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HomeMy WebLinkAboutNeal Electric Inc; 2005-06-28;AMENDMENT NO. 2 TO EXTEND AND AMEND AGREEMENT FOR ELECTRICAL MAINTENANCE SERVICES AT THE CARLSBAD WATER RECYCLING FACILITY (NEAL ELECTRIC, INC.) is Amendment No. 2 is entered into and effective as of the o>2 *•** day of , extending and amending the agreement dated June 28, 2005 Cthe "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Neal Electric, Inc., ("Contractor") (collectively, the "Parties") for additional start-up efforts required at the Carlsbad Water Recycling Facility. RECITALS A. On January 11, 2006, the Parties executed Amendment No. 1 to the Agreement to provide ongoing electrical maintenance at the Carlsbad Water Recycling Facility; and B. The Parties desire to alter the Agreement's scope of work to include additional start-up efforts required at the Carlsbad Water Recycling Facility; and C. The Parties desire to extend the Agreement for a period of one (1) year; and D. 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, as may have been amended from time to time, 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 not-to-exceed fifteen thousand dollars ($15,000). Contractor will provide City, on a monthly basis, copies of invoices sufficiently detailed to include hours performed, hourly rates, and related activities and costs for approval by City. 3. Contractor will complete all work described in Exhibit "A" by June 27, 2007. 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. City Attorney Approved Version #05.22.01 6. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR NEAL ELECTRIC, INC. CITY OF CARLSBAD, a municipal corporation of the State of California tByt. VJ^JC /S*Je*~yn^ By:. theSjat (sign here) Clark Thompson, President (print name/title) www.nealelectric.com (e-mail ATTEST: )ity Manager or Mayor L/~^ Assistant City Manager "LORRAtNE M. WOOD City Clerk *»*»" "'"//, /$%£& (sign here Harry Schi'rer, CFO (print name/title) www.nealelectric.com (e-mail address) 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. Chairman, President, or Vice-President 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 R. BALL, City Attorney Deputy City Attorney City Attorney Approved Version #05.22.01 EXHIBIT "A" SCOPE OF SERVICES AND FEE Itemized List of what Contractor will do for City and at what price. DESCRIPTION Incorporate electrical and instrumentation changes that are necessary to accommodate the interim operation of the recycled water pump station prior to the completed recycled water distribution system. TOTAL (NOT-TO-EXCEED) FEE $15,000 $15,000 City Attorney Approved Version #05.22.01 AMENDMENT NO. 1 TO AGREEMENT FOR ELECTRICAL MAINTENANCE SERVICES AT THE CARLSBAD WATER RECYCLING FACILITY (NEAL ELECTRIC, INC.) * This Amendment No.1 is entered into and effective as of the 11 day of , 200b, amending the agreement dated e2805 (the “Agreement”) by and between the City of Carlsbad, a municipal corporation, (“City), and Neal Electric, Inc., (“Contractor”) (collectively, the “Parties”) for additional start-up efforts required at the Carlsbad Water Recycling Facility. RECITALS A. The Parties desire to alter the Agreement’s scope of work to include additional start-up efforts required at the Carlsbad Water Recycling Facility; and B. The Parties have negotiated and agreed to a supplemenbl 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, as may have been amended from time to time, Contractor All 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 not-to-exceed seven thousand five hundred dollars ($7,500). 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 June 27, 2006. 4. Ali 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. 1 City Attorney Approved Version #05.22.01 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. CONTRACTOR NEAL ELECTRIC. INC. CITY OF CARLSBAD, a municipal corporation of the State of California *By: c *- Lv - By: - - - 1 ” ’City Manager e (sign here) /’ Clark Thompson, President ATTEST: (print nam e/titl e) cthompson@nealelectric.com (e-mail address) **By: PAddA (sign here) Cas Weselowski, Secretary (print nam e/ti tl e) cwes~lowski@nealelectric.com (e-mail address) 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@) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: Deputy City Attorne? 2 City Attorney Approved Version #05.22.01 EXHIBIT “A” SCOPE OF SERVICES AND FEE Itemized List of what Contractor will do for City and at what price. I DESCRIPTION FEE I I Additional Extended Services I TOTAL (NOT-TO-EXCEED) City Attorney Approved Version # 05.22.01 3 AGREEMENT FOR ELECTRICAL MAINTENANCE SERVICES AT THE CARLSBAD WATER RECYCLING FACILITY NEAL ELECTRIC, INC. THIS AGREEMENT is made and entered into as of the 28* day of , 206 by and between the CITY OF CARLSBAD, a municipal J3v-e corporation, ("City"), and Neal Electric Inc., a Corporation, ("Contractor"). DEFINITIONS Repair: Authorized service work to equipment and systems required to preserve and protect facilities at the Carlsbad Water Recycling Facility as specified in this Agreement. Installations: Electrical equipment installation and adjustment required to