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HomeMy WebLinkAboutHawthorne Machinery Co; 2020-02-12; PSA20-1009UTILPSA20-1009UTIL City Attorney Approved Version 1/30/13 1 AMENDMENT NO. 1 TO EXTEND AGREEMENT FOR GENERATOR MAINTENANCE SERVICES FOR SEWER LIFT STATIONS HAWTHORNE MACHINERY CO. This Amendment No. 1 is entered into and effective as of the _______ day of ___________________________, 2021, extending and amending the agreement dated February 12, 2020, (the “Agreement”) by and between the City of Carlsbad, a municipal corporation, ("City"), and Hawthorne Machinery Co., (“Contractor") (collectively, the “Parties”) for generator maintenance services for sewer lift stations. RECITALS A. The Parties desire to extend and fund the Agreement for a period of one (1) year; and NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on February 11, 2022 on a time and materials basis not-to-exceed thirty-five thousand dollars ($35,000). 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. 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. /// /// /// /// /// /// /// /// /// DocuSign Envelope ID: 0F38671A-F966-4EAE-852D-2A64110683C2 January 5th PSA20-1009UTIL City Attorney Approved Version 1/30/13 2 4. 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 Hawthorne Machinery Co., a California corporation CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) Vicki V. Quiram, Utilities Director as authorized by the City Manager Jeffrey Boman, General Counsel (print name/title) By: (sign here) (print name/title) 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, 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: CELIA A. BREWER, City Attorney BY: _____________________________ Assistant City Attorney DocuSign Envelope ID: 0F38671A-F966-4EAE-852D-2A64110683C2 The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $ UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS PERSTATUTE OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe underDESCRIPTION OF OPERATIONS below (Mandatory in NH)OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNEDAUTOSAUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: INSURED PHONE(A/C, No, Ext): PRODUCER ADDRESS:E-MAIL FAX(A/C, No): CONTACTNAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 1/31/2020 J Smith Lanier & Co of OpelikaP. O. BOX 828Opelika AL 36803 Erica Sweatt 334-749-3401 334-745-8785 esweatt@jsmithlanier.com Great American Insurance Company 16691 Zurich American Insurance Company 16535Hawthorne Machinery Co.Attn: Steve Hollingsworth16945 Camino San BernardoSan Diego CA 92127 1610200445 B X 1,000,000 X 500,000 10,000 1,000,000 2,000,000 X Y Y GLO292517013 2/1/2020 2/1/2021 2,000,000 B 2,000,000 X XX Y Y BAP292517113 2/1/2020 2/1/2021 A X X 5,000,000 10,000 Y Y TUU777952314 X 5,000,000 2/1/2020 2/1/2021 B N Y WC292516913 2/1/2020 2/1/2021 X 1,000,000 1,000,000 1,000,000 B Garagekeepers Liability BAP292517113 2/1/2020 2/1/2021 $1,000,000 Per Loc.Direct/Primary General Liability (for ongoing and completed operations via forms CG20100413 and CG20370413) and Auto Liability (per CA20481013) Additional InsuredStatus is granted to the City of Carlsbad if required by a written, signed, and dated contract, agreement, or permit. All coverage is subject to the terms,conditions and exclusions contained in the policy form and endorsements. The City of Carlsbad as required by written contract are named additional insured on a primary and non contributory basis on the General Liability andCommercial Auto policies per forms UCA424FCW and UGL1477BCW0413. Waiver of Subrogation is granted to the City of Carlsbad pursuant to writtencontract per forms WC000313, UGL1477BCW0413, and CA04441013. See Attached... City of Carlsbad/CMWDc/o EXIGIS Insurance Compliance ServicesP.O. Box 4668 - ECM #35050New York, NY 10163-4668 ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: 1 1 J Smith Lanier & Co of Opelika Hawthorne Machinery Co.Attn: Steve Hollingsworth16945 Camino San BernardoSan Diego CA 92127 25 CERTIFICATE OF LIABILITY INSURANCE In the event of a cancellation (for any reason other than nonpayment of premium), 30 days notice will be sent to the City of Carlsbad per forms UGL1521ACW,UCA832ACW, and WC990643. Cancellation provision shown is subject to shorter or longer time periods depending on the jurisdiction of, and the reason for, thecancellation. Garage Liability is included under the Zurich Commercial Auto policy with a $1,000,000 limit per location. Umbrella recognizes additional insuredstatuses which are required by written contract and afforded by underlying policies (including but not limited to the General Liability, Commercial Auto, andWorkers Compensation policies) and endorsements, for no broader coverage than is provided by the underlying insurance and limiting coverage to the lesser ofthe following limits: limit specified in form GAI60010697 or