Resolution No. 89771
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RESOLUTION NO. 8977
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
SERVICES AGREEMENT BY AND BETWEEN THE CITY OF
VERNON AND THOMASON MECHANICAL CORPORATION FOR
OPERATIONAL AND MECHANICAL TECHNICAL SUPPORT
SERVICES FOR THE LIGHT & POWER DEPARTMENT
WHEREAS, Thomason Mechanical Corporation ("Thomason") has
provided services to the City of Vernon ("City") in the past relating
to generation units at the Vernon Power Plant and Malburg Generating'
Station, including mechanical preventative maintenance and emergency
services; and
WHEREAS, the Light & Power Department determined that it
needed the services of a vendor to perform on -site operational and
mechanical technical support services (the "Services") for the period
December 1, 2005 through June 30, 2006; and
WHEREAS, as a result of Thomason's past services to the
City, it should be able to provide the Services required by the City
in a more efficient and effective manner; and
WHEREAS, Thomason submitted a proposed rate schedule'to
provide the Services from December 1, 2005 through June 30, 2006; and
WHEREAS, the City determined that Thomason possesses the
technical knowledge and expertise to furnish the Services; and
WHEREAS, on January 24, 2006, the Finance Committee Section
of the City Council considered the request to enter into a contract
with Thomason; and
WHEREAS, the City Council of the City of Vernon has
determined that, pursuant to the provisions of subsection (a) of
Section 2.27 of the Vernon City Code, it is in the public interest and
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necessity to ratify the actions taken by Thomason from December 1,
2005 and to enter into an agreement with Thomason.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves and ratifies the Services provided by Thomason starting
December 1, 2005.
SECTION 3: The City Council of the City of Vernon hereby
approves the Services Agreement with Thomason Mechanical Corporation
for the term from December 1, 2005 through June 30, 2006, in
substantially the same form as the copy which is attached hereto as
Exhibit A and incorporated by reference.
SECTION 4: The City Council of the City of Vernon hereby
authorizes the Mayor and the Acting City Clerk to execute said
Agreement for, and on behalf of, the City of Vernon.
SECTION 5: The City Council of the City of Vernon hereby
directs the Acting City Clerk, or his designee, to mail a fully
executed agreement to:
Thomason Mechanical Corporation
Attn. Ed Davis, Manager
2150 East 37th Street
Vernon, CA 90058
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SECTION 6: The Acting City Clerk of the City of Vernon
shall certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this Ist day of March, 2006.
ATTEST;
BRUCE If. MIALKENHORST, JR.
Acting y Clerk
LEONIS C. BURG, Mayor
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STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of
Vernon, do hereby certify that the foregoing Resolution, being
Resolution No. 8977, was duly adopted by the City Council of the City
of Vernon at a regular meeting of the City Council duly held on
Wednesday, March 1, 2006, and thereafter was duly signed by the Mayor
of the City of Vernon.
BRUCE V. MALKENHORST, JR.
Acting City Clerk
(SEAL)
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EXHIBIT A
SERVICES AGREEMENT
This AGREEMENT ("Agreement") is made, entered into and executed in
duplicate originals, either copy of which may be considered and used as the original
hereof for all purposes, as of this day of March, 2006, in the City of Vernon,
County of Los Angeles, California
BY AND BETWEEN CITY OF VERNON, a municipal
corporation, hereinafter referred to as
the "City"
4305 Santa Fe Avenue
Vernon, California 90058
AND
THOMASON MECHANICAL
CORPORATION, an independent
contractor, hereinafter referred to as the
"Contractor"
2150 E. 37T" Street
Vernon, CA 90058
RECITALS
WHEREAS, the City has determined that it needs to retain the services of
an independent contractor to perform on -site operational and mechanical technical
support services for the Light & Power Department (the "Support Services"); and
WHEREAS, Contractor has prepared a rate schedule for July 1, 2005
through June 30, 2006, for the Support Services, a copy of which is attached hereto as
Exhibit A and incorporated by this reference (the "Proposal"); and
WHEREAS, Contractor represents that it is qualified and capable of
furnishing the labor, materials and expertise necessary to perform the Support Services
that the City requires, as set forth in this Agreement, and is willing to do so on the terms
and conditions set forth below; and
WHEREAS, the Contractor has provided a competitive bid proposal that is
acceptable to the City; and
WHEREAS, the City desires to enter into an agreement with Contractor to
provide the Support Services on a contract basis as defined in the terms and conditions
set forth below.
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NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1. TERM OF CONTRACT
1.01. This Agreement will become effective December 1, 2005, and will continue in
effect until June 30, 2006, or until terminated as provided in this Agreement.
SECTION 2. DEFINITION OF TERMS
2.01. Whenever used in the Agreement, the following terms shall mean:
A. "Agreement" shall mean that formally executed Agreement or Contract
which includes the Contract Documents attached. The Agreement
constitutes the entire agreement between the parties relating to its subject
matter.
B. "City" shall mean the City of Vernon, California, the entity which has
executed the Agreement and, where applicable, its affiliated companies,
and its officers, directors, employees, representatives and agents.
C. "Contractor" shall mean Thomason Mechanical Corporation and where
applicable, its affiliated companies, and its officers, directors, employees,
representatives and agents.
D. "Contract Documents" shall include any inquiry, invitation to bid, or
proposal which may have, but not necessarily, preceded execution of the
Agreement, and including the General Provisions and all exhibits and
schedules attached to the Agreement and all plans and specifications
identified in the Contract Documents.
E. "Contract Price" shall mean the compensation set forth or provided for in
Section 4.01 of this Agreement. Whether it expressly provides for the
reimbursement of costs incurred by Contractor or simply for the payment
of a lump sum of money, it is intended to be the full and complete payment
for satisfactory completion of the Work and, unless otherwise stated, to
cover all costs whether for materials, equipment, tools, labor, services and
taxes and all overhead, rentals and profit or fee, if any.
F. "General Provisions" or "General Conditions" shall mean the General
Provisions as set forth in this Agreement.
G. "Premises" shall mean the physical premises under City's control or
ownership where Work hereunder is to be performed.
H. "Proprietary Information" and "Confidential Information" shall mean all
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information, whether written or oral, which Contractor acquires from,
through or on behalf of City, directly or indirectly, or which arises out of the
Work, concerning the Work or proprietary processes involved in the Work
including, without limitation, information concerning past, present or future
business plans of City, information about the operations of City's
Premises, and other City information or know-how obtained during the
Work, except information falling into any of the following categories:
Information which, at the time of disclosure hereunder, is in the
public domain;
2. Information which, after disclosure hereunder, enters the public
domain, except where such entry is the result of Contractor's or any
entity within Contractor's control breach of this Agreement;
3. Information which, prior to disclosure hereunder, was already in
Contractor's possession without limitation regarding disclosure to
others; or
4. Information which, subsequent to disclosure hereunder, is obtained
by Contractor from a third party who is lawfully in possession of
such information and not subject to a contractual or fiduciary
relationship to City with respect to said information and who does
not require Contractor to agree to refrain from disclosing such
information to others.
5. For information which is required to be disclosed as a result of any
court order or subpoena, the Consultant shall immediately notify the
City of any such required disclosure, shall cooperate with legal
counsel in the appeal or challenge of any such order or subpoena,
and shall only disclose Confidential Information to the extent
required in the order or subpoena.
"Subcontractor" shall mean any first or lower -tier subcontractor and its
employees, representatives, agents, subcontractors or other personnel
who have been approved in the manner required by this Agreement.
J. "Work" or "Support Services" shall mean the work performed by
Contractor and required to be performed from time to time by City under
this Agreement.
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SECTION 3. SUPPORT SERVICES TO BE PERFORMED BY
CONTRACTOR
Specific Services
3.01. Contractor's Support Services shall include, but will not be limited to, performing
on -site operational and mechanical technical support for the Light & Power
Department.
3.02. Contractor shall be responsible for providing all the necessary reports pursuant
to this Agreement.
Change of Services
3.03. City may at any time, by written change order executed by the Director of Light &
Power, make changes only to extend the Work duration and total compensation
of Contractor's Work. Changes in the scope of Work, or duties and obligations,
shall be authorized only by the City.
3.04. City may make "Changes" by increasing, reducing or deviating from the
requirements of the scope of Work. A form of Change Order is set forth in
Exhibit B attached hereto and incorporated by reference.
Timing of Services
3.05. Contractor's Support Services shall commence on December 1, 2005 and award
by the City Council and shall end on June 30, 2006, unless this Agreement is
otherwise terminated according to Section 6 of this Agreement or extended
according to the conditions and terms set forth in this Agreement.
3.06. Time is of the essence for all Work contemplated by this Agreement. Contractor
shall start performing Support Services under this Agreement only after
notification by the City.
Method of Performing Services
3.07. Contractor will determine and is responsible for the method, details, and means
of performing the above -described Support Services.
