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Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 1 LIGHTING INSTALLATION CONTRACT This lighting installation contract (“Agreement”) is made this of November, 2010 between: PARTIES JOHNSON CONTROLS, INC. (“JCI”) 10289 West Centennial Road Littleton, CO 80127 and CITY OF MISSOULA, MONTANA (“Customer”) 435 Ryman Street Missoula, MT 59802 RECITALS WHEREAS, Customer desires to retain JCI to perform the work specified in Section 1 below hereto (the “Work”) relating to the installation of the lighting improvement measures (the “Improvement Measures”) described therein; and WHEREAS, Customer is authorized and empowered under applicable Laws (as defined below) and specifically Montana Code Annotated 90-4-1101 et. seq. to enter into this Agreement, and has taken all necessary action under applicable Laws to enter into this Agreement; and WHEREAS, Customer has selected JCI to perform the Work after it determined JCI’s proposal was the most advantageous to Customer in accordance with all applicable procurement and other Laws. NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties agree as follows: ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 2 AGREEMENT 1. SCOPE OF THE AGREEMENT. JCI shall perform the Work set forth below: Central Maintenance Facility Lighting Site Name Area Description Fixture type Existing Lamps Watts Exist Qty Retrofit Description Watts Proposed CENTRAL MAINT. FACILITY STREET DEPT. BLDG 2X4 SURF BOX 432S 112 13 Retrofit Fixture w/ F32T8/8XX/XL/HL, 2L-HP-HE- IS & 2x4 White Reflector Kit 74 CENTRAL MAINT. FACILITY STREET DEPT. BLDG 2X2 SURF BOX 232U6S 59 6 Retrofit Fixture w/ F17T8/8XX/XL/HL, 3L-STND- HE-IS & 2x2 White Refl Kit 44 CENTRAL MAINT. FACILITY VEHICLE MAINT BLDG HOOK HIGHBAY 1320PSMH 365 34 Install New 1x4 Lensed High Bay Fixture w/ F54T5HO Lamps & Programmed Start Electronic Ballast (480V) 234 CENTRAL MAINT. FACILITY VEHICLE MAINT BLDG HOOK HIGHBAY 11000MH 1080 7 Install New Lensed 2x4 High Bay w/ 54W T5 Lamps, Programmed Start Ballast (480V) 351 CENTRAL MAINT. FACILITY VEHICLE MAINT BLDG 2X4 CABLE HIGHBAY 654T5 351 0 No Retrofit at this time 351 CENTRAL MAINT. FACILITY VEHICLE MAINT BLDG HOOK HIGHBAY 1400MH 458 7 Install New 1x4 Lensed High Bay Fixture w/ F54T5HO Lamps & Programmed Start Electronic Ballast (480V) 234 CENTRAL MAINT. FACILITY VEHICLE MAINT BLDG 1X4 REC TROF 334E 115 12 Retrofit Fixture w/ F32T8/8XX/XL/HL & 3L-LP-HE- IS (difficult Install) 73 CENTRAL MAINT. FACILITY VEHICLE MAINT BLDG WM WALLPACK 1400MH 458 4 Retrofit fixture w/ 320W Pulse Start Metal Halide Lamp & Ballast (480V) 365 TOTAL 2998 83 1726 ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 3 Parks-Exterior Lighting Site Name Area Description Fixture type Existing Lamps Watts Exist Qty Retrofit Description Watts Proposed PARKS-EXTERIOR OSRPEY STADIUM TRIAL 16'' POLE GLOBE 1100MH 128 9 Retrofit existing fixture w/ custom 65W Induction kit for 68 PARKS-EXTERIOR MCCORMICK TRAIL 16'' POLE GLOBE 1100MH 128 16 Retrofit existing fixture w/ custom 65W Induction kit for 68 PARKS-EXTERIOR MOBASH SKATE PARK TRAIL 16'' POLE GLOBE 1100MH 128 1 Retrofit existing fixture w/ custom 65W Induction kit for 68 PARKS-EXTERIOR MOBASH SKATE PARK 1 POLE FLOOD 1250MH 295 4 Retrofit fixture w/ 200W Pulse Start Metal Halide Lamp & Ballast 232 PARKS-EXTERIOR MOBASH SKATE PARK 1 POLE FLOOD 1250MH 295 6 Retrofit fixture w/ 200W Pulse Start Metal Halide Lamp & Ballast 232 PARKS-EXTERIOR FIRE DEPT BOAT HOUSE 1 POLE BARNYARD 1175MV 205 1 Install New Barnyard fixture w/ 70W Metal Halide 95 PARKS-EXTERIOR MCCORMICK PARK ROPES COURSE 1 POLE COBRAHEAD 1250MH 295 1 Install New Cobra Head fixture w/ 120W Induction Lamp 126 PARKS-EXTERIOR MCCORMICK PARK PARKING LOT 1 POLE SHOEBOX 1175MH 215 4 Install new Shoe Box Fixture w/ 80W Induction 84 PARKS-EXTERIOR MCCORMICK PARK PARKING LOT 1 POLE COBRAHEAD 1250MH 295 3 Install New Cobra Head fixture w/ 120W Induction Lamp 126 PARKS-EXTERIOR CFN TRAIL 16'' POLE GLOBE 1100MH 128 18 Retrofit existing fixture w/ custom 65W Induction kit for 68 PARKS-EXTERIOR TOOLE TRIAL 16'' POLE GLOBE 1100MH 128 28 Retrofit existing fixture w/ custom 65W Induction kit for 68 PARKS-EXTERIOR GOLDSMITHS TRAIL 16'' POLE GLOBE 1100MH 128 3 Retrofit existing fixture w/ custom 65W Induction kit for 68 PARKS-EXTERIOR KIWANIS PARK 16'' POLE