Common use of Capital Repairs and Capital Replacements Clause in Contracts

Capital Repairs and Capital Replacements. A. Except for Section 10.1B above, CineLux and Town shall be responsible for the cost of Capital Repairs and Replacements as specified in Exhibit D, Maintenance Matrix. All work performed in connection with Capital Repair or improvements shall be authorized by the Town, agreed to and supervised by CineLux and performed by duly licensed, qualified, contractors agreed to by Town and CineLux. To the extent that any of the work to be performed with Town Funds constitutes a “public works project,” Town shall observe all public bidding requirements associated with such projects as prescribed in Town’s Purchasing Policy and the Town’s Municipal Code, and all applicable local, state, and federal laws, rules and regulations, and policies regarding public works construction shall be adhered to, including but not limited to the payment of prevailing wages. B. Only where reasonable, CineLux and the Town will prioritize the repairs to fixed assets over the replacement of assets. CineLux and Town’s Department of Parks and Public Works staff shall meet to discuss and monitor the Theatre’s Capital Replacement and Repair Plan. C. The Town shall coordinate with CineLux the development of a Capital Replacement and Repair Plan in the following manner: (1) Prior to January 15 of each year, CineLux shall submit to Town’s Director a proposed Capital Repair and Replacement Plan for the Town’s next fiscal year which shall describe the work anticipated to be performed and projected costs. (2) Town shall review the proposed Capital Repair and Replacement Plan in order to determine whether public bidding will be required, to determine the reliability of cost estimates, to review the budget in the proposed Capital Repair and Replacement Plan in light of available funding, and to prioritize proposed expenditures. Town may make any revision to such Capital Repair and Replacement Plan as Town, in its sole reasonable discretion, deems is consistent with both CineLux’s duties and the Applicable Standard and, prior to the start of that next fiscal year, shall approve a Capital Repair and Replacement Plan for that next fiscal year. (3) Once the Capital Repair and Replacement Plan is approved, CineLux shall inform Town in writing of any work of Capital Repair or Capital Replacement to be performed during that fiscal year which is contained in the approved Capital Repair and Replacement Plan prior to commencing such work but in such event no further approvals of such work are required from Town. (4) For items of Capital Repair and Capital Replacement which are not included in the approved Capital Repair and Replacement Plan and do not involve any emergency work, CineLux shall first request Town approval from the Assistant Town Manager or designee for such work prior to commencing such work. The request shall be in writing, describe the work, the justification for it and the projected costs thereof. Within sixty (60) days of the request, Assistant Town Manager or designee shall either approve such request, as may be modified or shall provide a written statement in reasonable detail describing why such request has been denied. Town may make emergency capital repairs and replacements consistent with established Town procedures for handling emergencies. Town shall provide CineLux with the names and telephone numbers of the Town Manager’s Office to contact in the event of an emergency involving the Theatre. If CineLux reasonably determines that any delay would present a material risk to human life or the structural integrity of the Theatre, or would prevent the holding of a scheduled event, CineLux may immediately commence emergency capital repairs and replacements. In all other events, CineLux shall notify the Town Manager’s Office at the emergency number provided to CineLux, and shall either receive the Assistant Town Manager or designee’s prior approval or wait 48 hours without receiving a response before commencing emergency capital repairs and replacements. The Maintenance Matrix, Exhibit D, shall indicate the responsible party for the costs of repairs.

Capital Repairs and Capital Replacements. A. Except for Section 10.1B above, CineLux Cinelux and Town shall be responsible for the cost of Capital Repairs and Replacements as specified in Exhibit D, Maintenance Matrix. All work performed in connection with Capital Repair or improvements shall be authorized by the Town, agreed to and supervised by CineLux Cinelux and performed by duly licensed, qualified, contractors agreed to by Town and CineLuxCinelux. To the extent that any of the work to be performed with Town Funds constitutes a “public works project,” Town shall observe all public bidding requirements associated with such projects as prescribed in Town’s Purchasing Policy and the Town’s Municipal Code, and all applicable local, state, and federal laws, rules and regulations, and policies regarding public works construction shall be adhered to, including but not limited to the payment of prevailing wages. B. Only where reasonable, CineLux Cinelux and the Town will prioritize the repairs to fixed assets over the replacement of assets. CineLux Cinelux and Town’s Department of Parks and Public Works staff shall meet to discuss and monitor the Theatre’s Capital Replacement and Repair Plan. C. The Town shall coordinate with CineLux the development of a Capital Replacement and Repair Plan in the following manner: (1) Prior to January 15 of each year, CineLux Cinelux shall submit to Town’s Director a proposed Capital Repair and Replacement Plan for the Town’s next fiscal year which shall describe the work anticipated to be performed and projected costs. (2) Town shall review the proposed Capital Repair and Replacement Plan in order to determine whether public bidding will be required, to determine the reliability of cost estimates, to review the budget in the proposed Capital Repair and Replacement Plan in light of available funding, and to prioritize proposed expenditures. Town may make any revision to such Capital Repair and Replacement Plan as Town, in its sole reasonable discretion, deems is consistent with both CineLuxCinelux’s duties and the Applicable Standard and, prior to the start of that next fiscal year, shall approve a Capital Repair and Replacement Plan for that next fiscal year. (3) Once the Capital Repair and Replacement Plan is approved, CineLux Cinelux shall inform Town in writing of any work of Capital Repair or Capital Replacement to be performed during that fiscal year which is contained in the approved Capital Repair and Replacement Plan prior to commencing such work but in such event no further approvals of such work are required from Town. (4) For items of Capital Repair and Capital Replacement which are not included in the approved Capital Repair and Replacement Plan and do not involve any emergency work, CineLux Cinelux shall first request Town approval from the Assistant Town Manager or designee for such work prior to commencing such work. The request shall be in writing, describe the work, the justification for it and the projected costs thereof. Within sixty (60) days of the request, Assistant Town Manager or designee shall either approve such request, as may be modified or shall provide a written statement in reasonable detail describing why such request has been denied. Town may make emergency capital repairs and replacements consistent with established Town procedures for handling emergencies. Town shall provide CineLux Cinelux with the names and telephone numbers of the Town Manager’s Office to contact in the event of an emergency involving the Theatre. If CineLux Cinelux reasonably determines that any delay would present a material risk to human life or the structural integrity of the Theatre, or would prevent the holding of a scheduled event, CineLux Cinelux may immediately commence emergency capital repairs and replacements. In all other events, CineLux Cinelux shall notify the Town Manager’s Office at the emergency number provided to CineLuxCinelux, and shall either receive the Assistant Town Manager or designee’s prior approval or wait 48 hours without receiving a response before commencing emergency capital repairs and replacements. The Maintenance Matrix, Exhibit D, shall indicate the responsible party for the costs of repairs.