Status of Contractor
3.08. Contractor enters into this Agreement, and will remain throughout the term of this
Agreement, as an independent contractor. Contractor agrees that it is not and
will not become an employee, partner, agent, or principal of City while this
Agreement is in effect. Contractor agrees it is not entitled to the rights or benefits
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afforded to City's employees, including disability or unemployment insurance,
workers' compensation, medical insurance, sick leave, or any other employment
benefit. Contractor is responsible for providing, at its own expense, disability,
unemployment, and other insurance, worker's compensation, training, permits,
and licenses for itself and for its employees and subcontractors. Contractor shall
have complete and sole control over its employees, the details of the Support
Services and methods by which the Support Services are accomplished, it being
understood that City is interested only in the results to be obtained by Contractor.
3.09. Contractor has no authority to enter contracts or agreements on behalf of City.
This Agreement does not create a partnership or joint venture between the
parties.
Payment of Taxes
3.10. Contractor is responsible for paying when due all income taxes, including
estimated taxes, incurred as a result of the compensation paid by City to the
Contractor for Support Services under this Agreement. Contractor agrees to
indemnify City for any claims, costs, losses, fees, penalties, interest, or damages
suffered by City resulting from Contractor's failure to comply with this provision.
3.11. Payroll taxes including federal, state and local taxes shall not be withheld or paid
by City on behalf of Contractor or for the employees of the Contractor.
Contractor shall not be treated as an employee with respect to the Support
Services performed hereunder for federal or state tax purposes. Contractor shall
be responsible to pay taxes mandated by law.
3.12. Since Contractor is not an employee of City, Contractor is not eligible for and
shall not participate in any employee benefit of City, including pension, health or
other fringe benefits.
SECTION 4. COMPENSATION
4.01. In consideration for the Support Services to be performed by Contractor,
described in Section 3 of this Agreement, City agrees to pay Contractor on a
time -and -material basis for one (1) Working Foreman on site five (5) days a
week, eight (8) hours a day, according to the Rate Schedule set forth in Exhibit
A, a sum not to exceed Ninety Thousand Four Hundred Dollars and No Cents
($90,400.00) plus any applicable taxes (the "Contract Price").
Entire Compensation
4.02. The Contract Price is full and complete compensation, and constitutes the entire
compensation due Contractor for the Support Services and any and all of
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Contractor's obligations hereunder, regardless of difficulty, unforeseen
circumstances, hours worked or equipment, materials or personnel required.
The Contract Price includes without limitation compensation for applicable taxes,
customs duties, fees, overhead, profit, travel time to and from the Premises and
all other direct and indirect costs incurred or to be incurred by Contractor
hereunder. The Contract Price set forth above is not subject to escalation for any
reason except as expressly set forth in this Agreement. No adjustments in
compensation shall be made as a result of changes in the value of any currency.
The Contract Price shall only be adjusted by formal, written Change Order or
amendment to this Agreement.
Payment of Compensation
4.03. For Support Services rendered under Section 3 of this Agreement, City agrees to
pay Contractor the sum set forth in Paragraph 4.01 of this Agreement on
completion of Work and within thirty (30) days of acceptance and approval of an
invoice prepared in accordance with City requirements. Such invoice shall
include, but not be limited to, the identification of hours worked for each individual
and their corresponding billable rate as reflected on the attached Rate Schedule.
4.04. For Support Services rendered under Section 3 of this Agreement, Contractor
shall be entitled to receive monthly payments. Contractor shall submit to City a
monthly invoice and statement of Support Services, prepared in accordance with
Section 4.03 and City requirements, by the fifteenth (15th) of each month, for the
prior calendar month's completed Work. City will make payments to Contractor
within thirty (30) days after acceptance and approval of the invoice received from
Contractor. The City's approval of the invoice shall not be unreasonably
withheld. If a portion of the invoice is in dispute, the undisputed portion shall be
paid within thirty (30) days of receipt.
4.05. Contractor shall be responsible for paying any subcontractors used in the
performance of this Agreement. Subcontractors shall not bill the City directly.
Expenses
4.06. City shall not be liable to Contractor for any expenses paid or incurred by
Contractor, except for those expenses identified in the Proposal. Expenses may
only be billed if advance written approval has been obtained from the City
Administrator.
Compensation for Changes
4.07. The compensation due Contractor, or the credit due City, for changes may not be
established verbally, and shall be established in a written change order signed by
City as described in Sections 3.03 and 3.04 of this Agreement. Compensation
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adjustments in each such change order shall be established by one or more of
the following bases, as determined by City: (a) a lump sum price to be negotiated,
between the parties; or (b) Work unit rates to be negotiated between the parties.
Once established, the amount of the compensation due Contractor or credit due
City for a change shall not be subject to adjustment for any reason, including
changes in the value of any currency.
SECTION 5. OBLIGATIONS OF THE PARTIES
5.01. Contractor is responsible for meeting all conditions of this Agreement for all Work
performed. Substandard Work, as determined solely by the City, shall be redone
at the expense of the Contractor.
Products of Consulting
5.02. All products of consulting Support Services including, but not limited to, manuals,
documents and/or computer software, shall become the property of the City and
shall be delivered to the City before the end of the performance of this
Agreement. Basic notes and sketches, charts, computations and other data shall
be made available to City without restriction or limitation on their use.
Liability Insurance
5.03. Contractor and its subcontractor(s), if any, shall, prior to commencement of any
Work and for the duration of this Agreement, obtain and maintain at its own
expense, those minimum levels of insurance coverage as set forth below. Prior
to commencing Work hereunder, Contractor shall provide the City with proof of
insurance providing and maintaining the coverages and endorsements set forth
below. Said proof of insurance shall also provide that said policy or policies shall
not be canceled or materially reduced in coverage without giving at least thirty
(30) days prior written notice to the City.
5.04. The insurance coverage as listed herein, shall be properly endorsed to include
those contractual obligations which may be identified further within this
Agreement and shall be endorsed to provide City all the rights and privileges of
an additional insured.
5.05. Contractor shall cause its insurers to issue, including but not limited to,
Certificates of Insurance or, upon request, certified copies of the insurance
policies evidencing that the coverages and policy endorsements required under
this Agreement, are maintained in force.
5.06. Contractor shall ensure its subcontractor(s), if any, maintain those insurance
requirements as specified in this Agreement and are endorsed as additional
insured(s) on all required Contractor insurance coverages. Contractor and its
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subcontractor(s), if any, shall maintain in effect the following minimum insurance
coverages on an Occurrence Form Policy:
A. Workers Compensation within the statutory limits, including occupational
illness or disease coverage in accordance with the laws of the nation,
state, territory, or province exercising jurisdiction over Contractor's
employees. Workers Compensation and Employers Liability Insurance
shall have a minimum limit of $1,000,000 per occurrence. Contractor
further agrees to hold harmless and indemnify City for any and all claims
arising out of an injury, disability, or death of any of Contractor's
employees or agents.
B. Comprehensive General Liability Insurance, including, but not limited to,
Contractual Liability, Products and Completed Operations Liability, Broad
Form Property Damage and Bodily Injury Liability, and Explosion,
Collapse and Underground Liability, with a minimum combined single limit
of $2,000,000 per occurrence.
C. Comprehensive Automobile Insurance, including, but not limited to, all
owned, non -owned or hired vehicles with a minimum combined single limit
of $1,000,000 per occurrence for bodily injury and property damage.
D. Excess Liability Insurance with limits of $5,000,000. Such evidence of
insurance can either be through the primary insurance coverages or
through an excess policy. Such insurance shall at all times be on an
occurrence form and provide policy conditions as broad as those required
in the primary insurance.
5.07. Contractor agrees to provide insurance in the amounts and forms specified
above. Contractor shall submit to the City documentation indicating compliance
with these minimum requirements no less than one (1) day prior to the beginning
of performance under this Agreement. Contractor shall not commence
performance of its Work under this Agreement until the above insurance has
been obtained and proof of insurance has been filed with and approved by the
City.
5.08. Contractor shall not permit a subcontractor or vendor to perform work on City
premises unless and until a certificate of insurance is obtained showing that such
subcontractor or vendor has worker's compensation coverage. If Contractor
employs subcontractors as part of the Support Services rendered, Contractor's
protective coverage is required. Contractor may include all subcontractors as
insureds under its own policy or shall furnish separate insurance for each
subcontractor, meeting the requirements set forth above.
Limitation on Contractor's Liability. Neither party shall have any liability for
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consequential damages of any nature whatsoever, however arising. In addition,
the dollar amount of Thomason's total liability under this Contract, shall not
exceed the amounts that may be recovered under the limits of the insurance
required to be maintained by Thomason hereunder, plus Thomason's warranty.
The limitation of the parties' liability shall apply regardless of whether liability is
asserted to arise in contract, negligence or under any other theory of law.