GLOBE 1100MH 128 12 Retrofit existing fixture w/ custom 65W Induction kit for 68 PARKS-EXTERIOR BESS RTEED PARK 16'' POLE GLOBE 1100MH 128 10 Retrofit existing fixture w/ custom 65W Induction kit for 68 PARKS-EXTERIOR CARAS TRAIL/ PARK 16'' POLE GLOBE 1100MH 128 22 Retrofit existing fixture w/ custom 65W Induction kit for 68 PARKS-EXTERIOR FOX TRAIL 16'' POLE GLOBE 1100MH 128 6 Retrofit existing fixture w/ custom 65W Induction kit for 68 PARKS-EXTERIOR ROSE PARK 1 POLE CHINAHAT 1250MH 295 3 Retrofit fixture w/ 200W Pulse Start Metal Halide Lamp & Ballast 232 PARKS-EXTERIOR CAT TAIL CORNER 1 POLE ACORN 1175MH 215 9 Install New Acorn fixture w/ 80W Induction Lamp 84 TOTAL 7191 179 5171 ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 4 2. PRICE AND PAYMENT TERMS Customer shall make payments to JCI pursuant to the following. Work. The price to be paid by Customer for the Work shall be $234,246. Payments (including payment for materials delivered to JCI and undisputed work performed on and off-site) shall be made to JCI as follows: Payment No. Payment Month Amount 1 Nov-10 $70,274 2 Dec-10 $46,849 3 Jan-11 $105,411 4 Feb-11 $11,712 5 6 7 8 9 10 Total $234,246 3. 3. FEDERAL DAVIS BACON WAGES JCI agrees to pay Federal Davis Bacon wages as established by the U.S. Dept. of Labor for all Work performed under this Agreement. Payroll records capable of certification must be maintained by Contractor for at least three years after completion of Work under this Agreement. For purposes of this Agreement, General Decision MT20100033 03/12/2010 MT 33 is to be used and posted in an area available to employees of this project. 4. BUY AMERICAN. JCI agrees to comply with the Buy American provision in the Recovery Act (section 1605 of Title XI), which directs that, subject to certain exceptions, no funds appropriated or otherwise made available for a project may be used for the construction, alteration, or repair of a public building or public work unless all the iron, steel, and manufactured goods used are produced in the United States. 5. NOTICE TO PROCEED; SUBSTANTIAL COMPLETION. This Agreement shall become effective on the date of the last signature on the signature page below and JCI shall commence performance of the Work within ten (10) business days. For purposes of this Agreement, “Substantial Completion” means that JCI has provided ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 5 sufficient materials and services to permit Customer to operate the Improvement Measures. 6. DELAYS AND IMPACTS. If JCI is delayed in the commencement, performance, or completion of the Work by causes beyond its control and without its fault, including but not limited to inability to access property; concealed or unknown conditions encountered at the project, differing from the conditions represented by Customer in the bid documents or otherwise disclosed by Customer to JCI prior to the commencement of the Work; a Force Majeure (as defined below) condition; failure by Customer to perform its obligations under this Agreement; or failure by Customer to cooperate with JCI in the timely completion of the Work, JCI shall provide written notice to Customer of the existence, extent of, and reason for such delays and impacts. Under such circumstances, an equitable adjustment in the time for performance, price and payment terms shall be made. 7. ACCESS. Customer shall provide JCI, its subcontractors, and its agents reasonable and safe access to all facilities and properties in Customer’s control that are subject to the Work. Customer further agrees to assist JCI, its subcontractors, and its agents to gain access to facilities and properties that are not controlled by Customer but are necessary for JCI to complete the Work. An equitable adjustment in the time for performance, price and payment terms shall be made as a result of any failure to grant such access. 