limit specified by written contract less the applicable underlying insurance limits. (provides AdditionalInsured per form GAI60791098 and Waiver of Subrogation per form GAI61130697). “Stop Gap” Employers Liability is included under Workers Compensationpolicy per form WC000303C for the states of ND, OH, WA, WY. GLO 2925170 12 GLO 292517013 GLO 2925170 12 GLO 292517013 GLO 2925170 12 GLO 292517013 GLO 2925170 12 02/01/2019 02/01/2020 GLO 292517013 02/01/2020 02/01/2021 GLO 2925170 12 02/01/2019 02/01/2020GLO292517013 02/01/2020 02/01/2021 GLO 2925170 12 02/01/2019 02/01/2020 GLO 292517013 02/01/2020 02/01/2021 GLO 2925170 12 GLO 292517013 BAP 2925171 12 02/01/2019 02/01/2020BAP 292517113 02/01/2020 02/01/2021 BAP 2925171 12 02/01/2019 BAP 292517113 02/01/2020 BAP 2925171 12 02/01/2019 BAP 292517113 02/01/2020 BAP 2925171 12 02/01/2019 02/01/2020BAP 292517113 02/01/2020 02/01/2021 WC 2925169 1202/01/2019 02/01/2020 WC 292516913 PSA20-1009UTIL City Attorney Approved Version 6/12/18 1 AGREEMENT FOR GENERATOR MAINTENANCE SERVICES FOR SEWER LIFT STATIONS SERVICES HAWTHORNE MACHINERY CO. THIS AGREEMENT is made and entered into as of the ______________ day of _________________________, 2020, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and HAWTHORNE MACHINERY CO., a California corporation, ("Contractor"). RECITALS A. City requires the professional services of a consultant that is experienced in generator maintenance. B. Contractor has the necessary experience in providing professional services and advice related to generator maintenance. C. 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 one (1) year from the date first above written. The City Manager may amend the Agreement to extend it for four (4) additional one (1) year periods or parts thereof. 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. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term shall not exceed thirty-five thousand dollars ($35,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed thirty-five thousand dollars ($35,000) per Agreement year. 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". All invoices shall be paid within thirty (30) days of receipt. Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 February 12th PSA20-1009UTIL City Attorney Approved Version 6/12/18 2 6. PREVAILING WAGE RATES Any construction, alteration, demolition, repair, and maintenance work, including work performed during design and preconstruction such as inspection and land surveying work, cumulatively exceeding $1,000 and performed under this Agreement are subject to state prevailing wage laws. 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 the Section 1770, 1773 and 1773.1 of the California Labor Code. Pursuant to Section 1773.2 of the California Labor code, a current copy of applicable wage rates is on file in the office of the City Engineer. Contractor shall not pay less than the said specified prevailing rates of wages to all such workers employed by him or her in the execution of the Agreement. Contractor and any subcontractors shall comply with Section 1776 of the California Labor Code, which generally requires keeping accurate payroll records, verifying and certifying payroll records, and making them available for inspection. Contractor shall require any subcontractors to comply with Section 1776. 7. 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. 8. 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. 9. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 10. 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 attorney’s fees arising out of the performance of the work described herein caused by any negligence, DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 PSA20-1009UTIL City Attorney Approved Version 6/12/18 3 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. 11. 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-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 11.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager 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. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 11.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 11.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 11.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 11.1.4 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. 11.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 11.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 PSA20-1009UTIL City Attorney Approved Version 6/12/18 4 11.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 11.2.3 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. 11.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 11.4 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. 11.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 12. 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. 13. 