Representations
5.09. To the fullest extent permitted by law, Contractor shall defend, indemnify and
hold harmless City and its elected officials, officers, agents and employees from
all claims, suits, actions, demands, damages, liabilities, expenses,, judgments,
settlements, and penalties, losses, fines, and all costs and expenses incurred in
connection therewith, including reasonable attorney's fees and all costs of
defense, arising out of or attributable to the negligent or wrongful acts of
Contractor or its employees or agents under this Agreement, except to the extent
arising from or caused by the sole negligence or willful misconduct of the City, its
officers, agents or employees. The terms of this indemnity shall survive the
termination of this Agreement.
5.10. Contractor and City represent that each has read and understands the
Agreement and Contract Documents. The Contractor represents it understands
the City's regulations concerning Premises access, badges, parking, security,
safety, fire, prohibited drugs and alcohol, and smoking and other rules, and that
Contractor has visited Premises where the Work is to be done and is familiar with
the local conditions under which it is to be done. Contractor also represents that
it is experienced in performing and competent and qualified to perform the kind of
tasks or assignments included in the Work and employs or has available for
employment in sufficient numbers all unskilled, skilled, administrative,
supervisory, professional and managerial or other personnel required to perform
the Work as required by this Agreement.
5.11. Contractor represents that it has the qualifications and skills necessary to
perform the Support Services under this Agreement in a competent, professional
manner, without the advice or direction of City. This means Contractor is able to
fulfill the requirements of this Agreement. Failure to perform all the Support
Services required under this Agreement constitutes a material breach of the
Agreement. Contractor has complete and sole discretion for the manner in which
the Work under this Agreement will be performed.
5.12. Contractor declares and states that is has complied with and will continue to
comply with all federal, state and local laws regarding business permits and
licenses that may be required to carry out the Support Services to be performed
under this Agreement.
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5.13. Contractor agrees to indemnify, defend, and hold City free and harmless from all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, attorney's fees and
costs, that City may incur as a result of a breach by Contractor of any
representation or provision contained in this Agreement or any negligent or
intentional acts or omissions by Contractor, it subcontractors, agents, and
employees or based on any claim that any software program or other product
used or furnished by Contractor in the performance of this Agreement constitutes
an infringement of any United States patent or copyright.
City shall indemnify, defend, protect and hold Contractor and its officers, agents
and employees, free and harmless from and against claims, demands, losses,
damages, liabilities, fines, charges, penalties, orders, judgments and all costs
and expenses incurred in connection therewith, including reasonable attorney's
fees and costs of defense arising out of the City's negligent performance of
obligations under this Agreement.
5.14. Contractor's rights under this Agreement may not be assigned nor may its duties
be delegated or subcontracted without the prior written consent of City. Any
assignment or delegation or subcontract in violation of this Section shall, at City's
sole discretion, be void. Consent by City shall not relieve Contractor of
responsibility for performance of Contractor's obligations hereunder. City may
assign all or any part of this Agreement at any time effective immediately upon
written notification to Contractor.
5.15. At all times while Work is being performed on the Premises each party shall be
represented thereon by a designated representative. Each party may notify the
other in writing of the identity of such persons from time to time. -
Work Injury
5.16. The treatment and care of injuries sustained by Contractor's employees,
subcontractors, representatives or other personnel shall be and remain the
responsibility of Contractor. City's first aid facilities, if any, however, will be made
available to Contractor's employees in emergency cases which are the direct
result of accidents occurring on the Premises. City shall incur no liability for, and
Contractor hereby agrees to indemnify City against, any causes of action, claim,
liability or costs, including attorney's fees, arising in whole or part out of the
furnishing of such first aid facilities or assistance to Contractor's employees,
subcontractors, representatives or other personnel, or out of the failure to furnish
such facilities or assistance.
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Records, Inspection and Audit
5.17. During the course of Work being performed, Contractor and any of its
subcontractors, shall maintain and retain, not less than three (3) years after
completion thereof, complete and accurate records of the Contractor's costs
which are chargeable to the City under this Agreement. City or its designated,
authorized representatives, shall have the right during this three (3) year period,
upon written reasonable notice, to inspect and audit those records. Such records
to be maintained and retained by the Contractor shall include: (a) payroll record
accounting for the total time distribution of the Contractor's employees working
full or part time on the Work (to permit tracing to payroll payments in cash); (b)
invoices for purchases, receiving and issuing documents, and all the other unit -
inventory records for the Contractor's stores, stock or capital items; (c) paid
invoices and canceled checks for material purchased and for the subcontractor's
and any other third parties' charges; and (d) any other documentation City deems
necessary to support costs and charges under this Agreement.
Corporate Conduct
5.18. Contractor, its employees, agents or representatives shall not offer or give to an
officer, official or employee of City gifts, entertainment, payments, loans or other
gratuities to influence the award of a contract or obtain favorable treatment under
this Agreement or any other contract.
Standard of Care
5.19. Contractor agrees that all Support Services provided will be conducted by the
principal and competent staff members, if any, under the supervision of the
principal, and that Support Services will be performed and rendered diligently.
Contractor represents that it has, or shall secure, at its own expense, all
personnel required to perform Contractor's Support Services under this
Agreement, but at all times shall be responsible for the Support Services of such
personnel. Contractor may not employ any subcontractor without the prior
written approval of the City.
Treatment of Confidential and Proprietary Information
5.20. For ten (10) years after the effective date of this Agreement, Contractor shall
refrain from using any Confidential or Proprietary Information except in
connection with the Work or from disclosing it to any third party other than to
employees of Contractor who require it in performance of the Work and except to
such other third persons as City may authorize in writing. If disclosure to such an
employee or to other third persons is so authorized, Contractor shall enter into
with said party a confidentiality agreement containing provisions with respect to
use and disclosure of Proprietary Information substantially the same as those
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contained in this Agreement.
5.21. Contractor shall take reasonable precautions to safeguard any documents
containing Proprietary Information which City may supply to Contractor
hereunder. Contractor may copy, in whole or part, such documents to the extent
necessary for the performance of the Work, and Contractor shall return to City
upon the completion of the Work or request by City all such documents and
copies.
5.22. Except as expressly permitted by prior written consent of the City, Contractor
and/or its subcontractors shall not disclose, permit the disclosure of, release,
disseminate, or transfer, whether orally or by any other means, any part of such
Confidential Information to any other person or entity. Contractor and/or its
subcontractors shall return any written Confidential Information and all copies
made of such items to the City upon the City's written request, but in any event
not later than the date that Contractor has performed all Work to be performed
pursuant to this Agreement. Contractor hereby agrees that such Confidential
Information and any documents provided may be used by Contractor and/or its
subcontractors only as authorized by the City. Contractor shall include a
provision in its agreements with subcontractors that binds the subcontractors to
this non -disclosure requirement.
5.23. All reports, plans, data, studies, maps, drawings, models, photographs,
documents and other writings prepared by and for Contractor, its officers,
employees, agents and subcontractors in the course of implementing this
Agreement, with the exception of working notes, internal documents and
Confidential Information provided by businesses located in City, shall be
considered the property of City. Contractor shall deliver such documents and
materials to the City as they are generated; however, Contractor may take and
retain copies of said documents and materials that are not Confidential
Information, as desired.
5.24. All reports, information, data and exhibits prepared or assembled by Contractor
in connection with the performance of its Support Services pursuant to this
Agreement are confidential until released by the City to the public and Contractor
agrees that such documents shall not be available to any individual or
organization without the written consent of the City prior to such release.
5.25. No reports, maps, or other documents produced in whole or in part under this
Agreement shall be the subject of an application for copyright by or on behalf of
Contractor.
Compliance with Authority
5.26. Contractor shall comply with all laws, regulations, executive orders and other
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applicable requirements of any governmental agencies having jurisdiction
including the Fair labor Standards Act, the Occupational Safety and Health Act
and all those relating in any way to employment practices and protection of the
environment. Contractor shall not discriminate against any employee or any
applicant for employment for reasons of race, color, creed, religion, sex, sexual
preference, age or national origin.
5.27. Contractor shall make timely payment of all employment taxes and of all social
security and other contributions of every kind required to be made with respect to
or measured by the wages and salaries of persons employed by Contractor.
5.28. Contractor shall indemnify City against, and hold City harmless from, any liability
or loss including liability or loss from fines or penalties arising out of Contractor's
failure to perform the obligations imposed upon it by Sections 5.28 and 5.29 of
the Agreement.
Progress Reports
5.29. Contractor shall meet with City staff, upon City's request, or as needed, in order
to provide reports or information concerning the Support Services being
performed by Contractor under this Agreement.
Contractor's License Classification
5.30 Contractor shall possess all appropriate licenses for the duration of this
Agreement.
SECTION 6. TERMINATION OF AGREEMENT
6.01. Unless otherwise terminated as provided in this Section, this Agreement will end
on June 30, 2006, unless otherwise extended according to the terms and
conditions set forth in this Agreement.