8. PERMITS, TAXES, AND FEES. Unless otherwise specified, JCI shall be responsible for obtaining all building permits, and contractor registration, required for it to perform the Work. Unless otherwise specified in Section 1 (Scope of Work), Customer shall be responsible for obtaining all other permits, licenses, approvals, permissions and certifications, including but not limited to, all zoning and land use changes or exceptions required for the provision of the Work or the ownership and use of the Improvement Measures. JCI shall not be obligated to provide any changes to or improvement of the facilities or any portion thereof required under any applicable building, fire, safety, sprinkler or other applicable code, standard, law, regulation, ordinance or other requirement unless the same expressly regulates the installation of the Improvement Measures. Without limiting the foregoing, JCI’s obligations with respect to the Work is not intended to encompass any changes or improvements that relate to any compliance matters (whether known or unknown) that are not directly related to the installation of the Improvement Measures or which have been imposed or enforced because of the occasion or opportunity of review by any governmental authority. Customer shall be responsible for and shall pay when due all assessments, charges and sales, use, property, excise, or other taxes now or hereafter imposed by any governmental body or agency upon the provision of the Work, implementation or presence of the Improvement Measures, the use of the Improvement Measures or payments due to JCI under this Agreement, other than taxes upon the net income of JCI. Customer shall also be responsible for real or personal property taxes relating to equipment or material included in the Improvement Measures. Any fees, taxes, or other lawful charges paid by JCI on account of Customer shall become immediately due from Customer to JCI. ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 6 9. WARRANTY. JCI warrants materials and equipment furnished by JCI will be of good quality and new. JCI will perform the Work in a professional, workman-like manner. JCI will re-perform any non-conforming Work for no charge, as long as Customer provides written notice to JCI within one year following Substantial Completion or such other period identified in Section 1. If JCI installs or furnishes goods or equipment under this Agreement, and such goods or equipment are covered by an end-user warranty from their manufacturer, JCI will transfer the benefits of such warranty to Customer. The foregoing remedy with respect to the Work, together with any remedy provided by goods or equipment manufacturers, shall be Customer’s sole and exclusive remedies for warranty claims. Customer agrees that the one year period following Substantial Completion, or such other period identified in Section 1, shall be a reasonable time for purposes of submitting valid warranty claims with respect to the Work. These exclusive remedies shall not have failed of their essential purpose so long as JCI transfers the benefits of any goods or equipment end-user warranty to Customer and remains willing to re- perform any non-conforming Work for no charge within the one year period described above or such other period identified in Section 1. JCI agrees to assist the Customer in pursuing rights and remedies against the manufacturer and supplier of the equipment under the warranties in the event of equipment malfunction or improper or defective function, and defects in parts and performance. JCI will bear the cost of any damage to the equipment, including damage to the property, caused by JCI. NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE PROVIDED BY JCI. This warranty does not extend to any Work that has been abused, altered, or misused, or repaired by Customer or third parties without the supervision or prior written approval of JCI. Except with respect to goods or equipment manufactured by JCI and furnished to Customer hereunder, for which JCI shall provide its express written manufacturer’s warranty, JCI shall not be considered a merchant or vendor of goods or equipment. 10. CLEANUP. JCI shall keep the premises and the surrounding area free from accumulation of waste materials or rubbish caused by the Work and, upon completion of the Work, JCI shall remove all waste materials, rubbish, tools, construction equipment, machinery, and surplus materials. 11. SAFETY; COMPLIANCE WITH LAWS. JCI shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Work. Each of JCI and Customer shall comply with all applicable laws, ordinances, rules, regulations, and lawful orders of public authorities (collectively, “Laws”) in connection with its performance hereunder. ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 7 12. ASBESTOS-CONTAINING MATERIALS AND OTHER HAZARDOUS MATERIALS. Asbestos-Containing Materials: Neither party desires to or is licensed to undertake direct obligations relating to the identification, abatement, cleanup, control, removal or disposal of asbestos-containing materials Consistent with applicable Laws, Customer shall supply JCI with any information in its possession relating to the presence of ACM in areas where JCI undertakes any Work that may result in the disturbance of ACM. It is JCI’s policy to seek certification for facilities constructed prior to 1982 that no ACM is present, and Customer shall provide such certification for buildings it owns, or aid JCI in obtaining such certification from facility owners in the case of buildings that Customer does not own, if JCI will undertake Work in the facility that could disturb ACM. If either Customer or JCI becomes aware of or suspects the presence of ACM that may be disturbed by JCI’s Work, it shall stop the Work in the affected area and notify the other in writing. As between Customer and JCI, Customer shall be responsible at its sole expense for addressing the potential for or the presence of ACM in conformance with all applicable Laws and addressing the impact of its disturbance before JCI continues with its Work, unless JCI had actual knowledge that ACM was present and acted with intentional disregard of that knowledge, in which case JCI shall be responsible at is sole expense for remediating areas impacted by the disturbance of the ACM, and (ii) Customer shall resume its responsibilities for the ACM after JCI’s remediation has been completed. Other Hazardous Materials: JCI shall be responsible for removing or disposing of any Hazardous Materials (as defined below) that it uses in providing Work (“JCI Hazardous Materials”) and for the remediation of any areas impacted by the release of JCI Hazardous Materials. For other Hazardous Materials that may be otherwise present at Customer’s facilities (“Non-JCI Hazardous Materials”), Customer shall supply JCI with any information in its possession relating to the presence of such materials if their presence may affect JCI’s performance of the Work. If either Customer or JCI becomes aware of or suspects the presence of Non-JCI Hazardous Materials that may interfere with JCI’s Work, it shall stop the Work in the affected area and notify the other. As between Customer and JCI, Customer shall be responsible at its sole expense for removing and disposing of Non-JCI Hazardous Materials from its facilities and the remediation of any areas impacted by the release of Non-JCI Hazardous Materials, unless JCI had actual knowledge that Non-JCI Hazardous Materials were present and acted with intentional disregard of that knowledge, in which case JCI shall be responsible at its sole expense for the remediation of any areas impacted by its release of such Non-JCI Hazardous Materials, and (ii) Customer shall remain responsible at its sole expense for the removal of Non-JCI Hazardous Materials that have not been released and for releases not resulting from JCI’s performance of the Work. For purposes of this Agreement, “Hazardous Materials” means any material or substance that, whether ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 8 by its nature or use, is now or hereafter defined or regulated as a hazardous waste, hazardous substance, pollutant or contaminant under applicable Law relating to or addressing public or employee health and safety and protection of the environment, or which is toxic, explosive, corrosive, flammable, radioactive, carcinogenic, mutagenic or otherwise hazardous or which is or contains petroleum, gasoline, diesel, fuel, another petroleum hydrocarbon product, or biphenyls. “Hazardous Materials” specifically includes mold and lead-based paint and specifically excludes ACM. JCI shall have no obligations relating to the identification, abatement, cleanup, control, removal, or disposal of mold, regardless of the cause of the mold. Environmental Indemnity: To the fullest extent permitted by Law, Customer shall indemnify and hold harmless JCI and JCI’s subcontractors, and their respective directors, officers, employees, agents, representatives, shareholders, affiliates, and assigns and successors, from and against any and all losses, costs, damages, expenses (including reasonable legal fees and defense costs), claims, causes of action or liability, directly or indirectly, relating to or arising from the Customer’s use, or the storage, release, discharge, handling or presence of ACM, mold (actual or alleged and regardless of the cause of such condition) or Non-JCI Hazardous Materials on, under or about the facilities, or Customer’s failure to comply with this Section 12. 