EFTA01071792.pdf

SIEMENS Industry SERVICE PROPOSAL ➢ Rich Barnet No.: 1111031 ➢ 9 East 71st Street Date December 9, 2010 ➢ New York, NY 10021 Limiting Date: 30 Days Project Proposal Level 3 Energy Audit Proposal Siemens Industry, Inc. will provide an ASHRAE Level 3 Energy Audit Report for the building at 9 East 71ST Street. This audit will be used to determine the most financially viable energy improvements at the site. and the cost to implement each improvement. Major points of the audit will include: 1. Metering (Electric and steam) and integration into the BMS. 2. Retro-commissioning of: a. Cooling System (chillers, towers, pumps, coils) b. Controllable points: temperature settings, automated approaches c. Modes of operation based on occupancy d. Humidity Control e. Other possible HVAC improvements (DCV, OA economizer, VFD's) 3. Lighting system improvements (retrofits of advanced lighting technologies) 4. Specific energy procurement strategies 5. Investigate NYSERDA and ConEd Energy rebate incentives. 6. An ENERGY STAR benchmarking profile will be created Investment: $9,863.00: (Nine Thousand Eight Hundred Sixty Three Dollars) Plus Tax ri Wiring by Siemens. Inc. ❑ Wiring by others ri No wiring required Terms of Payment: ri Net 30 Payments • No Retainage • _0_% in Advance The Terms and Conditions of Sale shown on reverse are a part hereof Please provide a Tax Exempt Certificate or add Tax to this proposal Proposal Accepted: Proposal Submitted: Siemens, Inc. is authorized to proceed with the work Siemens. Inc. as proposed. Purchaser By Bradley Rickert By Title Account Executive Title Date December 8, 2010 Date EFTA01071792 SIEMENS BUILDING TECHNOLOGIES, INC. TERMS AND CONDITIONS such failures These Terms and Conditions are incorporated by reference and form an integral Arad& 3: Responsibilities of CLIENT part of each proposal or agreement between Siemens Building Technologies. Inc. 3.1 CLIENT. without cost to SIEMENS, shall: (SIEMENS') and the party for whom the Work is to be performed (CLIENT). The (a) Designate a contact person with authority to make decisions for CUENT portions of each proposal or agreement relating to 'Scope of Work" or "Proposed regarding the Work and provide SIEMENS with information sufficient to contact Solution' (in either case "Scope,, together with these Terms and Conditions. are such person in an emergency. II such representative cannot be reached, any collectively referred to as the "Agreement'. request for work received from a person located at CLIENT's premises will be Article 1: General deemed authorized by CLIENT, and SIEMENS will in its discretion, act 1.1 (a) The Agreement. when accepted in writing by CUENT and approved by accordngly.: an authorized representative of SIEMENS. constitutes the entire, complete and (b) Provide or arrange for reasonable access and make al provisions for exclusive agreement between the parties relating to the services ('Services-) and SIEMENS to enter any site where Work is to be performed: the equipment (*Equipment') to be provided by SIEMENS as described in the (c) Permit SIEMENS to control and/or operate all facility controls, systems. Scope (such Services and Equipment collectively referred to as "Work" and shall apparatus. equipment and machinery necessary to perform the Work: supersede and cancel all prior agreements and understancings, written or oral. (d) Furnish SIEMENS with all available information pertinent to the Work: relating to the subject matter of the Agreement. The Agreement and any rights or (e) Furnish SIEMENS nith all approvals. permits and consents from government obligations thereunder may not be assigned by either party without the prior written authorities and others as may be requied for performance of the Work except for consent of the other, except that either party may assign this Agreement to its those SIEMENS has expressly agreed in writing to obtain: affiliates and SIEMENS may use subcontractors in the performance ol the Work. (I) Notify SIEMENS promptly of any site conditions requiring special care. and (b) The terms and conditions of this Agreement shall not be modified or rescinded provide SIEMENS with any available documents describing the quantity. nature. except in writing. signed by a corporate officer of SIEMENS. SIEMENS' location and extent of such conditions: performance under this Agreement is expressly conditioned on CLIENTs (g) Comply nigh all laws and provide any notices required to be given to any assenting to all of the terms of this Agreement, notwithstanding any different or government authorities in connection with the Work except such notices SIEMENS additional terms contained in any writing at any