Non -Default Termination
6.02. City, at its sole discretion, may terminate this Agreement upon thirty (30) days
written notice to Contractor and such termination shall be effective in the manner
specified in such notice and shall be without prejudice to any claim that either
party may have against the other. During the thirty (30) day period after such
notice is sent, the parties shall continue to act toward each other in good faith.
6.03. In the event of any such termination, in full and complete settlement for the
termination of the Work, City shall pay Contractor for those Support Services
performed prior to the date of delivery of the termination notice, plus
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compensation for (i) necessary Work performed during the notice period and
authorized in the termination notice, and (ii) all costs reasonably and necessarily
incurred by Contractor directly attributable to termination which could not
reasonably have been avoided and for which Contractor is not otherwise
compensated that are incurred through the date of termination and effectuating
the termination ("Termination Expenses"). Termination Expenses shall not
include lost profits, lost opportunities, consequential damages, or the like. In no
event shall total payment exceed the Contract Price.
Termination on Occurrence of Stated Events
6.04. This Agreement will terminate automatically on the occurrence of any of the
following events:
A. Bankruptcy or insolvency of either party; or
B. Sale of the Contractor; or
C. Assignment of this Agreement by Contractor without City's written
consent.
Termination for Default
6.05. If Contractor defaults in the performance of this Agreement or materially
breaches any of its provisions, City may immediately terminate this Agreement
by giving written notification to Contractor indicating the effective date of such
termination. Termination will take effect immediately upon the date specified in
the notification. For the purposes of this paragraph, material breach of this
Agreement includes, but is not limited to, the following:
A. Contractor's failure to perform, in a manner satisfactory to the City
in its sole discretion, the Support Services specified in Section 3 of
this Agreement; or
B. Contractor's material breach of any obligation or provision
contained in Section 5 of this Agreement.
6.06. The waiver by either party of a breach or default by the other party shall not be
deemed a waiver of any different or later breach; nor shall any delay or omission
by either party to exercise any right it may have hereunder operate as a waiver of
any breach or default of such a right. The failure of either party to this
Agreement to exercise any of its rights under this Agreement does not constitute
a breach thereof and shall not be deemed to be a waiver of such rights or a
waiver of any subsequent breach.
Page 14 of 18
6.07. In the event of any termination of this Agreement or reduction in the scope of the
Work, Contractor shall not be entitled to damages for loss of profits for the
unexecuted portion of the Work or any other damages because of such
termination or reduction.
SECTION 7. GENERAL PROVISIONS
Notices
7.01. All notices, approvals, consents and other communications between the parties
shall be in writing, and shall be sent by fax or by certified mail (return receipt
requested) to the respective addresses set forth below, or at such other address
as may be furnished by either party to the other in writing. Faxed notices,
confirmed by copy thereof, shall be deemed communicated as of the day the
facsimile was sent. Mailed notices will be deemed communicated as of the day
of receipt or the third (3d) day after mailing, whichever occurs first.
Contractor - Thomason City - City of Vernon
Mechanical Corporation Attn: Bruce V. Malkenhorst, Jr.
Attn: Ed Davis, Manager Acting City Clerk
2150 E. 37th Street 4305 Santa Fe Avenue
Vernon, CA 90058 Vernon, CA 90058
Fax: 310-639-8217 Fax: 323-826-1438
Telephone: 310-639-3523 Telephone: 323-583-8811 ext 260
Entire Agreement of the Parties
7.02. This Agreement supercedes any and all agreements, either oral or written,
between the parties with respect to the rendering of Support Services by
Contractor for City and contains all of the representations, covenants, and
agreements between the parties with respect to the subject matter of this
Agreement and the rendering of those Support Services. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not contained in this Agreement, and that no
other agreement, statement, or promise not contained in this Agreement or a
subsequent amendment or change order shall be valid or binding. No
amendment or change in the provisions of this Agreement shall be made, except
in a formal written amendment signed by Contractor and an authorized
representative of the City, or in a written change order. Contractor expressly
waives all claims for compensation based upon quantum merit, implied contract
or oral contract. Each party represents and warrants that it has.read and fully
familiarized itself with this Agreement, and that such party has been fully
authorized to sign this Agreement.
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7.03. This Agreement shall be comprised of these included provisions, together with
Exhibits A and B, which are all attached. In the event of conflict between this
Agreement and any of the exhibits, including the Proposal, this Agreement shall
prevail.
Partial Invalidity
7.04. If any provision of this Agreement is held by a court of competent jurisdiction to
be invalid, void, or unenforceable, the remaining provisions will continue in full
force and effect without being impaired or invalidated in any way.
Law and Arbitration
7.05. All disputes arising out of or related to this Agreement, the conduct of either party
in connection with this Agreement, and the relationship and rights of the parties
in connection with this Agreement, whether characterized as breach of contract,
tort, or otherwise (except for those requesting injunctive relief) shall be
determined by binding arbitration in accordance with the terms of this Section.
The submittal of all matters to arbitration in accordance with the terms of this
Section is the sole and exclusive method, means and procedure to resolve any
and all claims, disputes or disagreements arising under this Agreement, except
for claims by either party which seek injunctive relief, which claims shall be
resolved by suit filed in the Superior Court of Los Angeles County, California, the
decision of which court shall be subject to appeal pursuant to applicable law.
The parties hereby irrevocably waive any and all rights to the contrary and shall
at all times conduct themselves in accordance with the terms of this Section,
relying on arbitration as the sole means of resolution of disputes. Arbitration of
all matters required to be arbitrated hereunder shall take place before a panel of
three retired judges of the Superior Court of the State of California (the
"Arbitrators") under the auspices of Judicial Arbitration & Mediation Services, Inc.
("JAMS"). Such arbitration shall be initiated by the parties, or either of them,
within ten (10) calendar days after either party sends notice of a demand to
arbitrate (the "Arbitration Notice") to the other party and to JAMS. The Arbitration
Notice shall contain a description of the subject matter of the arbitration, the
dispute with respect thereto, the amount involved, if any, and the remedy or
determination sought. Each party shall select a retired judge from the JAMS
panel, and the two selected judges shall mutually agree on the third retired judge
from the JAMS panel. If one of the parties does not select a retired judge from
the JAMS panel within fourteen (14) calendar days after receipt of the Arbitration
Notice, JAMS will select the second judge, and the judge selected by JAMS and
the judge selected by the other party will select the third judge for the panel. The
third judge is to be selected within ten (10) calendar days following the selection
of the first two judges. The three judges will together serve as the Arbitrators.
The arbitration shall be conducted in Los Angeles, California. Any party may be
represented by counsel and/or other authorized representative. In rendering a
Page 16 of 18
decision(s), the Arbitrators shall determine the rights and obligations of the
parties according to the substantive and procedural laws of the State of California
and the terms of this Agreement. The decision of the,Arbitrators shall be based
on the evidence introduced at the hearing and accompanied by a written
statement of decision as to each of the principal controverted issues. The
agreement of two of the three Arbitrators as to the resolution of the dispute shall
be a conclusive resolution. The Arbitrators shall deliver the written decision to
the parties within thirty (30) calendar days following the date of the selection of
the last of the Arbitrators. The decision shall be conclusive and binding, and it
may thereafter be confirmed as a judgment by the Superior Court of the State of
California, subject only to challenge on the grounds set forth in the
California Code of Civil Procedure Section 1286.2. The validity and
enforceability of the decision of the Arbitrators is to be determined exclusively by
the California courts.
Attorney's Fees
7.06. In the event a dispute, claim or litigation arises regarding this Agreement, the
prevailing party shall be entitled to reimbursement for reasonable attorneys' fees
and actual costs, which may be set by the arbitrators or the court in the same
action or in a separate action brought for that purpose, in addition to any other
relief which is obtained.
7.07. Neither party shall be considered in default in any of its obligations under this
Agreement when a failure of performance shall be due to an uncontrollable force.
The term "uncontrollable force" shall mean any cause beyond the control of the
party affected, including, but not restricted to, flood, earthquake, storm, fire,
lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or
municipal action, statute, ordinance, or regulation, embargoes of the United
States Government or any other government, which by exercise of due diligence
such party could not reasonably have been expected to avoid and by exercise of
due diligence has been unable to overcome. Either party rendered unable to
fulfill any of its obligations under this Agreement by reason of an uncontrollable
force shall give written notice within five (5) business days of such fact to the
other party and shall exercise due diligence to remove such inability with all
reasonable dispatch.
7.08. Except as may otherwise be specifically provided herein, this Agreement may be
modified or amended only by a written document executed by both Contractor
and the City and approved as to form by the City Attorney.
7.09. The captions used in this Agreement are for convenience only and shall in no
way define, limit or describe the scope or intent of the Agreement or any part
thereof.
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7.10. City reserves the right to award similar contracts to multiple contractors to ensure
the City has adequate Support Services.
IN WITNESS WHEREOF, the parties have executed the' Agreement on the dates
shown below.