Capital Repairs and Capital Replacements. A. Except for Section 10.1B above, CineLux SJSU and Town City shall be responsible for the cost of Capital Repairs and Replacements as specified in Exhibit DB, Maintenance Matrix. All work performed in connection with Capital Repair or improvements shall be authorized by the Town, agreed to City and supervised by CineLux SJSU and performed by duly licensed, qualified, contractors agreed to selected by Town and CineLuxCity and/or SJSU. To the extent that any of the work to be performed with Town City Funds constitutes a “public works project,” Town as defined in Section 1217 of the City Charter, City shall observe all public bidding requirements associated with such projects as prescribed in TownSection 1217 of the City’s Purchasing Policy Charter and the TownCity’s Municipal Code, and all applicable local, state, and federal laws, rules and regulations, and policies regarding public works construction shall be adhered to, including but not limited to the payment of prevailing wages. B. Only where reasonable, CineLux SJSU and the Town City will prioritize the repairs to fixed assets over the replacement of assets. CineLux SJSU and Town’s City Department of Parks and Public Works Facilities staff shall meet to discuss and monitor the Theatre’s Capital Replacement and Repair Plan. C. The Town City shall coordinate with CineLux the development of a Capital Replacement and Repair Plan in the following manner: (1) Prior to January 15 of each year, CineLux SJSU shall submit to Town’s Director City a proposed Capital Repair and Replacement Plan for the TownCity’s next fiscal year which shall describe the work anticipated to be performed and projected costs. (2) Town City shall review the proposed Capital Repair and Replacement Plan in order to determine whether public bidding will be required, to determine the reliability of cost estimates, to review the budget in the proposed Capital Repair and Replacement Plan in light of available funding, and to prioritize proposed expenditures. Town City may make any revision to such Capital Repair and Replacement Plan as TownCity, in its sole reasonable discretion, deems is consistent with both CineLuxSJSU’s duties and the Applicable Standard and, prior to the start of that next fiscal year, shall approve a Capital Repair and Replacement Plan for that next fiscal year.. T-29519/1245870_2 11/19/2015 (3) Once the Capital Repair and Replacement Plan is approved, CineLux SJSU shall inform Town City in writing of any work of Capital Repair or Capital Replacement to be performed during that fiscal year which is contained in the approved Capital Repair and Replacement Plan prior to commencing such work but in such event no further approvals of such work are required from TownCity. (4) For items of Capital Repair and Capital Replacement which are not included in the approved Capital Repair and Replacement Plan and do not involve any emergency work, CineLux SJSU shall first request Town City approval from the Assistant Town Manager or designee for such work prior to commencing such work. The request shall be in writing, describe the work, the justification for it and the projected costs thereof. Within sixty (60) days of the request, Assistant Town Manager or designee City shall either approve such request, as may be modified or shall provide a written statement in reasonable detail describing why such request has been denied. Town . (5) City may make emergency capital repairs Emergency Capital Repairs and replacements Replacements consistent with established Town City procedures for handling civil emergencies. Town City shall provide CineLux SJSU with the names and telephone numbers of the Town City Manager’s Office to contact in the event of an emergency involving the Theatre. If CineLux SJSU reasonably determines that any delay would present a material risk to human life or the structural integrity of the Theatre, or would prevent the holding of a scheduled event, CineLux SJSU may immediately commence emergency capital repairs Emergency Capital Repairs and replacementsReplacements. In all other events, CineLux SJSU shall notify the Town City Manager’s Office at the emergency number provided to CineLuxSJSU, and shall either receive the Assistant Town Manager or designeeCity’s prior approval or wait 48 hours without receiving a response before commencing emergency capital repairs Emergency Capital Repairs and replacementsReplacements. The Maintenance Matrix, Exhibit DB, shall indicate provide the responsible party for the costs of repairs.