13. CHANGE ORDERS. The parties, without invalidating this Agreement, may request changes in the Work to be performed under this Agreement, consisting of additions, deletions, or other revisions to the Work (“Change Orders”). The price and payment terms, time for performance shall be equitably adjusted in accordance with the Change Order. Such adjustments shall be determined by mutual agreement of the parties. JCI may delay performance of Work affected by the Change Order until adjustments arising out of the Change Order are clarified and agreed upon. Any Change Order must be signed by an authorized representative of each party. If concealed or unknown conditions are encountered at the project, differing from the conditions represented by Customer in the bid documents or otherwise disclosed by Customer to JCI prior to the commencement of the Work, price and payment terms, time for performance shall be equitably adjusted. Claims for equitable adjustment may be asserted in writing within a reasonable time from the date a party becomes aware of a change to the Work by written notification. Failure to assert a request for equitable adjustment, however, shall not constitute a waiver of any rights to seek any equitable adjustment with respect to such change. 14. CUSTOMER FINANCING; TREATMENT; TAXES. The parties acknowledge and agree that JCI is not making any representation or warranty to Customer with respect to matters not expressly addressed in this Agreement, including, but not limited to: Customer’s ability to obtain or make payments on any financing associated with paying for the Improvement Measures, related services, or otherwise; ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 9 Customer’s proper legal, tax, accounting, or credit rating agency treatment relating to this Agreement; and The necessity of Customer to raise taxes or seek additional funding for any purpose. Customer is solely responsible for its obligations and determinations with respect to the foregoing matters. In addition, the parties acknowledge and agree that Customer shall be responsible to comply, at its cost and expense, with all Laws that may be applicable to it relating to performance contracting, including, without limitation, any requirements relating to the procurement of goods and/or services and any legal, accounting, or engineering opinions or reviews required or obtained in connection with this Agreement. 15.INSURANCE. JCI shall maintain insurance in amounts no less than those set forth below in full force and effect at all times until the Work has been completed, and shall provide a certificate evidencing such coverage following Customer’s request therefor. COVERAGES LIMITS OF LIABILITY Workmen's Compensation Insurance or self insurance, including Employer's Liability Statutory Commercial General Liability Insurance $5,000,000 Per Occurrence $5,000,000 Aggregate Comprehensive Automobile Liability Insurance $5,000,000 Combined Single Limit The above limits may be obtained through primary and excess policies, and may be subject to self-insured retentions. Customer shall be responsible for obtaining builder's risk insurance coverage for the Improvement Measures and shall at all times be responsible for any loss or casualty to the Improvement Measures. Customer shall also maintain insurance coverage, of the types and in the amounts customary for the conduct of its business, throughout the term of this Agreement. 16. INDEMNIFICATION. To the fullest extent permitted by applicable Law, each party shall indemnify the other with respect to any third party claim alleging bodily injury, including death, or property damage to the extent such injury or damage is caused by the negligence or willful misconduct of the indemnifying party. A condition precedent to any obligation of a party to indemnify the other pursuant to this Section 14 shall be for the indemnified party to advise the indemnifying party of the claim pursuant to the notice provision of this Agreement. 