preserve and protect facilities at the Carlsbad Water Recycling Facility as specified in this Agreement. Maintenance: Any routine, recurring, and usual services or preventative maintenance on existing City systems necessary for the protection or preservation of facilities at the Carlsbad Water Recycling Facility as specified in this Agreement. Demolition: The removal of electrical equipment required to preserve and protect facilities at the Carlsbad Water Recycling Facility as specified in this Agreement. Emergency/After Hours Repair: Authorized service or repairs that occur before the hours of 7:OO AM or after 500 PM Monday through Friday or all day Saturday, Sunday or during City holidays. Service Report: Contractor's detailed report in City-approved computer-generated format covering all work performed under this Agreement. Service reports shall be separate documents, listed by facility and shall note all repairs or service work performed, any pertinent electrical diagnostic equipment readings, condition statements and any other pertinent information to aid the City in determining future equipment repairs, maintenance or re placement. RECITALS A. City requires the licensed services of an Electrical Contractor that is experienced in providing routine, recurring and usual commercial electrical maintenance work necessary for the protection and preservation of City owned or maintained properties for their intended purposes. Contractor has the necessary experience in providing electrical services and advice related to providing routine, recurring and usual commercial electrical maintenance work necessary for the protection and preservation of water treatment facilities. Selection of Contractor is expected to achieve the desired results in an expedited fashion. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. 6. C. D. City Attorney Approved Version #04.01.02 1 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, electrical services (“Services”) necessary for maintenance of the Carlsbad Water Recycling Facility. The Contractor will perform electrical maintenance and related services as needed and as authorized on a time and materials basis in accordance with the Agreement’s terms and conditions and in the Contractor’s proposal, included herein as Exhibit “A’. Nothing in this agreement is intended to create an exclusive arrangement between City and Contractor. The City reserves the right to procure commercial electrical maintenance services from other vendors as the City deems appropriate. 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. Contractor shall maintain a C-10 license issued by the California Contractors State License Board throughout the term of this Agreement. 3. TERM The term of this Agreement will be effective for a period of one year from the date first above written. The City Manager may amend the Agreement to extend it for one additional one year periods or parts thereof in an amount not to exceed twenty five thousand dollars ($25,000) 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. Either the City or the Contractor may decline to confirm the renewal of the contract for any reason whatsoever, which shall render the renewal option null and void 4. Time is of the essence for each and every provision of this Agreement. TIME IS OF THE ESSENCE 5. COMPENSATION The Contractor’s electrical maintenance work will be by paid at an hourly rate plus parts as indicated in the Contractor’s proposal. The total fee payable for the Services to be performed during the initial Agreement term will not exceed twenty five thousand dollars ($25,000). 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 the Contractor’s proposal. The Contractor will perform work in accordance with all applicable Carlsbad Municipal Code sections, California building codes, California electrical codes, OSHA standards and any other regulatory requirements. City Attorney Approved Version #04.01.02 2 There will be no additional charges such as travel or trip costs allowed, except for services performed as “After Hours Repair”. Payment for service starts when the technician arrives at the City of Carlsbad owned or maintained properties, and ends at the completion of required service work. Portal to portal payment is not included in this Agreement for services provided during typical business hours. All parts will be newly manufactured replacement parts or an equal approved by the Public Works Supervisor. Pricing to City of Carlsbad will be from the Contractor’s actual invoice from parts suppliers plus markup indicated in the Contractor’s Proposal. Invoices must be submitted with request for payment. The Contractor shall submit invoices to the Engineer by the 5th day of the month for work performed in the previous month under this contract. The Contractor shall provide detailed records of all work performed and include all required reports of systems and/or equipment(s) serviced or repaired. Failure to provide the required documents, invoices, and reports will result in the City of Carlsbad withholding payment to the Contractor until all the required documentation, including supplier invoices for parts, are