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HomeMy WebLinkAboutEnergistics Incorporated; 2008-05-27;AMENDMENT NO. 1 TO AGREEMENT FOR ENGINEERING SERVICES ENERGISTICS, INCORPORATED This Amendment No.1 is entered into and effective as of the "V day of 2008, amending the agreement dated May 27, 2008 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Energistics, Incorporated, a corporation, ("Contractor") (collectively, the "Parties") for the Carlsbad Energy Center Project. RECITALS A. The Parties desire to alter the Agreement's scope of work to add a provision to include the evaluation of potential renewable energy sources and preparation of a feasibility analysis implementing potential renewable energy sources selected by the City. B. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated by this reference as Exhibit "A", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. In addition to those services contained in the Agreement, Contractor will provide those services described in Exhibit "A". 2. City will pay Contractor for all work associated with those services described in Exhibit "A" on a time and materials basis, an additional twenty four thousand dollars ($24,000) shall be authorized and added to the Agreement for a revised total not to exceed amount of ninety nine thousand. ($99.000). Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by November 27, 2009. 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. 6. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. City Attorney Approved Version #05.22.01 (sign here) Darrv\ Franklin. President (print name/title) dfanklin@energistics.biz (e-mail address) (print name/title) (e-mail address) CITY OF CAR corporation of tl By: ATTEST: LORRAINE M. WOOD City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. 'Group A. Chairman, President, or Vice-President "Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD B^BALL, CityAttorne Deputy City Attorney REV. 10/21/2008 EXHIBIT "A" SCOPE OF SERVICES AND FEE 1. Energistics, Inc. will provide a renewable energy analysis for the City identifying various types of potential renewable energy sources. 2. Identify viable renewable energy sources in the City and evaluate the feasibility of implementing them as an alternative source of energy. Provide preliminary cost estimates for construction and estimated pay-back periods based on current utility rate structures. 3. Retain the professional services of the California Center for Sustainable Energy (CCSE) to assist in the preparation of a solar opportunities assessment as shown in Exhibit B. City Attorney Approved Version # 05.22.01 to/ Center for Sustainable Energy ( A!. lrORNIAO/ WORK SCOPE PROPOSAL City of Carlsbad Solar Opportunities Assessment The California Center for Sustainable Energy (CCSE) is pleased to submit this proposal through Energistics, Inc. to the City of Carlsbad (CoC) for a solar opportunities assessment. The proposed work would provide a technical assessment of the potential generation capacity and energy production that would offset most, if not all energy consumed by the CoC. The analysis will also include the economic feasibility of our proposed generation systems within the current regulatory context and a description of potential near-term regulatory changes that would substantively affect the project context. We outline below the Scope of Work and implementation time frame. Photovoltaic Assessment: CCSE will examine the CoC's various energy loads to identify potential photovoltaic location(s), collect information about solar availability and shading at the applicable locations, and develop estimates of system capacity and monthly energy production. Appropriate system sizing recommendations will be based on available area as well as the primary options for equipment and mounting systems. Additionally, CCSE will evaluate any additional loads not captured within the discrete site proposals in order to develop the application of a central solar generation system. The benefit of this configuration would be to take advantage of the new California legislation that will allow municipal governments to aggregate electrical loads from multiple sites in orderto offset their energy costs through net metering by a single generation site (SB 2466). With potential system size and estimated performance in hand, the next step is demonstrating the financial impact. Financial impact is primarily dependent on the potential for utility savings and the desired/available ownership models. CCSE will evaluate proposed system sizes for individual sites as well as the aggregate system to identify the savings potential for each utility account/meter. The most common mode of project financing is currently a Power Purchase Agreement (PPA) that is based on a $/kWh sale price from the developer to the customer. CCSE will identify the optimal purchase price for each proposed solar system. Alternatively, CCSE will outline the various incentives, project costs, and potential for return on investment should CoC choose direct ownership. Finally, the market price referent (MPR) represents the price ceiling at which utilities are willing to purchase energy, with potential "adders" for regulatory compliance benefits, environmental attributes, system benefits and the like. CCSE will provide an analysis based on SDG&Es current renewable resources procurement process. BST ;S-;KK,::;V.W :;;;:••; ;::sv;s: (Page 1 of 4) California Center for Sustainable Energy 8690 Balboa Avenue, Suite 100 San Diego, 92123 8S8.214.7294 www.energycenter.org 1/4'4- Center for Sustainable Energy <:Aj.!r;OSNlACJ/ Regulatory Context Assessment The regulatory landscape for renewable generation, both utility and non-utility, is changing quickly, both due to legislative initiatives and to the increasing pressures on the investor-owned utilities (lOUs) to achieve the State's RPS goals. There is at least one bill of consequence that would dramatically impact the feasibility of a municipality installing renewable energy on one site and applying the net-energy savings from that site to a separate account owned by that municipality. Additionally, there are two bills currently winding their way through the legislative process in Sacramento that