time submitted or to be submitted has expressly agreed in writing to give: to SIEMENS by CLIENT relating to the Work. (h) Provide SIEMENS with Material Safety Data Sheets that conform to OSHA c) The terms and conditions set forth herein shall supersede. govern and requirements related to all Hazardous Materials located at the site: control any conflicting terms of the Proposed Solution or the Proposal. (I) Furnish to SIEMENS any contingency plans related to the site: and (j) Furnish the specified operating environment. including without limitation. d) Nothing contained in this Agreement shall be construed to give any rights or benefits to anyone ocher than the CLIENT and SIEMENS vnthoul the express written suitable. clean. stable. properly conditioned electrical power to all Equipment: consent of both parties. All obligations arising prior to this Agreement and all telephone lines. capacity and connectivity as required by such Equipment: and provisions of this Agreement allocating responsitilly or liability between the parties heat light, air conditioning and other utilities in accordance with the specifications shall survive the completion of the Work and the termination of this Agreement. for the Equipment. 1.2 This Agreement shall be governed by and enforced in accordance with the 32 CLIENT acknowledges that the technical and pricing inlomsation contained in laws of the Slate of Illinois. All claims or disputes arising under this Agreement this Agreement is confidential and proprietary to SIEMENS and agrees not to shall be litigated in the Slate. Commonwealth. or Province in which Services are disclose it or otherwise make it available to others without SIEMENS' express being provided to CLIENT hereunder. written consent. Article 2: Wolk by SIEMENS 3.3 CLIENT acknowledges that it is now and shall at all times remain in control of 2.1 SIEMENS will perform the Work expressly described in this Agreement and in the project site. Except as expressly provided herein. SIEMENS shall not be any work release documents or change orders that are issued under this responsible for the adequacy of the health or safety programs or precautions related Agreement and signed by the parties. The Work performed by SIEMENS shall be to CLIENTS activities or operations. CUENrs other contractors. the work of any conducted in a manner consistent with the degree ol care and skill ordinarily other person or entity. or CLIENT's site conditions. SIEMENS is not responsible for exercised by reputable firms performing the same or similar Work in the same locale inspecting, observing, reporting or correcting health or safety conditions or acting under similar circumstances and conditions. deficiencies of CLIENT or others at CLIENT's site. So as not to discourage 2.2 SIEMENS shall perform the Work during its normal working hours. Monday SIEMENS from voluManly addressing health or safety issues al CLIENTs site. in though Friday. excluding holidays, unless otherwise agreed herein. the event SIEMENS does adtress such issues by making observations. reports. 2.3 SIEMENS is not required to conduct safety or other tests, install new devices suggestions or otherwise. SIEMENS shall not be liable or responsible on account or equipment or make modifications to any Equipment beyond the Scope set forth thereof. in this AgreemenL Any CUENT request to change the Scope or the nature of the 3.4 CLIENT is solely responsible for any removal, replacement or refinishing of Work must be in the form of a mutually agreed change order. ellactive only when the building structure or finishes that may be required to gain access to the Work. executed by all parties hereto. 3.5 CLIENT shall properly dispose of all ballasts, mercury bulb thermostats, used 2.4 All reports and drawings specifically prepared for and deliverable to CLIENT oil, contaminated filters. contaminated absorbents, refrigerant and any other pursuant to this Agreement (Deliverables') shall become CLIENTS properly upon Hazardous Materials that at any time are present at CUENTs premise's. in full payment to SIEMENS. SIEMENS may retain file copies of such deliverables. All accordance with all applicable federal, state. and local laws. regulabons, and other reports. notes. cakulations. data. drawings. estimates, specifications. ordinances. manuals. other documents and all computer programs. codes and computerized Article 4. Changes: Delays; ExcusedPerformance materials prepared by or for SIEMENS are instruments of SIEMENS' work 4.1 As the Work is performed. conditions may change or circumstances outside (Instruments') and shall remain SIEMENS' property. To the extent specified in the SIEMENS' reasonable control (including changes of law) may develop which would Scope. CLIENT, its employees and agents ('Permitted Users") shall have a require SIEMENS to expend additional costs. effort or time to complete the Work. in right to make and retain copies of Instruments except uncompiled code, and to which case SIEMENS will notify CLIENT and an equitable adjustment wit be made use all Instruments, provided however, the Instruments shall not be used or to SIEMENS compensation and time for performance. In the event conditions or relied upon by any parties other than Permitted Users. and such use shall be circumstances require the Work to be suspended Cr terminated. SIEMENS shall be limited to the particular project and location for which the Instruments were compensated for Work performed and for costs reasonable incurred in connection provided. All Deliverables and Instruments provided to CUENT are for Permitted with the suspension or termination. Users' use only for the purposes disclosed to SIEMENS. and CLIENT shall not 4.2 SIEMENS shall not be responsible for loss. delay, injury, damage or failure of transfer them to others or use them or permit them to be used for any extension of performance that may be caused by circumstances beyond its control. including the Work or any other project or purpose, without SIEMENS express written but not restricted to acts or omissions by CUENT or its employees, agents or consent. Any reuse of Deliverables or Instruments for other projects or locations contractors. Acts of God. war, civil commotion. acts or omissions of government without the written consent of SIEMENS. or use by any party other than authorities, fire. theft, corrosion, flood. water damage. lightning. Ireeze-ups. slnkes. Permitted Users will be at Permitted Users risk and without liability to lockouts, differences with workmen. riots. explosions. quarantine restrictions. SIEMENS: and CLIENT shall indemnity. distend and hold SIEMENS harmless delays in transportation, or shortage of vehicles. fuel. labor or materials. In the from any claims, losses or damages arising therefrom. event of such delay or failure. the time for performance shall be extended by a 2.5 SIEMENS shall be responsible for any portion of the Work performed by any period equal to the time lost plus a reasonable recovery period and the subcontractor of SIEMENS. SIEMENS shall not have any responsibility, duty or compensation shall be equitably adjusted for additional costs SIEMENS incurs due authority to direct. supervise or oversee any contractors of CLIENT or their work or to such delay. to provide the means, methods or sequence of their work or to stop their work. Article 5: Compensation SIEMENS' work and/or presence at a site shall not relieve others of their 5.1 Unless otherwise agreed in writing. SIEMENS shall be compensated for the responsbilin to CLIENT or to others. SIEMENS shall not be liable for the labre of Work at its prevailing rates and reimbursed for costs and expenses (plus reasonable CLIENT's contractors or others to fulfill their responsibilities. and CLIENT agrees to profit and overhead)incurred in its performance of the Work. indemnify, hold harmless and delend SIEMENS against any claims arising out of 52 SIEMENS may invoice CLIENT on a monthly or other progress billing basis. EFTA01071793 SIEMENS BUILDING TECHNOLOGIES, INC. Invoices are due and payable won receipt or as otherwise set forth in the Employers' Liability $1.000.000 each accident Agreement. II any payment is not received when due. SIEMENS may deem Commercial General Liability $1.000.000 per occurrence and CLIENT to be in breach hereof and may enforce any remedies available to it $5,000,000 in the aggregate hereunder or at law. including without limitation. acceleration of payments and Automobile Liability $1.000.000 par occurrence/aggregate suspension or termination of the Work al any time and without notice and shall be 6.5 Risk ol loss of materials and Equipment furnished by SIEMENS shall pass to entitled to compensation for the Work previously performed and for costs CLIENT upon delivery to CLIENT's premises. and CLIENT shall be responsible for reasonably incurred in connection with the suspension or termination. My amount protecting and insuring them against theft and damage. However, until SIEMENS is not paid within sixty (60) days ol the date due shall accrue interest from the date paid in full. SIEMENS shall retain title for security purposes only and the right to due, until paid. at the rate ol ten percent (10%) per annum. CLIENT shall repossess the materials and Equipment. reimburse SIEMENS for SIEMENS' costs and expenses (including reasonable 6.6 SIEMENS will indemnify