Executed at , California, on
City:
City of Vernon
Name: Leonis C. Malburg, Mayor
Date:
ATTEST:
Bruce V. Malkenhorst, Jr., Acting City Clerk
APPROVED AS TO FORM:
Eric T. Fresch, City Attorney
Contractor:
Thomason Mechanical Corporation
Name:
Title:
Date:
Name:
Title:
Date:
Page 18 of 18
EXHIBIT A
Corporate Office:
No. California Office: Texas Office:
Coletel Office:
2150 E. 37* Street
4595 Pacheco Blvd.
3444 E. Pasadena Frwy,
6261 Prescott Court
Vernon, CA 90058
Martinez, CA 94553
Pasadena, TX 77503
Chino, CA 91710
- -
Tel: (310) 6393523
Tel: (925) 372-4844
Tel: (713) 472-3444
Tel: (909) 590-4500
AM AM W AM '"r11111M
Fax: (310) 639-8217
Fax: (925) 372-4845
Fax (713) 472-8428
Fax (909) 590-4600
Thomason Mechanical
www.thomasonmech.com www.colctel.com
www.woodgroup.com
CA. License 823124
SOUTHERN CALIFORNIA PREVAILING RATE SCHEDULE
JULY 1, 2005 through JUNE 30, 2006
Hourly Rates Straight Time Overtime Double time
Shift Days Nights Days Nights Days Ni is
Journeyman Millwright
64.00
66.00
83.00
85.00
102.00
103.00
Working Foreman
67.00
69.00
87.00
89.00
107.00
109.00
General Foreman
70.00
72.00
91.00
93.00
112.00
114.00
Project Manager
72.00
73.00
93.00
95.00
115.00
117.00
Crane Op & Cert Welder
65.00
67.00
85.00
87.00
104.00
106.00
Apprentice Millwright
57.00
59.00
73.00
75.00
89.00
91.00
THESE RATES INCLUDE WAGES, BENEFITS, PAYROLL TAXES, WORKERS' COMPENSATION, OVERHEAD, ALL TOOLS
EXCEPT SPECIAL TOOLS AND EQUIPMENT, PRODUCT LIABILITY, GENERAL AUTOMOTIVE LIABILITY AND ALL
OTHER REQUIRED INSURANCES, PERMITS AND TAXES. THIS DOES NOT INCLUDE STATE SALES OR USE TAXES.
APPRENTICES MAY BE USED ON ANY CREW CONSISTING OF AT LEAST THREE MEN SUBJECT TO THEIR
QUALIFICATIONS AND AVAILABILITY.
AN ADDITIONAL TEN DOLLARS ($10.00) PER HOUR SHALL BE ADDED TO THE GENERAL FOREMAN'S AND FIELD
FOREMEN'S RATE TO COVER THE COST OF TRUCK, MAINTENANCE AND FUEL.
OVERTIME SHALL BE CHARGED FOR ALL WORK OVER EIGHT (8) HOURS A DAY AND FOR ALL WORK PERFORMED ON
SATURDAYS. iF 4-10 HOUR DAYS ARE WORKED, OVERTIME WILL BE CHARGED FOR ALL WORK PERFORMED AFTER
10 HOURS PER DAY AND ALL HOURS WORKED ON FRIDAYS OR SATURDAYS. THIS ONLY APPLIES WHEN A FULL
(MONDAY-THURSDAY) 4-10 HOUR SCHEDULE IS WORKED, OTHERWISE THE STANDARD OVERTIME RATE AFTER 8
HOURS WOULD APPLY.
DOUBLE TIME SHALL BE CHARGED FOR ALL WORK PERFORMED ON SUNDAYS OR THE FOLLOWING DESIGNATED
HOLIDAYS: NEW YEARS DAY, MARTIN LUTHER KING'S DAY, MEMORIAL DAY, VETERANS DAY, INDEPENDENCE DAY,
LABOR DAY, THANKSGIVING DAY, THE DAY AFTER THANKSGIVING DAY AND CHRISTMAS DAY
TRAVEL TIME FOR EMPLOYEES WILL BE CHARGED ON A STRAIGHT TIME BASIS FOR ACTUAL HOURS TRAVELED IF
APPLICABLE PLUS .35 CENTS PER MILE. TRANSPORTATION, TRAVEL AND HOTEL EXPENSE WILL BE CHARGED AT
COST IF APPLICABLE.
SUBSISTENCE FOR LABOR WILL BE CHARGED AT THE RATE OF $45.00 PER DAY, PER MAN WHEN APPLICABLE
THERE SHALL BE A MINIMUM FOUR-HOUR CHARGE PER PERSON AT THE APPLICABLE RATE FOR SHOW -UP TIME
WHETHER WORK IS PERFORMED OR NOT. THERE SHALL BE A MINIMUM EIGHT -HOUR CHARGE PER PERSON AT THE
APPLICABLE RATE IF THEY WORK MORE THAN FOUR HOURS.
ALL ADDITIONAL MATERIALS, RENTALS, FREIGHT AND 3RD-PARTY SUBCONTRACTS SHALL HAVE A FIFTEEN
PERCENT (15%)HANDLING CHARGE
ALL WORK IS , TO BE PERFORMED USING WOOD GROUP/TMC STANDARD CONTRACT TERMS AND CONDITIONS
UNLESS OTHER MUTUALLY AGREED TO TERMS AND CONDITIONS ARE NEGOTIATED
TERMS: NET 30 DAY
Confidential/Proprietary
Grade all Price for rent
A.O. Richardson
818-242-0888
Day rent
Weekly rent
Monthly Rent /
Sandy
80001-b
$160.00
$680.00
$1,600.00 ✓/
90001-b
$225.00
$900.00
$2,100.00
Quality Equipment
310-677-7600
80001-b.
$295.00
$1,800.00
$2,850.00
John
90001-b
$295.00
$1,800.00
$2,850.00
United Rental
562-663-1500
80001-b
$376.00
$1,400.00
$3,860.00
90001-b
$376.00
$1,400.00
$3,860.00
Skylitf
800-457-6616 90001-b $ 330.00 $ 1,100.00 $ 3,300.00
EXHIBIT B
EXHIBIT B
Form Change Order
CHANGE
Contract Number:
Change Number:
The requirements of the above designated Agreement are changed as follows:
City and Contractor agree that Contractor's compensation shall be adjusted as follows:
City and Contractor agree that Contractor's schedule shall be adjusted as follows;
This adjustment covers the entire compensation for the Change set forth above and includes, but
is not limited to compensation for all engineering, material, equipment, subcontracts, labor,
overhead, profit, changes in scheduling and delays resulting, directly or indirectly, from the
Change, as further detailed in the Agreement.
Contractor (Thomason Mechanical Corporation) City (City of Vernon, California)
By By
Date Date
am
INSTRUCTIONS TO CONTRACTOR
Contract Number:
Instruction to. Contractor Number:
Date:
Specific Instructions to Contractor:
In accordance with the Terms and Conditions of the Agreement, the City classifies `these
instructions as:
Supplementary instructions, not involving a. Change
(Should these instructions be, in the opinion of Contractor, a "Change", written notice thereof
must be given to City within 10 days of the receipt of these instructions. If such written notice is
given, Contractor shall not commence with the work so ordered until written agreement is
reached on the classification of these instructions and on the resulting adjustment in contract
compensation, if any.) In the event that City and Contractor fail to agree on the classification of
these instructions or resulting adjustment in contract compensation, if any, refer to the Changes
Section of the Agreement.
A Change
(Contractor shall, within 10 days bf the receipt of these instructions, furnish City a statement of
its proposal for adjustment in contract compensation occasioned hereby. Contractor shall not
commence with the work so ordered until written agreement is reached on the resulting
adjustment in contract compensation, if any.) In the event that City and Contractor fail to agree
on the classification of these instructions or resulting adjustments in contract compensation , if
any, refer to the Changes Sections of the Agreement.
City Representative
Please acknowledge receipt of this instruction by returning one copy signed in the space
provided below. Contractor's signature hereon does not indicate his acceptance of the
classification assigned hereto by City.
Contractor Representative
Date
Date
KIM
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro—Tem
WM. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
March 21, 2006
4305 Santa Fe Avenue, Vernon, California 90058
telephone (323) 583-8811
Mr. Ed Davis
Thomason Mechanical Corporation
2150 East 37th Street
Vernon, CA 90058
Re: Services Agreement
Dear Mr. Davis:
SOL BENUDIZ
Police Chief
MARK C. WHITWORTH
Acting Fire Chief
LEWIS J. POZZEBON
Director of Environmental Health
S. KEVIN WILSON
Director of Community Services
SHARON L. DUCKWORTH
Acting City Treasurer
Transmitted herewith is a fully executed agreement as referenced
above, approved by City Council on March 1, 2006, through Resolution
No. 8977.