provided to the City. Certified payroll documents shall be submitted to the City with each billing. If an increase in compensation for service in succeeding option years is requested, the Contractor must provide detailed supporting documentation to justify the requested rate increase. The requested increase will be evaluated by the City, and the City reserves the right to accept or reject the Contractor’s requested compensation increase. This Agreement’s annual compensation terms may be adjusted by a mutually agreeable amount based on and no greater than the San Diego Consumer Price Index changes over the previous year. Requests for price changes must be made by the Contractor in writing sixty (60) days before the end of the then-current agreement year and is subject to negotiation or rejection by the City. 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 this 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. City Attorney Approved Version #04.01.02 3 7. The general prevailing rate of wages for each craft or type of worker needed to execute the contract shall be those as determined by the Director of Industrial Relations pursuant to Sections 1770, 1773 and 1773.1 of the Labor Code. Pursuant to Section 1773.2 of the Labor Code, a current copy of the applicable wage rates is on file in the Office of the City Engineer. The contractor to whom the contract is awarded shall not pay less than the said specified prevailing rates of wages to all workers employed by him or her in execution of the contract. PREVAILING WAGES TO BE PAID 8. TECHNICIANS The Contractor shall Provide a minimum of one (1) dedicated qualified field technician to install maintain and 'repair electrical systems uhlized in the City of Carlsbad. Contractor may provide more than one technician at its option. The If the Contractor wishes to replace or substitute an alternate technician, it must submit a written request to the Public Works Supervisor, Facilities, and include all information requested to insure qualifications and acceptability of the substituted technician. This request must be submitted at least 30 calendar days prior to substitution of any accepted technician to allow the City of Carlsbad to review the request and perform a background check on the substitute technician. 9. 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 the contrary in the subcontract and approved in writing by City. IO. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection specifically noted with the Services. to 11. PARTS The City reserves the right to supply needed parts and equipment to the Contractor for Services. 12. 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 in whole or in part by any willful misconduct or negligent act or omission 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. City Attorney Approved Version #04.01.02 4 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. 13. 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-:VI'. 13.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the 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. 13.1 .I 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. 13.1.2 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. 13.1.3 ANY AUTO COVERAGE Insurance must cover any vehicle used in the performance of the contract, used onsite or offsite, whether owned, non-owned or hired, and whether scheduled or non-scheduled. The auto insurance certificate must state the coverage is for "any auto" and cannot be limited in any manner. 13.1.4 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. City Attorney Approved Version #04.01.02 5 13.1.5 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 13.2.1 The City will be named as an additional insured on General Liability. 13.2.2 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. 13.2.3 insurance and endorsements to City. Prior to City’s execution of this Agreement, Contractor will furnish certificates of 13.3 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. 13.4 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. 14. 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. 15. 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. 16. 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 documents related to services performed 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. City Attorney Approved Version #04.01.02 6 17. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and ._ - Contractor r3inquishes all claims to the copyrights in favor of City. 18. 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 Terry Smith Title Senior Civil Engineer Name Scott Ashton Title Project Manager Dept Engineering City of Carlsbad Address 1635 Faraday Avenue Neal Electric, Inc. Address 13250 Kirkham Way Carlsbad, CA 92008 Phone No. (760) 602-2765 Poway, CA 92064 Phone No. (858) 51 3-2525 19. 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, 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. 20. 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. City Attorney Approved Version #04.01.02 7 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. 21. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 22. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager and/or designee. The City Manager and/or designee will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager and/or designee will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 23. 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. City Attorney Approved Version #04.01.02 8 24. 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. 25. 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 acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 26. JURISDICTION 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. 27. 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. 28. During a state of emergency as determined by the City Council or City Manager including, SERVICES DURING STATE OF EMERGENCY but not limited to states ofemergency defined by Government Code Section 8558, the Contractor agrees to provide the services specified in this Agreement under the terms and conditions herein. City Attorney Approved Version #04.01.02 9 29. ENTIRE AGREEMENT This Agreement, the City’s Request for Proposal, the Contractor’s Proposal, and the Specifications, together with any other written document referred to or contemplated by these documents, 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. 10 City Attorney Approved Version #04.01.02 30. 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. CONTRACTOR NEAL ELECTRIC, INC. CITY OF CARLSBAD, a municipal Clark Thompson, President (print name/title) Rav Richmond. CFO ATTEST: 8- (print namehitie) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a CorDoration, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice- P res i d e n t **Group B. Secret a ry , 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 R. BAL By: 'Deputy City Attorney City Attorney Approved Version iY04.01.02 11 WWW.NEALELECTRIC.COM 858 51 3-2525 LICENSE NUMBER C10-802588 Date: 5-1 6-05 To: Terry Smith City of Carlsbad Re: Fixed Industrial Service Rate Dear Terry, We thank you for your interest in Neal Electric’s Service Department. Our Service Operations group is proud to be considered one of the best in San Diego County. We currently have 24 service trucks in operation, and a Service/Special Projects crew of 70+. Our service personnel will take care of A// your electrical needs including: 0 Installing and certifying your voiceldata system Instrumentation, controls, and PLC programming Splicing and terminating Testing and commissioning electrical distribution up to 15,000-volt sub-station. Neal Electric also offers preventive maintenance Electrical Services. These services will provide you with the most Proactive, Predictive, and State of the Art method of maintaining your entire electrical distribution system. Using infrared imaging and ultrasonic tesfhg we can identify, monitor, and analyze your system. Using the data from our investigation we can then recommend repairs or modifications that will assure you of uninterrupted electrical service. We would be hapw to provide vou with these rates if you are interested in this imDortant service. Below is a list of our service rates, if after reviewing this schedule you have any questions, please do not hesitate to contact me. Schedule of De-mobilized Rates Straight Time (7:OOAM - 3:30PM Monday -Friday) $75.00 Over-Time $1 12.50 Double-Time (Sundays and Holidays) $150.00 $1 00.00 PLC Programming / HMI (normal working hours) Note: All the above rates include all taxes, burden, small tools, truck charge, overhead. and fee (bo hour minimum charge may apply). All emergency and after hour calls will include travel time and are subject to overtime rates. Neal Electric Fax 858 513-9494 13250 Kirkham Way Poway, California 92064 Material Material costs to be charged at wholesale pricing, plus 7,75% safes tax, plus 15 % for overhead and fee. Equipment If required, rented equipment will be priced at the market cost. 1 would also like to point out that Neal has quite a substantial “In-house” equipment yard. Rental rates can be provided to you upon request. I am also providing you with some direct phone numbers for your use in case of an emergency. Please feel free to copy and redistribute the list of phone numbers as you see fit. Neal Electric’s policy to respond to emergency service calls wlthin a 2-hour period. Our response time has typically been less than an hour in most cases however, NEAL ELECTRIC 24 HOUR # (858) 51 3-2525 Name Position Home Phone Cell Phone Cas Wesolowski VP of Operations 058-748-7558 61 9-81 3-7866 Lance Neal Service Manager 619 461-4324 619 571-0607 Larry Osmus Service Supervisor 858 485-9457 858 3823957 If this proposal meets with your approval, please sign below and fax it back to our office so that we can place it in our fifes. Sincerely, Scott Ashton Project Manager sas hton @ nealelectric. corn Approved By; Date Title Tetephone Fed ID # Address Rates are valid for a period of 1 year and may be cancelled/terminated at any time by either party, with or without cause, and without further liability, by the giving of seven days prior written notice. Neal Electric Fax 858 51 3-9494 13250 Kirkham Way, Poway, California 92064