CUENT lrom and against losses, claims, expenses attorneys and wtlnesses' lees) incurred for collodion under this Agreement. In the and damages (inducting reasonable attorney's lees) for personal injury or physical event ol a dispute by CUENT regarding any portion or all of an invoiced amount. it damage to property, but not loss of use of the property resulting from such shall notify SIEMENS in writing of the amount in dispute and the reason for its damage or from damage to any work performed hereunder. Such indemnification disagreement within 21 days of receipt of the invoice, the undisputed portion shall shall be solely to the extent caused by or arising directly from SIEMENS' or its be paid when due, and interest on the disputed, unpaid portion shall accrue as empfoyees. consultants' or agents negligent acts or omissions or willful aforesaid. trom the date due until the date of payment, to the extent that such misconduct in connection with its performance ol Services hereunder. SIEMENS' amounts are finally determined to be payable to SIEMENS. obligations under this indemnity provision shall not extend to claims. losses. 5.3 Except to the extent expressly agreed in writing, SIEMENS' lees do not expenses and damages arising out of or in any way attributable to the negligence include any taxes. excises, lees. duties or other government charges related to the of CLIENT or its agents. consultants or employees other than SIEMENS. Work. and CLIENT shall pay such amounts or reimburse SIEMENS for any SIEMENS' liability to CLIENT or any third party under this Section 6.6 or otherwise amounts it pays. II CLIENT claims a tax exemption or tired payment permit, it shall under the Agreement is expressly limited to, and SIEMENS shall not be liable provide SIEMENS with a raid exemption certificate or permit and indemnify. defend other than for the direct losses. claims, expenses and damages arising as and hold SIEMENS harmless from any taxes. costs and penalties arising out of aforesaid. Neither party shall in any event be responsible under this Agreement same. for incidental, consequential. punitive. exemplary or special damages. including Article 6: Warranty, Insurance and Allocation ofRisk without limitation lost profits ardor lost business wportunifies. whether arising in 6.1 (a) Until one year from either the date the Equipment is installed or the date warranty. late or nondelivery of any Work, tort, contract or strict liability. and of first beneficial use. whichever first occurs. all Equipment manufactured by regardless ol whether SIEMENS has been advised of the possibility of such SIEMENS or bearing its nameplate will be free from deflects in material and damages. SIEMENS reserves the right to control the defense and settlement of workmanship arising from normal use and service. any claim for which SIEMENS has an obligation to indemnify hereunder. The (b) Labor for all Services under this Agreement is warranted to be free from parties acknowledge that the price which SIEMENS has agreed to perform its defects for one year after the earlier of the dale the Services are substantially Work and obligations under this Agreement is calculated based upon the completed or the date ol fist beneficial use. foregoing limitations of liability. and that SIEMENS has expressly retied on, and (e) Equipment will not tail to function because of errors in processing. would not have entered into this Agreement but for such limitations of liability. providing or receiving date or time data involving dates between January t. Article 7: Hazardous Materials Provisions 1999 and March 31. 2001. provided other products and software. including the 7,1 The Work does not include directly or indirectly performing or arranging tor the computer workstation. with which the system interacts properly exchange date detection. monitoring. handing. storage. removal. transportation, disposal or and time data with the system. treatment ot Oil or Hazardous Materials. Except as disclosed pursuant to Section 6.2 (a) The limited warranties set forth in Section 6.1 will be void as to. and shall 7.3. CLIENT represents that there is no asbestos or any other hazardous or toxic not apply to. any Work (i) repaired. altered or improperly installed by any person materials, as defined in the Comprehensive Environmental Response, other than SIEMENS or its authorized representative: (ii) subjected to Compensation and Liability Act ot 1980, as amended, the regulations promulgated unreasonable or improper use or storage, used beyond rated conditions. operated thereunder, and other applicable federal, state or local law ('Hazardous other than per SIEMENS' or the manufacturers