If you have any questions regarding this matter, please call Mr. Donal
O'Callaghan, at (323) 583-8811 ext. 834.
ery truly yours,
Nelly Giron
Deputy City Clerk
NG:dr
c: Donal O'Callaghan
Dolores Jaunzemis
Resolution No. 8977
Agreement File No. 06-023
Wg[ugively wubugtriat
SERVICES AGREEMENT
This AGREEMENT ("Agreement") is made, entered into and executed in
duplicate originals, either copy of which may be considered and used as the original
hereof for all purposes, as of this day of March, 2006, in the City of Vernon,
County of Los Angeles, California
BY AND BETWEEN CITY OF VERNON, a municipal
corporation, hereinafter referred to as
the "City"
4305 Santa Fe Avenue
Vernon, California 90058
AND
THOMASON MECHANICAL
CORPORATION, an independent
contractor, hereinafter referred to as the
"Contractor"
2150 E. 37T" Street
Vernon, CA 90058
RECITALS
WHEREAS, the City has determined that it needs to retain the services of
an independent contractor to perform on -site operational and mechanical technical
support services for the Light & Power Department (the "Support Services"); and
WHEREAS, Contractor has prepared a rate schedule for July 1, 2005
through June 30, 2006, for the Support Services, a copy of which is attached hereto as
Exhibit A and incorporated by this reference (the "Proposal"); and
WHEREAS, Contractor represents that it is qualified and capable of
furnishing the labor, materials and expertise necessary to perform the Support Services
that the City requires, as set forth in this Agreement, and is willing to do so on the terms
and conditions set forth below; and
WHEREAS, the Contractor has provided a competitive bid proposal that is
acceptable to the City; and
WHEREAS, the City desires to enter into an agreement with Contractor to
provide the Support Services on a contract basis as defined in the terms and conditions
set forth below.
Page 1 of 18
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1. TERM OF CONTRACT
1.01. This Agreement will become effective December 1, 2005, and will continue in
effect until June 30, 2006, or until terminated as provided in this Agreement.
SECTION 2. DEFINITION OF TERMS
2.01. Whenever used in the Agreement, the following terms shall mean:
A. "Agreement" shall mean that formally executed Agreement or Contract
which includes the Contract Documents attached. The Agreement
constitutes the entire agreement between the parties relating to its subject
matter.
B. "City" shall mean the City of Vernon, California, the entity which has
executed the Agreement and, where applicable, its affiliated companies,
and its officers, directors, employees, representatives and agents.
C. "Contractor" shall mean Thomason Mechanical Corporation and where
applicable, its affiliated companies, and its officers, directors, employees,
representatives and agents.
D. "Contract Documents" shall include any inquiry, invitation to bid, or
proposal which may have, but not necessarily, preceded execution of the
Agreement, and including the General Provisions and all exhibits and
schedules attached to the Agreement and all plans and specifications
identified in the Contract Documents.
E. "Contract Price" shall mean the compensation set forth or provided for in
Section 4.01 of this Agreement. Whether it expressly provides for the
reimbursement of costs incurred by Contractor or simply for the payment
of a lump sum of money, it is intended to be the full and complete payment
for satisfactory completion of the Work and, unless otherwise stated, to
cover all costs whether for materials, equipment, tools, labor, services and
taxes and all overhead, rentals and profit or fee, if any.
F. "General Provisions" or "General Conditions" shall mean the General
Provisions as set forth in this Agreement.
G. "Premises" shall mean the physical premises under City's control or
ownership where Work hereunder is to be performed.
H. "Proprietary Information" and "Confidential Information" shall mean all
Page 2 of 18
information, whether written or oral, which Contractor acquires from,
through or on behalf of City, directly or indirectly, or which arises out of the
Work, concerning the Work or proprietary processes involved in the Work
including, without limitation, information concerning past, present or future
business plans of City, information about the operations of City's
Premises, and other City information or know-how obtained during the
Work, except information falling into any of the following categories:
Information which, at the time of disclosure hereunder, is in the
public domain;
2. Information which, after disclosure hereunder, enters the public
domain, except where such entry is the result of Contractor's or any
entity within Contractor's control breach of this Agreement;
3. Information which, prior to disclosure hereunder, was already in
Contractor's possession without limitation regarding disclosure to
others; or
4. Information which, subsequent to disclosure hereunder, is obtained
by Contractor from a third party who is lawfully in possession of
such information and not subject to a contractual or fiduciary
relationship to City with respect to said information and who does
not require Contractor to agree to refrain from disclosing such
information to others.
5. For information which is required to be disclosed as a result of any
court order or subpoena, the Consultant shall immediately notify the
City of any such required disclosure, shall cooperate with legal
counsel in the appeal or challenge of any such order or subpoena,
and shall only disclose Confidential Information to the extent
required in the order or subpoena.
I. "Subcontractor" shall mean any first or lower -tier subcontractor and its
employees, representatives, agents, subcontractors or other personnel
who have been approved in the manner required by this Agreement.
J. "Work" or "Support Services" shall mean the work performed by
Contractor and required to be performed from time to time by City under
this Agreement.
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SECTION 3. SUPPORT SERVICES TO BE PERFORMED BY
CONTRACTOR
Specific Services
3.01. Contractor's Support Services shall include, but will not be limited to, performing
on -site operational and mechanical technical support for the Light & Power
Department.
3.02. Contractor shall be responsible for providing all the necessary reports pursuant
to this Agreement.
Change of Services
3.03. City may at any time, by written change order executed by the Director of Light &
Power, make changes only to extend the Work duration and total compensation
of Contractor's Work. Changes in the scope of Work, or duties and obligations,
shall be authorized only by the City.
3.04. City may make "Changes" by increasing, reducing or deviating from the
requirements of the scope of Work. A form of Change Order is set forth in
Exhibit B attached hereto and incorporated by reference.
Timing of Services
3.05. Contractor's Support Services shall commence on December 1, 2005 and award
by the City Council and shall end on June 30, 2006, unless this Agreement is
otherwise terminated according to Section 6 of this Agreement or extended
according to the conditions and terms set forth in this Agreement.
3.06. Time is of the essence for all Work contemplated by this Agreement. Contractor
shall start performing Support Services under this Agreement only after
notification by the City.
Method of Performing Services
3.07. Contractor will determine and is responsible for the method, details, and means
of performing the above -described Support Services.
Status of Contractor
3.08. Contractor enters into this Agreement, and will remain throughout the term of this
Agreement, as an independent contractor. Contractor agrees that it is not and
will not become an employee, partner, agent, or principal of City while this
Agreement is in effect. Contractor agrees it is not entitled to the rights or benefits
Page 4 of 18
afforded to City's employees, including disability or unemployment insurance,
workers' compensation, medical insurance, sick leave, or any other employment
benefit. Contractor is responsible for providing, at its own expense, disability,
unemployment, and other insurance, worker's compensation, training, permits,
and licenses for itself and for its employees and subcontractors. Contractor shall
have complete and sole control over its employees, the details of the Support
Services and methods by which the Support Services are accomplished, it being
understood that City is interested only in the results to be obtained by Contractor.
3.09. Contractor has no authority to enter contracts or agreements on behalf of City.
This Agreement does not create a partnership or joint venture between the
parties.
Payment of Taxes
3.10. Contractor is responsible for paying when due all income taxes, including
estimated taxes, incurred as a result of the compensation paid by City to the
Contractor for Support Services under this Agreement. Contractor agrees to
indemnify City for any claims, costs, losses, fees, penalties, interest, or damages
suffered by City resulting from Contractor's failure to comply with this provision.
3.11. Payroll taxes including federal, state and local taxes shall not be withheld or paid
by City on behalf of Contractor or for the employees of the Contractor.
Contractor shall not be treated as an employee with respect to the Support
Services performed hereunder for federal or state tax purposes. Contractor shall
be responsible to pay taxes mandated by law.
3.12. Since Contractor is not an employee of City, Contractor is not eligible for and
shall not participate in any employee benefit of City, including pension, health or
other fringe benefits.
SECTION 4. COMPENSATION
4.01. In consideration for the Support Services to be performed by Contractor,
described in Section 3 of this Agreement, City agrees to pay Contractor on a
time -and -material basis for one (1) Working Foreman on site five (5) days a
week, eight (8) hours a day, according to the Rate Schedule set forth in Exhibit
A, a sum not to exceed Ninety Thousand Four Hundred Dollars and No Cents
($90,400.00) plus any applicable taxes (the "Contract Price").
Entire Compensation
4.02. The Contract Price is full and complete compensation, and constitutes the entire
compensation due Contractor for the Support Services and any and all of
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Contractor's obligations hereunder, regardless of difficulty, unforeseen
circumstances, hours worked or equipment, materials or personnel required.
The Contract Price includes without limitation compensation for applicable taxes,
customs. duties, fees, overhead, profit, travel time to and from the Premises and
all other direct and indirect costs incurred or to be incurred by Contractor
hereunder. The Contract Price set forth above is not subject to escalation for any
reason except as expressly set forth in this Agreement. No adjustments in
compensation shall be made as a result of changes in the value of any currency.