would increase the price the lOUs would pay for renewable distributed generation such as that which could be produced by the CoC. Additionally, SDG&E has submitted for consideration by the CPUC an application to develop, own, operate and incorporate into its rate base PV systems in the 1-2MW capacity range; the outcome of the resultant proceeding may impact the optimal direction for CoCs installations. CCSE will provide a summary of the potential changes in the regulatory landscape which would affect the attractiveness of the various CoC solar projects. Work Scope Summary CCSE will provide recommendations for and guidance regarding how best to move forward with the project(s). We suggest a phased approach to this assessment. This approach will capture the impact of the various project components (Maerkle vs. Discrete Sites), thereby increasing the value of the information provided by CCSE to the CoC. Additionally, this approach decreases the cost of these evaluations by allowing CoC the option to select which Discrete Sites they would like to evaluate further. In sum, the final report will cover the items described below for the CoC solar assessments. PHASE 1: Maximum Maerkle and Preliminary Discrete Site Assessments • Estimation/measurement of available solar area at Maerkle Site • Review Discrete Sites and provide a group of potential candidates including system size and area (sqft) needed for proposed system size to CoC • CoC will review sites and provide insight as to the area available for solar at each discrete site • Slope and Shade analysis of Maerkle Site • Technology options assessment of Maerkle Site - fixed and tracking • Determine maximum system capacity for Maerkle Site • Determine maximum system capacity based on average monthly kWh load for CoC refined list of Discrete Sites • Expected monthly system performance of Maerkle Site • Expected average monthly system performance of refined list of Discrete Sites • Tariff options: current situation; changing tariffs; feed-in tariffs • Economic analysis of Maerkle site including estimated project costs, incentive benefits and financial return • Preliminary economic analysis for refined list of Discrete Sites including estimated project costs, incentive benefits and financial return • Comparison of PPA pricing scenarios versus direct ownership • Phase 1 Report with detail of these points and recommendations for next steps (Page 2 of 4) California Center for Sustainable Energy 8690 Balboa Avenue, Suite 100 San Diego, 92123 • 858.244.7294 www.energycenter.org Center for Sustainable Energy PHASE 2: CoC Selected Detailed Discrete Site Assessments • Estimation/measurement of available solar area at the CoC Selected Discrete Sites • Slope and Shade analysis of the CoC Selected Discrete Sites • Technology options assessment of the CoC Selected Discrete Sites -fixed and tracking • Determine maximum system capacity of the CoC Selected Discrete Sites • Expected monthly system performance of the CoC Selected Discrete Sites • Tariff options: current situation; changing tariffs; feed-in tariffs • Economic analysis of the CoC Selected Discrete Sites including estimated project costs, incentives benefits and financial return • Comparison of PPA pricing scenarios versus direct ownership • Summarize findings for each Discrete Site to CoC PHASE 3: Revised Maerkle Site Assessment and Final Report • Revise determination of maximum system capacity for Maerkle Site • Revise expected monthly system performance of Maerkle Site • Revise economic analysis including estimated project costs, incentives benefits and financial return • Revise ranges for sale price per kWh for financial viability under likely scenarios • Revised comparison of PPA approach versus direct ownership • Final report with detail of these points and recommendations for next steps Cost Proposal The scale of this project dictates we propose a Not-To-Exceed budget dependent upon the level of work each site requires once the study begins. CCSE will track and bill Energistics, Inc. based on the hourly rates specified below. Our preliminary analysis of CoCs electric loads show approximately 30 sites as potentially good candidates for a preliminary feasibility analysis in addition to the central site at Carlsbad Municipal Water District property known as Maerkle. Our cost breakdown is as follows: Cost Proposal Breakdown PHASE 1CM UJ V)$CL « LU CO < 0. Preliminary Assessment of 5 Discrete Sites Maerkle Maximum System Size Assessment Phase 1 Report (Maerkle and Preliminary Discrete Sites) Cost/Site $500 $14,000 - Phase 1 Total: Detailed Assessment of CoC Selected Discrete Sites Summarized report for each Selected Discrete Site $3,500 $500 Phase 2 Total: Revised Assessment of Maerkle Site Final Report $3,000 - Phase 3 Total: Total Cost $2,500 $14,000 $1,000 $17,500 TBD TBD TBD $3,000 $1,500 $4,500 JSESKT73B3. (Page 3 of 4) California Center for Sustainable Energy 8690 Balboa Avenue, Suite 100 San Diego, 92123 • 858.244.7294 www.energycenter.org %gSr%^ir • Center for Sustainable Energy Considering PHASE 2 and 3 are contingent upon the results from PHASE 1, the above estimates are for informational purposes only. CCSE will provide firm quotes for PHASE 2 and 3 following a formal request from CoC for this work. Project Schedule CCSE will establish the project schedule with CoC for this proposal during the Energistics, Inc. contracting process. Hourly Rates The following labor rates are applicable for this proposal and valid for up to one year from the date of this proposal unless otherwise defined within a contract between CCSE and Energistics, Inc. CCSE Project Role Director of Programs Project Manager, Sr. Energy Engineer, Solar Specialist Energy Engineer, Climate Change Scientist Sr. Policy Analyst Policy Analyst, Energy Analyst, Project Coordinator Hourly Rate $195 $160 $130 $110 $85 CCSE Staffing CCSE senior staff for this project includes Andrew McAllister, Director of Programs, John Supp, Solar Specialist, Jon Bonk-Vasko, Project Manager, and Jennifer Green, Sr. Policy Analyst. We recommend that CCSE work with CoCs financial experts to ensure the final assessment responds appropriately to the company's needs for informed decision making. Authorized signature: ^jo^l/Jv^-/^^^ Ijate: October 9.2008 . f Andrew McAllister Director of Programs Proposal valid for: 30 days Proposal Accepted PRINTED NAME XX/§IGNATU DATE COMPANY TITLE #»# The California Center for Sustainable Energy {CCSE) is an independent, nonprofit 501(c)(3) corporation that helps residents, businesses and public agencies save energy and generate their own power through a variety of rebate, technical assistance and educational programs. CCSE provides the community with objective information, research, analysis and long-term planning on energy Issues and technologies. Visit www.energycenter.org or call 1 -866-SDENERGY. We are working for a sustainable energy future. ST PY (Page 4 of 4} California Center for Sustainable Energy 8690 Balboa Avenue, Suite 100 San Diego. 92123 • 858.244.7294 www.energycenter.org AGREEMENT FOR ENGINEERING SERVICES ENERGISTICS, INCORPORATED THIS AGREEMENT is made and entered into as of the " day of May, 2008, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Energistics, Incorporated, a corporation, ("Contractor"). RECITALS A. City requires the professional services of an engineer that is experienced in power plant and related infrastructure analysis. B. Contractor has the necessary experience in providing professional services and advice related to power plants and related infrastructure analysis. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of 18 months from the date first above written. The City Manager may amend the Agreement to extend it for three additional one year periods or parts thereof in an amount not to exceed seventy five thousand dollars ($75,000) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. City Attorney Approved Version #11.28.06 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term is a not to exceed amount of seventy five thousand dollars ($75,000), based on a time and materials basis. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. City Attorney Approved Version #11.28.06 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self- administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:V". 10.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 10.1.1 Commercial General Liability Insurance. $1.000.000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. City Attorney Approved Version #11.28.06 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. Workers' Compensation and Employer's Liability insurance will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on General Liability. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. City Attorney Approved Version #11.28.06 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City: For Contractor: Name Jim Elliott Name Darrvl Franklin. PE Title Deputy City Manager Title President - Energistics. Inc Department Administration Address 1361 Shoreline Lane City of Carlsbad Carlsbad. CA 92011 Address 1635 FaradavAve Phone No. 760.476.1870 Carlsbad. CA 92008-7314 Phone No. 760.602.2409 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, City Attorney Approved Version #11.28.06 6 agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the City an affidavit disclosing this interest. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants that the services required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION 19.1 Mediation. In an effort to resolve any conflicts that arise during the design or construction of the project or following the completion of the project, the City and the Contractor agree that all disputes between them arising out of or relating to this Agreement shall be submitted to nonbinding mediation unless the parties mutually agree otherwise. 19.2 Arbitration. In the event the parties to this Agreement are unable to reach a settlement of any dispute arising out of the services under this Agreement, involving an amount of less than 50% of the amount paid to the Contractor for the disputed task, in accordance with Paragraph 19.1 (Mediation), then such disputes shall be settled by non-binding arbitration by an arbitrator to be mutually agreed upon by the parties, and shall proceed in accordance with the rules of the Construction Industry Arbitration Rules of the American Arbitration Association then pertaining. If the parties cannot agree on a single arbitrator, then the arbitrator(s) shall be selected in accordance with the above- referenced rules. City Attorney Approved Version #11.28.06 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.. the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor City Attorney Approved Version #11.28.06 8 acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement or any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. RLSBAD, a municipal if Ike State of California CITY OF corporatio (e-mail address) City Attorney Approved Version If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. *Group A. **Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: ^r-City Attorney deputy City Attorney City Attorney Approved Version #04.01.02 10 EXHIBIT "A" SCOPE OF SERVICES Provide general technical analysis associated with analysis of the Carlsbad Energy Center Project, including power plant engineering, any related infrastructure, and grounding of power lines. Provide general strategic advice associated with the Carlsbad Energy Center Project, including power plant engineering, any related infrastructure, and grounding of power lines. Represent the City of Carlsbad on technical issues at meetings concerning the Carlsbad Energy Center Project at the direction of the City's Municipal Project Manager, this includes travel if needed. Provide technical reviews and reports on an as needed basis as requested by the City of Carlsbad concerning the Carlsbad Energy Center Project. Provide technical analysis of alternate sources of energy to be developed by the City of Carlsbad. Payments to Energistics, Inc will be made on a time and materials basis (see fee schedule below) with monthly invoices being submitted to the City of Carlsbad by Energistics, Inc. FEE SCHEDULE Labor Description Per Hour Technical Project Manager $175.00 Principal Engineer $160.00 Senior Engineer $125.00 Drafting $ 65.00 Materials actual Travel actual City Attorney Approved Version #04.01.02 11