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. 14. 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. 15. 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. 16. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 PSA20-1009UTIL City Attorney Approved Version 6/12/18 5 For City For Contractor Name Jesse Castaneda Name Elizabeth Abeyta Title Utilities Supervisor Title Project Manager Department Public Works Address 16945 Camino San Bernardo City of Carlsbad San Diego, CA 92127 Address 1635 Faraday Ave Phone No. 858-376-6857 or 858-583-0027 Carlsbad, CA 92008 Email efabeyta@hawthornecat.com Phone No. 760-438-2722 x7137 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. 17. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. Yes No 18. 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 whose services are required by this Agreement. 19. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 20. 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 (10) 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. The City Manager 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 will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 PSA20-1009UTIL City Attorney Approved Version 6/12/18 6 21. 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. 22. 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. 23. 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. 24. 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. DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 PSA20-1009UTIL City Attorney Approved Version 6/12/18 7 25. 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 nor 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. 26. 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. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 PSA20-1009UTIL City Attorney Approved Version 6/12/18 8 27.AUTHORITYThe 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 authorityto bind Contractor to the terms and conditions of this Agreement. This Agreement may beexecuted in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Copies and "pdfs” shall be considered theequivalent of original signatures. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California HAWTHORNE MACHINERY CO., a California corporation By: By: (sign here) Vicki V. Quiram, Utilities Director as authorized by the City Manager Jeffrey Boman, General Counsel (print name/title) By: (sign here) (print name/title) 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: CELIA A. BREWER, City Attorney BY: _____________________________ DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 Ron KempAssistant City Attorney PSA20-1009UTIL City Attorney Approved Version 6/12/18 9 EXHIBIT “A” SCOPE OF SERVICES DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 EXHIBIT A 10 SCOPE OF SERVICES AND FEE SCHEDULE Contractor to provide quarterly invoices which list each segment description serviced as shown below, the date the work was performed, and the costs associated with that service as indicated in the table below. The frequency of generator services must be followed in the table below. All costs beyond a segment’s frequency and stated quarterly amount are not authorized. For each segment/site listed in the scope, the Hawthorne technician performing the work must provide a paper copy to the Utilities Wastewater Operators on the day of service, identifying the specific site by address and all work performed. Additionally, Hawthorne will provide the above documentation electronically via email to the Utilities Wastewater project manager within 2-3 days after the work is completed. This documentation is necessary to meet an APCD requirement. Segment No. Description of Segment Quarterly Amount Quantity Annual Total Amount 1 2197 Cannon Road (Make: Kohler/Volvo / Model: TAD1241 / Serial: 2042544) $908.19 4 ea $3,632.78 2 4020 Carlsbad Blvd (Make: Olympian/Perkins / Model: YPKXL02:7 / Serial: LP50740:03565886 $844.90 ea 4 ea $3,379.59 3 2359 Carlsbad Blvd (Make: Kohler/John Deere / Model: 60ROZJ71 / Serial: TO4039T369894 $861.86 4 ea $3,447.47 4 4155 Harrison St. (Make: Kohler/John Deere / Model: 6081TF001 / Serial: RG608IT010644 $849.66 4 ea $3,398.66 5 613 San Shell Ave. (Make: Kohler/John Deere / Model: 3029TE150 / Serial: PE3029T210258) $839.09 4 ea $613.00 6 2425 Poinsettia Ln. (Make: Caterpillar / Model: 3306 / Serial: 9NR02716) $851.03 4 ea $3,404.15 7 7382 Gabbano Ln. (Make: Caterpillar/Olympian / Model: 3208 / Serial: 5YF02862) $864.75 4 ea $3,459.03 DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 EXHIBIT A 11 Segment No. Description of Segment Quarterly Amount Quantity Annual Total Amount 8 501 Knots Ln. (Make: Generac / Model: A7285-62070-00-97263 / Serial: 96954) $836.91 4 ea $3,347.65 9 5812 El Fuerte St. (Make: Cummins / Model: OSL9-62 / Serial: 4657874) $891.71 4 ea $3,566.85 *SUBTOTAL $30,992.54 **Extra Work – any generator services or additional work needed beyond this listed scope of work requires prior approval by Utilities project manager $4,007.46 *TOTAL NOT-TO-EXCEED ANNUAL AMOUNT $35,000 * Includes taxes, fees, expenses and all other costs **Extra Work – extra work requires prior approval by email from the Utilities Wastewater project manager and/or his designee before any work is done. DocuSign Envelope ID: 2762E00F-607D-4966-B448-E94AC3D3F627 The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) AUTHORIZED REPRESENTATIVE CANCELLATION DATE (MM/DD/YYYY)CERTIFICATE OF LIABILITY INSURANCE LOCJECTPRO-POLICY GEN'L AGGREGATE LIMIT APPLIES PER: OCCURCLAIMS-MADE COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence)$DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $RETENTIONDED CLAIMS-MADE OCCUR $ AGGREGATE $ EACH OCCURRENCE $ UMBRELLA LIAB EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSRLTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)LIMITS PERSTATUTE OTH-ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe underDESCRIPTION OF OPERATIONS below (Mandatory in NH)OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNEDAUTOSAUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: INSURED PHONE(A/C, No, Ext): PRODUCER ADDRESS:E-MAIL FAX(A/C, No): CONTACTNAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 1/31/2020 J Smith Lanier & Co of OpelikaP. O. BOX 828Opelika AL 36803 Erica Sweatt 334-749-3401 334-745-8785 esweatt@jsmithlanier.com Great American Insurance Company 16691 Zurich American Insurance Company 16535Hawthorne Machinery Co.Attn: Steve Hollingsworth16945 Camino San BernardoSan Diego CA 92127 1610200445 B X 1,000,000 X 500,000 10,000 1,000,000 2,000,000 X Y Y GLO292517013 2/1/2020 2/1/2021 2,000,000 B 2,000,000 X XX Y Y BAP292517113 2/1/2020 2/1/2021 A X X 5,000,000 10,000 Y Y TUU777952314 X 5,000,000 2/1/2020 2/1/2021 B N Y WC292516913 2/1/2020 2/1/2021 X 1,000,000 1,000,000 1,000,000 B Garagekeepers Liability BAP292517113 2/1/2020 2/1/2021 $1,000,000 Per Loc.Direct/Primary General Liability (for ongoing and completed operations via forms CG20100413 and CG20370413) and Auto Liability (per CA20481013) Additional InsuredStatus is granted to the City of Carlsbad if required by a written, signed, and dated contract, agreement, or permit. All coverage is subject to the terms,conditions and exclusions contained in the policy form and endorsements. The City of Carlsbad as required by written contract are named additional insured on a primary and non contributory basis on the General Liability andCommercial Auto policies per forms UCA424FCW and UGL1477BCW0413. Waiver of Subrogation is granted to the City of Carlsbad pursuant to writtencontract per forms WC000313, UGL1477BCW0413, and CA04441013. See Attached... City of Carlsbad/CMWDc/o EXIGIS Insurance Compliance ServicesP.O. Box 4668 - ECM #35050New York, NY 10163-4668 ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: 1 1 J Smith Lanier & Co of Opelika Hawthorne Machinery Co.Attn: Steve Hollingsworth16945 Camino San BernardoSan Diego CA 92127 25 CERTIFICATE OF LIABILITY INSURANCE In the event of a cancellation (for any reason other than nonpayment of premium), 30 days notice will be sent to the City of Carlsbad per forms UGL1521ACW,UCA832ACW, and WC990643. Cancellation provision shown is subject to shorter or longer time periods depending on the jurisdiction of, and the reason for, thecancellation. Garage Liability is included under the Zurich Commercial Auto policy with a $1,000,000 limit per location. Umbrella recognizes additional insuredstatuses which are required by written contract and afforded by underlying policies (including but not limited to the General Liability, Commercial Auto, andWorkers Compensation policies) and endorsements, for no broader coverage than is provided by the underlying insurance and limiting coverage to the lesser ofthe following limits: limit specified in form GAI60010697 or limit specified by written contract less the applicable underlying insurance limits. (provides AdditionalInsured per form GAI60791098 and Waiver of Subrogation per form GAI61130697). “Stop Gap” Employers Liability is included under Workers Compensationpolicy per form WC000303C for the states of ND, OH, WA, WY. GLO 2925170 12 GLO 292517013 GLO 2925170 12 GLO 292517013 GLO 2925170 12 GLO 292517013 GLO 2925170 12 02/01/2019 02/01/2020 GLO 292517013 02/01/2020 02/01/2021 GLO 2925170 12 02/01/2019 02/01/2020GLO292517013 02/01/2020 02/01/2021 GLO 2925170 12 02/01/2019 02/01/2020 GLO 292517013 02/01/2020 02/01/2021 GLO 2925170 12 GLO 292517013 BAP 2925171 12 02/01/2019 02/01/2020BAP 292517113 02/01/2020 02/01/2021 BAP 2925171 12 02/01/2019 BAP 292517113 02/01/2020 BAP 2925171 12 02/01/2019 BAP 292517113 02/01/2020 BAP 2925171 12 02/01/2019 02/01/2020BAP 292517113 02/01/2020 02/01/2021 WC 2925169 1202/01/2019 02/01/2020 WC 292516913