instructions. or otherwise Materials", present at CLIENTs locations where Services are perlormed. subjected to improper maintenance, negligence or accident: (iii) damaged SIEMENS will notify CUENT immediately if it discovers or suspects the presence because of any use of the Work after CLIENT has, or should have. knowledge of of any Hazardous Material. All Services have been priced and agreed to by any detect in the Work: or (iv) Equipment not manulactured. fabricated and SIEMENS in reliance on CLIENTs representations as set forth in this Section 7.1 assembled by SIEMENS or not bearing SIEMENS' nameplate. However, The presence of Hazardous Materials constitutes a change in the Proposed SIEMENS assigns to CLIENT, without recourse. any and all assignable warranties Solution equivalent to a change order whose terms must be agreed to by available from any manufadurer. supplier, or subcontractor ol such Equipment SIEMENS before its obligations hereunder will continue. and will assist CLIENT in enforcement of such assigned warranties. 7.2 CLIENT shall be solely responsible for testing, abating. encapsulafing, (b) Any claim unciar the limited warranty granted above must be made in writing removing, remedying or neutralizing such Hazardous Materials, and for the costs to SIEMENS within thirty (30) days after discovery of the claimed defect. or with thereof. Even if an appropriate change order has been entered into pursuant to respect only to the warranty set forth in Subsection 4.1(c) prior to April 1. 2001, Section 7.1 above, SIEMENS will continue to have the right to stop providing unless discovered directly by SIEMENS. Such limited warranty only extends to Services until the job site is free from Hazardous Materials. In such event. CLIENT and not to any subsequent owner of the Equipment. CLIENTs sole and SIEMENS will receive an equitable extension ol time to complete its Services. and exclusive remedy for any Equipment or Services not conforming with this limited compensation for delays caused by Hazardous Materials remediation. In no event warranty is limited to. at SIEMENS' option, (i) repair or replacement ol defective shall SIEMENS be required or construed to take title, ownership or responsibility for components of covered Equipment. or (ii) repertormance of the defective portion of such Oil or Hazardous Materials. CLIENT shall sign any required waste manifests in the Services, or (ii) to the extent previously paid. the issuance ol a credit or refund conformance with all government regulations. listing CLIENT as the generator of the for the original purchase price ol such detective component or potion of the waste. Equipment or Services. 7.3 CLIENT warrants that, prior to the execution of the Agreement. it has notified (e) SIEMENS shall not be required to repair or replace more than the SIEMENS in writing of any and all Hazardous Materials present, potentially component(s) of the Equipment actually found to be defective. SIEMENS' present or likely to become present at CLIENTs locations and has provided a copy warranty liability shall not exceed the purchase price of such item. Repaired or of any jobsite safely policies. including but not limited to lockout and tag replaced Equipment will be warranted hereunder only for the remaining portion of procedures. laboratory procedures. chemical hygiene plan. material safely data the original warranty period. sheets or other items covered or required to be disclosed or maintained by federal. 6.3 THE EXPRESS UMITED WARRANTIES PROVIDED ABOVE ARE IN LIEU state. or local laws. regulations or ordinances. OF AND EXCLUDE ALL OTHER WARRANTIES. STATUTORY. EXPRESS, OR 7.4 For separate consideration of $10 and other good and valuable consideration, IMPLIED. INCLUDING WITHOUT LIMITATION ANY WARRANTY OF the receipt and adequacy of which are hereby acknoMedge. CLIENT shall MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WHICH indemnity, defend and hold SIEMENS harmless from and against any damages. ARE HEREBY EXPRESSLY DISCLAIMED. SIEMENS MAKES NO WARRANTY. losses, costs, liabilities or expenses (including attorneys' fees) arising out ol any EXPRESS OR IMPLIED. THAT ANY EQUIPMENT PROVIDED HEREUNDER Oil or Hazardous Materials or from CUENTs breach of. or failure to perform its WILL PREVENT ANY LOSS. OR WILL IN ALL CASES PROVIDE THE obligations under. Sections 7.1.7.2 or 7.3. PROTECTION FOR WHICH IT IS INSTALLED OR INTENDED. THE LIMITED EXPRESS WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A WRFTING SIGNED BY A DULY AUTHORIZED CORPORATE OFFICER OF SIEMENS. 6.4 SIEMENS shall maintain the following insurance while performing the Work Workers' Compensation Statutory EFTA01071794