17. LIMITATION OF LIABILITY. NEITHER JCI NOR CUSTOMER WILL BE RESPONSIBLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE, PUNITIVE, EXEMPLARY, LOSS OF PROFITS OR REVENUE, LOSS OF USE, OR SIMILAR DAMAGES, REGARDLESS OF HOW ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 10 CHARACTERIZED AND REGARDLESS OF A PARTY HAVING BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSSES OR RELIEF, ARISING IN ANY MANNER FROM THIS AGREEMENT, THE WORK, THE IMPROVEMENT MEASURES, THE PREMISES, OR OTHERWISE. JCI'S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL IN NO EVENT EXCEED THREE TIMES THE CONTRACT PRICE SET FORTH UNDER SECTION 2 ABOVE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS BY THIRD PARTIES. If this Agreement covers fire safety or security equipment, Customer understands that JCI is not an insurer regarding those services, and that JCI shall not be responsible for any damage or loss that may result from fire safety or security equipment that fails to prevent a casualty loss. The foregoing waivers and limitations are fundamental elements of the basis for this Agreement between JCI and Customer, and each party acknowledges that JCI would not be able to provide the work and services contemplated by this Agreement on an economic basis in the absence of such waivers and limitations, and would not have entered into this Agreement without such waivers and limitations. 18. FORCE MAJEURE. Neither party will be responsible to the other for damages, loss, injury, or delay caused by conditions that are beyond the reasonable control, and without the intentional misconduct or negligence of that party. Such conditions (each, a “Force Majeure”) include, but are not limited to: acts of God; acts of government agencies; strikes; labor disputes; fires; explosions or other casualties; thefts; vandalism; riots or war; acts of terrorism; electrical power outages; interruptions or degradations in telecommunications, computer, or electronic communications systems; changes in Laws; or unavailability of parts, materials or supplies. 19. JCI'S PROPERTY. All materials furnished or used by JCI personnel and/or JCI subcontractors or agents at the installation site, including documentation, schematics, test equipment, software and associated media remain the exclusive property of JCI or such other third party. Customer agrees not to use such materials for any purpose at any time without the express authorization of JCI. Customer agrees to allow JCI personnel and/or JCI subcontractors or agents to retrieve and to remove all such materials remaining after installation or maintenance operations have been completed. Customer acknowledges that any software furnished in connection with the Work is proprietary and subject to the provisions of any software license agreement associated with such software. 20. DISPUTES. JCI and Customer will attempt to settle any controversy, dispute, difference, or claim between them concerning the performance, enforcement, or interpretation of this Agreement (collectively, “Dispute”) through direct discussion in good faith, but if unsuccessful, will submit any Dispute to non-binding mediation in the nearest major metropolitan area of the state where the project is performed. If the parties are unable to agree on a mediator or a date for mediation, either party may request JAMS, Inc. to appoint a mediator and designate the time and procedure for mediation. Such mediator shall be knowledgeable, to each party’s reasonable ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 11 satisfaction, with respect to matters concerning construction law. If mediation is unsuccessful the parties shall submit such Dispute to arbitration in accordance with Montana law. Neither JCI nor Customer will file a lawsuit against the other until not less than sixty (60) days after the mediation referred to herein has occurred, unless one or both parties is genuinely and reasonably concerned that any applicable statute of limitations is on the verge of expiring. 21. GOVERNING LAW. This Agreement and the construction and enforceability thereof shall be interpreted in accordance with the laws of the state of Montana. 