The Contract Price shall only be adjusted by formal, written Change Order or
amendment to this Agreement.
Payment of Compensation
4.03. For Support Services rendered under Section 3 of this Agreement, City agrees to
pay Contractor the sum set forth in Paragraph 4.01 of this Agreement on
completion of Work and within thirty (30) days of acceptance and approval of an
invoice prepared in accordance with City requirements. Such invoice shall
include, but not be limited to, the identification of hours worked for each individual
and their corresponding billable rate as reflected on the attached Rate Schedule.
4.04. For Support Services rendered under Section 3 of this Agreement, Contractor
shall be entitled to receive monthly payments. Contractor shall submit to City a
monthly invoice and statement of Support Services, prepared in accordance with
Section 4.03 and City requirements, by the fifteenth (15th) of each month, for the
prior calendar month's completed Work. City will make payments to Contractor
within thirty (30) days after acceptance and approval of the invoice received from
Contractor. The City's approval of the invoice shall not be unreasonably
withheld. If a portion of the invoice is in dispute, the undisputed portion shall be
paid within thirty (30) days of receipt.
4.05. Contractor shall be responsible for paying any subcontractors used in the ,
performance of this Agreement. Subcontractors shall not bill the City directly.
Expenses
4.06. City shall not be liable to Contractor for any expenses paid or incurred by
Contractor, except for those expenses identified in the Proposal. Expenses may
only be billed if advance written approval has been obtained from the City
Administrator.
Compensation for Changes
4.07. The compensation due Contractor, or the credit due City, for changes may not be
established verbally, and shall be established in a written change order signed by
City as described in Sections 3.03 and 3.04 of this Agreement. Compensation
Page 6 of 18
adjustments in each such change order shall be established by one or more of
the following bases, as determined by City: (a) a lump sum price to be negotiated
between the parties; or (b) Work unit rates to be negotiated between the parties.
Once established, the amount of the compensation due Contractor or credit due
City for a change shall not be subject to adjustment for any reason, including
changes in the value of any currency.
SECTION 5. OBLIGATIONS OF THE PARTIES
5.01. Contractor is responsible for meeting all conditions of this Agreement for all Work
performed. Substandard Work, as determined solely by the City, shall be redone
at the expense of the Contractor.
Products of Consulting
5.02. All products of consulting Support Services including, but not limited to, manuals,
documents and/or computer software, shall become the property of the City and
shall be delivered to the City before the end of the performance of this
Agreement. Basic notes and sketches, charts, computations and other data shall
be made available to City without restriction or limitation on their use.
Liability Insurance
5.03. Contractor and its subcontractor(s), if any, shall, prior to commencement of any
Work and for the duration of this Agreement, obtain and maintain at its own
expense, those minimum levels of insurance coverage as set forth below. Prior
to commencing Work hereunder, Contractor shall provide the City with proof of
insurance providing and maintaining the coverages and endorsements set forth
below. Said proof of insurance shall also provide that said policy_ or policies shall
not be canceled or materially reduced in coverage without giving at least thirty
(30) days prior written notice to the City.
5.04. The insurance coverage as listed herein, shall be properly endorsed to include
those contractual obligations which may be identified further within this
Agreement and shall be endorsed to provide City all the rights and privileges of
an additional insured.
5.05. Contractor shall cause its insurers to issue, including but not limited to,
Certificates of Insurance or, upon request, certified copies of the insurance
policies evidencing that the coverages and policy endorsements required under
this Agreement, are maintained in force.
5.06. Contractor shall ensure its subcontractor(s), if any, maintain those insurance
requirements as specified in this Agreement and are endorsed as additional
insured(s) on all required Contractor insurance coverages. Contractor and its
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subcontractor(s), if any, shall maintain in effect the following minimum insurance
coverages on an Occurrence Form Policy:
A. Workers Compensation within the statutory limits, including occupational
illness or disease coverage in accordance with the laws of the nation,
state, territory, or province exercising jurisdiction over Contractor's
employees. Workers Compensation and Employers Liability Insurance
shall have a minimum limit of $1,000,000 per occurrence. Contractor
further agrees to hold harmless and indemnify City for any and all claims
arising out of an injury, disability, or death of any of Contractor's
employees or agents.
B. Comprehensive General Liability Insurance, including, but not limited to,
Contractual Liability, Products and Completed Operations Liability, Broad
Form Property Damage and Bodily Injury Liability, and Explosion,
Collapse and Underground Liability, with a minimum combined single limit
of $2,000,000 per occurrence.
C. Comprehensive Automobile Insurance, including, but not limited to, all
owned, non -owned or hired vehicles with a minimum combined single limit
of $1,000,000 per occurrence for bodily injury and property damage.
D. Excess Liability Insurance with limits of $5,000,000. Such evidence of
insurance can either be through the primary insurance coverages or
through an excess policy. Such insurance shall at all times be on an
occurrence form and provide policy conditions as broad as'those required
in the primary insurance.
5.07. Contractor agrees to provide insurance in the amounts and forms specified
above. Contractor shall submit to the City documentation indicating compliance
with these minimum requirements no less than one (1) day prior to the beginning
of performance under this Agreement. Contractor shall not commence
performance of its Work under this Agreement until the above insurance has
been obtained and proof of insurance has been filed with and approved by the
City.
5.08. Contractor shall not permit a subcontractor or vendor to perform work on City
premises unless and until a certificate of insurance is obtained showing that such
subcontractor or vendor has worker's compensation coverage. If Contractor
employs subcontractors as part of the Support Services rendered, Contractor's
protective coverage is required. Contractor may include all subcontractors as
insureds under its own policy or shall furnish separate insurance for each
subcontractor, meeting the requirements set forth above.
Limitation on Contractor's Liability. Neither party shall have any liability for
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consequential damages of any nature whatsoever, however arising. In addition,
the dollar amount of Thomason's total liability under this Contract, shall not
exceed the amounts that may be recovered under the limits of the insurance
required to be maintained by Thomason hereunder, plus Thomason's warranty.
The limitation of the parties' liability shall apply regardless of whether liability is
asserted to arise in contract, negligence or under any other theory of law.
Representations
5.09. To the fullest extent permitted by law, Contractor shall defend, indemnify and
hold harmless City and its elected officials, officers, agents and employees from
all claims, suits, actions, demands, damages, liabilities, expenses, judgments,
settlements, and penalties, losses, fines, and all costs and expenses incurred in
connection therewith, including reasonable attorney's fees and all costs of
defense, arising out of or attributable to the negligent or wrongful acts of
Contractor or its employees or agents under this Agreement, except to the extent
arising from or caused by the sole negligence or willful misconduct of the City, its
officers, agents or employees. The terms of this indemnity shall survive the
termination of this Agreement.
5.10. Contractor and City represent that each has read and understands the
Agreement and Contract Documents. The Contractor represents it understands
the City's regulations concerning Premises access, badges, parking, security,
safety, fire, prohibited drugs and alcohol, and smoking and other rules, and that
Contractor has visited Premises where the Work is to be done and is familiar with
the local conditions under which it is to be done. Contractor also represents that
it is experienced in performing and competent and qualified to perform the kind of
tasks or assignments included in the Work and employs or has available for
employment in sufficient numbers all unskilled, skilled, administrative,
supervisory, professional and managerial or other personnel required to perform
the Work as required by this Agreement.
5.11. Contractor represents that it has the qualifications and skills necessary to
perform the Support Services under this Agreement in a competent, professional
manner, without the advice or direction of City. This means Contractor is able to
fulfill the requirements of this Agreement. Failure to perform all the Support
Services required under this Agreement constitutes a material breach of the
Agreement. Contractor has complete and sole discretion for the manner in which
the Work under this Agreement will be performed.
5.12. Contractor declares and states that is has complied with and will continue to
comply with all federal, state and local laws regarding business permits and
licenses that may be required to carry out the Support Services to be performed
under this Agreement.
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5.13. Contractor agrees to indemnify, defend, and hold City free and harmless from all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
recoveries and deficiencies, including interest, penalties, attorney's fees and
costs, that City may incur as a result of a breach by Contractor of any
representation or provision contained in this Agreement or any negligent or
intentional acts or omissions by Contractor, it subcontractors, agents, and
employees or based on any claim that any software program or other product
used or furnished by Contractor in the performance of this Agreement constitutes
an infringement of any United States patentor copyright.
City shall indemnify, defend, protect and hold Contractor and its officers, agents
and employees, free and harmless from and against claims, demands, losses,
damages, liabilities, fines, charges, penalties, orders, judgments and all costs
and expenses incurred in connection therewith, including reasonable attorney's
fees and costs of defense arising out of the City's negligent performance of
obligations under this Agreement.
