispute by negotiation. Any claim, dispute or other matter in question arising out of or related to this Agreement not
<br />resolved by negotiation shall be subject to mediation as a condition precedent to the institution of legal or equitable
<br />proceedings by either party. The party requesting mediation shall submit a written request to the other party and such
<br />request shall be submitted not less than sixty (60) days prior to any filing of legal or equitable proceedings. The parties
<br />shall share the mediator's fee equally and any filing fees equally. The mediation shall take place in a mutually agreed
<br />upon location. Agreements reached in mediation shall be enforceable as settlement agreements in any court of
<br />competent jurisdiction.
<br />15. MODIFICATIONS. Additions, deletions, and modifications to this Agreement may be made upon the mutual
<br />agreement of the parties in writing. The parties contemplate that such modifications may include but are not limited to
<br />the installation of additional improvement measures, energy conservation measures, facility improvement measures,
<br />and operational efficiency improvements or furnishing of additional services within the identified facilities, as well as
<br />other facilities owned or operated by South Bend. These modifications may take the form of additional phases of work
<br />or modifications to the original scope of Work or Services.
<br />16. NOTICES. All notices or communications related to this Agreement shall be in writing and shall be deemed served if
<br />and when sent by by certified or registered mail to JCI at the address listed on page 1 of this Performance Contract
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<br />Performance Contract (Rev 14)
<br />SB LED Contract 15June 2007_FINAL(ver7)
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