22. CONSENTS; APPROVALS; COOPERATION. Whenever Customer’s consent, approval, satisfaction or determination shall be required or permitted under this Agreement, and this Agreement does not expressly state that Customer may act in its sole discretion, such consent, approval, satisfaction or determination shall not be unreasonably withheld, qualified, conditioned or delayed, whether or not such a “reasonableness” standard is expressly stated in this Agreement. Whenever one party’s cooperation is required by the other in order to carry out the obligations of the other pursuant to this Agreement, the parties agree they shall act in good faith and reasonably in so cooperating with the other and/or the other’s designated representatives or assignees or subcontractors. Customer shall furnish decisions, information, and approvals required by this Agreement in a timely manner so as not to delay the performance of the Work. 23. FURTHER ASSURANCES. The parties shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the provisions of this Agreement. 24. INDEPENDENT CONTRACTOR. The relationship of the parties hereunder shall be that of independent contractors. Nothing in this Agreement shall be deemed to create a partnership, joint venture, fiduciary, or similar relationship between the parties. 25. POWER AND AUTHORITY. Each party represents and warrants to the other that it has all requisite power and authority to execute and deliver this Agreement and perform its obligations hereunder, (ii) all corporate, board, body politic, or other approvals necessary for its execution, delivery, and performance of this Agreement have been or will be obtained, and (iii) this Agreement constitutes its legal, valid, and binding obligation. 26. SEVERABILITY. In the event that any clause, provision, or portion of this Agreement or any part thereof shall be declared invalid, void, or unenforceable by any court having jurisdiction, such invalidity shall not affect the validity or enforceability of the remaining portions of this Agreement unless the result would be manifestly inequitable or materially impair the benefits intended to inure to either party under this Agreement. ---PAGE BREAK--- Johnson Controls, Inc. – Proprietary © 2010 Johnson Controls, Inc. 12 27. COMPLETE AGREEMENT. It is understood and agreed that this Agreement contains the entire agreement between the parties relating to all issues involving the subject matter of this Agreement. No binding understandings, statements, promises or inducements contrary to this Agreement exist. This Agreement supersedes and cancels all previous agreements, negotiations, communications, commitments and understandings with respect to the subject matter hereof, whether made orally or in writing. Each of the parties to this Agreement expressly warrants and represents to the other that no promise or agreement which is not herein expressed has been made to the other, and that neither party is relying upon any statement or representation of the other that is not expressly set forth in this Agreement. Each party hereto is relying exclusively on the terms of this Agreement, its own judgment, and the advice of its own legal counsel and/or other advisors in entering into this Agreement. Customer acknowledges and agrees that any purchase order issued by Customer associated with this Agreement is intended only to establish payment authority for Customer’s internal accounting purposes. No purchase order shall be considered a counteroffer, amendment, modification, or other revision to the terms of this Agreement. 28. HEADINGS. The captions and titles in this Agreement are for convenience only and shall not affect the interpretation or meaning of this Agreement. 29. COUNTERPARTS. This Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one single agreement between the parties. 30. NOTICES. All notices or communications related to this Agreement shall be in writing and shall be deemed served if and when sent by facsimile or mailed by certified or registered mail: to Johnson Controls, Inc. at the address listed on the first page of this Agreement, ATTN: Regional Solutions Manager, with a copy to Johnson Controls, Inc., ATTN: General Counsel – Building Efficiency Americas, 507 East Michigan Street, Milwaukee, Wisconsin, 53202: and to Customer at the address listed on the first page of this Agreement. CITY OF MISSOULA, MONTANA JOHNSON CONTROLS, INC. Signature: Signature: Printed Name: Printed Title: Title: Date: Date: