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Home My WebLink About2012-03-13; Municipal Water District; Resolution 143823 24 25 26 27 28 RESOLUTION NO. 1438 EXHIBIT 1 1 2 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE 3 CARLSBAD MUNICIPAL WATER DISTRICT APPROVING TERMINATION OF WATER METER PURCHASE AND 4 REPLACEMENT CONTRACT WITH ATLAS ALLIED, INC. WHEREAS, on April 13, 2010 the Board of Directors of the Carisbad Municipal Water District accepted the bid of $4,386,763 and awarded the Meter Purchase and 5 6 7 Q Replacement contract No. MS1001 to Atias Allied, Inc.; and 9 WHEREAS, this contract was to cover phases one through five of the Automated 10 Meter Reading project; and 11 WHEREAS, CMWD staff is committed to providing high quality, cost effective services. After comprehensive review of the current contract for purchase and replacement of water meters and equipment, District staff has concluded that approaching this program in a different way will provide best value service and reduce costs; and WHEREAS, staff has determined that by performing meter replacements in- 12 13 14 15 16 17 house and competitively bidding for the direct purchase of water meters and equipment 19 from the manufacturer or distributor, will save the District approximately $1.4 million; 20 and 21 WHEREAS, Atias Allied, Inc. has requested in writing that the contract be 22 terminated and has signed a Mutual Rescission of Contract Agreement which to become valid requires authorization of the President or Executive Manager of the CMWD. WHEREAS, staff is recommending that the Meter Purchase and Replacement contract No. MSI001 with Atias Allied, Inc. be terminated. 1 NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water 2 District Board of the City of Carisbad, California, as follows that: 1. The above recitations are true and correct. 2. That the Carisbad Municipal Water District terminates the Meter Purchase and Replacement contract No. MSI001 with Atias Allied, Inc. 3. To become valid the President or Executive Manager of the CMWD is 8 required to sign the Mutual Rescission of Contract Agreement. 9 // 10 // II II II II II II II 11 12 13 14 15 16 17 18 19 // 20 // 21 // 22 23 24 25 26 27 28 // // // // // 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Special Meeting of the Board of Directors of the Carisbad Municipal Water District of the City of Carisbad on the 13**^ day of March, 2012, by the following vote to wit: AYES: Board Members Hall, Kulchin, Blackburn, Douglas and Packard. NOES: None. ABSENT: None. MATT HALL, President ATTEST: AINE M. VVOdD, Secretary (SEAL) MUTUAL RESCISSION OF CONTRACT This Agreement of mutual rescission of a contract made and entered into this /^^av of '-V^gw^^—2012 by and between Atlas Allied, lnc.("Contractor") and the Carisbad Municipal Water District.a Public Agency organized under the Municipal Water Act of 1911 and a Subsidiary District of the City of Carisbad("CMWD''). The parties hereby mutually acknowledge and agree that: On May 10, 2010. the parties entered into a contract forthe installation of water meters ("Installation Contract"). The parties wish to rescind the Installation Contract. CMWD has paid Contractor a total of $1,504,052.60 to date under the Installation Contract. CMWD is currently holding $167,117 in retention funds. Therefore, in consideration ofthe mutual covenants ofthe parties, the parties hereby rescind the Installation Contract effective as of this day first written above. This agreement of mutual rescission shall be binding upon the parties, their successors, assigns and personal representatives. Neither party shall have any further rights or duties thereunder. Release of CIVIWD: Contractor hereby releases and absolutely and forever discharges CMWD and its Board Members, agents, contractors, employees, attorneys, successors and assigns, and each of them, from any and all claims, demands, grievances, liabilities, debts, accounts, obligations, costs, expenses, liens, actions and causes of action, of every kind and nature whatsoever, existing on the effective date of this Agreement, whether known or unknown, anticipated or unanticipated, suspected or unsuspected, which Contractor has or claims to have, now or hereafter, against CMWD or its Board Members, agents, contractors, employees, attomeys, successors and assigns, and each of them, arising out of or in connection with this Agreement and the Installation Contract. Release of Contractor. CMWD hereby releases and absolutely and forever discharges Contractor, employees, attorneys, successors and assigns, and each of them, from any and all claims, demands, grievances, liabilities, debts, accounts, obligations, costs, expenses, liens, actions and causes of action, of every kind and nature whatsoever, existing on the effective date of this Agreement, whether known or unknown, anticipated or unanticipated, suspected or unsuspected, which CMWD has or claims to have, now or hereafter, against Contractor, employees, attorneys, successors and assigns, and each of them, arising out of or in connection with the this Agreement and the Installation Contract. Inapplicability of Civil Code §1542: The parties acknowledge and agree that the releases contained in this Agreement arespecial releases and that §1542 ofthe Civil Code ofthe State of California is not applicable. Ifand to the extent it should be determined that the releases contained in this Ageement arenot special releases, contrary to the parties' acknowledged intention and agreement, each partyspecifically waives the benefit ofthe provisions of §1542 of the Civil Code ofthe State ofCalifornia, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Waiver of Unimown Claims: Each party hereby acknowledges that suchparty is aware that such party may later discover facts in addition to or different from those whichsuch party now knows or believes to be true with respect to the subject matter of thisAgreement and that it is such party's intention, notwithstanding, to fully, finally and forever.settle and release all ofthe claims released by this Agreement, known or unknown, suspectedor unsuspected, which now exist, may exist or previously existed between the parties. Infurtherance of such intention, the releases given in this Agreement shall be and shall remainin effect as a full and completed release, notwithstanding the discovery or existence of any suchadditional or different facts. The parties, further, accept and assume the risk that such facts maytum out to be different from the facts now known or believed to be true by the parties and agreethat the releases given in this Agreement shall remain in all respects effective am shall notbe subject to termination or rescission by reason of any such difference in fact. The parties acknowledge that CMWD will release the remainder of the retention funds under the Installation Contract upon the execution of this Agreement by both parties. This Agreement shall be enforced underthe laws ofthe State of California. This is the entire agreement. CONTRACTOR Atlas-Allied, Inc. By: (sign here) Eva Siciliani V.P. - Treasure (print name/title) By: CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911. and a Subsidiary District of the City of Carisbad By: ATTEST: 4vg^^ Pries. /"Viy/yy /^^'^ 9?? ' (sign here) teR^?AIN^M. WOOD George L. Siciliani President (print name/title) RAINB M. WOOD Secretary APPROVED AS TO FORM: RONALD R. BALL. General Counsel mi Assistant General Cqunsel