5.14. Contractor's rights under this Agreement may not be assigned nor may its duties
be delegated or subcontracted without the prior written consent of City. Any
assignment or delegation or subcontract in violation of this Section shall, at City's
sole discretion, be void. Consent by City shall not relieve Contractor of
responsibility for performance of Contractor's obligations hereunder. City may
assign all or any part of this Agreement at any effective immediately upon
written notification to Contractor.
5.15. At all times while Work is being performed on the Premises each party shall be
represented thereon by a designated representative. Each party may notify the
other in writing of the identity of such persons from time to time.
Work Injury
5.16. The treatment and care of injuries sustained by Contractor's employees,
subcontractors, representatives or other personnel shall be and remain the
responsibility of Contractor. City's first aid facilities, if any, however, will be made
available to Contractor's employees in emergency cases which are the direct
result of accidents foccurring on the Premises. City shall incur no liability for, and
Contractor hereby agrees to indemnify City against, any causes of action, claim,
liability or costs, including attorney's fees, arising in whole or part out of the
furnishing of such first aid facilities or assistance to Contractor's employees,
subcontractors, representatives or other personnel, or out of the failure to furnish
such facilities or assistance.
Page 10 of 18
Records, Inspection and Audit
5.17. During the course of Work being performed, Contractor and any of its
subcontractors, shall maintain and retain, not less than three (3) years after
completion thereof, complete and accurate records of the. Contractor's costs
which are chargeable to the City under this Agreement. City or its designated,
authorized representatives, shall have the right during this three (3) year period,
upon written reasonable notice, to inspect and audit those records. Such records
to be maintained and retained by the Contractor shall include: (a) payroll record
accounting for the total time distribution of the Contractor's employees working
full or part time on the Work (to permit tracing to payroll payments in cash); (b)
invoices for purchases, receiving and issuing documents, and all the other unit -
inventory records for the Contractor's stores, stock or capital items; (c) paid
invoices and canceled checks for material purchased and for the subcontractor's
and any other third parties' charges; and (d) any other documentation City deems
necessary to support costs and charges under this Agreement.
Corporate Conduct
5.18. Contractor, its employees, agents or representatives shall not offer or give to an
officer, official or employee of City gifts, entertainment, payments, loans or other
gratuities to influence the award of a contract or obtain favorable treatment under
this Agreement or any other contract.
Standard of Care
5.19. Contractor agrees that all Support Services provided will be conducted by the
principal and competent staff members, if any, under the supervision of the
principal, and that Support Services will be performed and rendered diligently.
Contractor represents that it has, or shall secure, at its own expense, all
personnel required to perform Contractor's Support Services under this
Agreement, but at all times shall be responsible for the Support Services of such
personnel. Contractor may not employ any subcontractor without the prior
written approval of the City.
Treatment of Confidential and Proprietary Information
5.20. For ten (10) years after the effective date of this Agreement, Contractor shall
refrain from using any Confidential or Proprietary Information except in
connection with the Work or from disclosing it to any third party other than to
employees of Contractor who require it in performance of the Work and except to
such other third persons as City may authorize in writing. If disclosure to such an
employee or to other third persons is so authorized, Contractor shall enter into
with said party a confidentiality agreement containing provisions with respect to
use and disclosure of Proprietary Information substantially the same as those
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contained in this Agreement.
5.21. Contractor shall take reasonable precautions to safeguard any documents
containing Proprietary Information which City may supply to Contractor
hereunder. Contractor may copy, in whole or part, such documents to the extent
necessary for the performance of the Work, and Contractor shall return to City
upon the completion of the Work or request by City all such documents and
copies.
5.22. Except as expressly permitted by prior written consent of the City, Contractor
and/or its subcontractors shall not disclose, permit the disclosure of, release,
disseminate, or transfer, whether orally or by any other means, any part of such
Confidential Information to any other person or entity. Contractor and/or its
subcontractors shall return any written Confidential Information and all copies
made of such items to the City upon the City's written request, but in any event
not later than the date that Contractor has performed all Work to be performed
pursuant to this Agreement. Contractor hereby agrees that such Confidential
Information and any documents provided may be used by Contractor and/or its
subcontractors only as authorized by the City. Contractor shall include a
provision in its agreements with subcontractors that binds the subcontractors to
this non -disclosure requirement.
5.23. All reports, plans, data, studies, maps, drawings, models, photographs,
documents and other writings prepared by and for Contractor, its officers,
employees, agents and subcontractors in the course of implementing this
Agreement, with the exception of working notes, internal documents and
Confidential Information provided by businesses located in City, shall be
considered the property of City. Contractor shall deliver such documents and
materials to the City as they are generated; however, Contractor may take and
retain copies of said documents and materials that are not Confidential
Information, as desired.
5.24. All reports, information, data and exhibits prepared or assembled by Contractor
in connection with the performance of its Support Services pursuant to this
Agreement are confidential until released by the City to the public and Contractor
agrees that such documents shall not be available toaany individual or
organization without the written consent of the City prior to such release.
5.25. No reports, maps, or other documents produced in whole or in part under this
Agreement shall be the subject of an application for copyright by or on behalf of
Contractor.
Compliance with Authority
5.26. Contractor shall comply with all laws, regulations, executive orders and other
Page 12 of 18
applicable requirements of any governmental agencies having jurisdiction
including the Fair labor Standards Act, the Occupational Safety and Health Act
and all those relating in any way to employment practices and protection of the
environment. Contractor shall not discriminate against any employee or any
applicant for employment for reasons of race, color, creed, religion, sex, sexual
preference, age or national origin.
5.27. Contractor shall make timely payment of all employment taxes and of all social
security and other contributions of every kind required to be made with respect to
or measured by the wages and salaries of persons employed by Contractor.
5.28. Contractor shall indemnify City against, and hold City harmless from, any liability
or loss including liability or loss from fines or penalties arising out of Contractor's
failure to perform the obligations imposed upon it by Sections 5.28 and 5.29 of
the Agreement.
Progress Reports
5.29. Contractor shall meet with City staff, upon City's request, or as needed, in order
to provide reports or information concerning the Support Services being
performed by Contractor under this Agreement.
Contractor's License Classification
5.30 Contractor shall possess all appropriate licenses for the duration of this
Agreement.
SECTION 6. TERMINATION OF AGREEMENT
6.01. Unless otherwise terminated as provided in this Section, this Agreement will end
on June 30, 2006, unless otherwise extended according to the terms and
conditions set forth in this Agreement.
Non -Default Termination
6.02. City, at its sole discretion, may terminate this Agreement upon thirty (30) days
written notice to Contractor and such termination shall be effective in the manner
specified in such notice and shall be without prejudice to any claim that either
party may have against the other. During the thirty (30) day period after such
notice is sent, the parties shall continue to act toward each other in good faith.
6.03. In the event of any such termination, in full and complete settlement for the
termination of the Work, City shall pay Contractor for those Support Services
performed prior to the date of delivery of the termination notice, plus
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compensation for (i) necessary Work performed during the notice period and
authorized in the termination notice, and (ii) all costs reasonably and necessarily
incurred by Contractor directly attributable to termination which could not
reasonably have been avoided and for.which Contractor is not otherwise
compensated that are incurred through the date of termination and effectuating
the termination ("Termination Expenses"). Termination Expenses shall not
include lost profits, lost opportunities, consequential damages, or the like. In no
event shall total payment exceed the Contract Price.
Termination on Occurrence of Stated Events
6.04. This Agreement will terminate automatically on the occurrence of any of the
following events
A. Bankruptcy or insolvency of either party; or
B. Sale of the Contractor; or
C. Assignment of this Agreement by Contractor without City's written
consent.
Termination for Default
6.05. If Contractor defaults in the performance of this Agreement or materially
breaches any of its provisions, City may immediately terminate this Agreement
by giving written notification to Contractor indicating the effective date of such
termination. Termination will take effect immediately upon the date specified in
the notification. For the purposes of this paragraph, material breach of this
Agreement includes, but is not limited to, the following:
A. Contractor's failure to perform, in a manner satisfactory to the City
in its sole discretion, the Support Services specified in Section 3 of
this Agreement; or
B. Contractor's material breach of any obligation or provision
contained in Section 5 of this Agreement.
6.06. The waiver by either party of a breach or default by the other party shall not be
deemed a waiver of any different or later breach; nor shall any delay or omission
by either party to exercise any right it may have hereunder operate as a waiver of
any breach or default of such a right. The failure of either party to this
Agreement to exercise any of its rights under this Agreement does not constitute
a breach thereof and shall not be deemed to be a waiver of such rights or a
waiver of any subsequent breach.
Page 14 of 18
6.07. In the event of any termination of this Agreement or reduction in the scope of the
Work, Contractor shall not be entitled to damages for loss of profits for the
unexecuted portion of the Work or any other damages because of such
termination or reduction.
SECTION 7. GENERAL PROVISIONS
Notices
7.01. All notices, approvals, consents and other communications between the parties
shall be in writing, and shall be sent by fax or by certified mail (return receipt
requested) to the respective addresses set forth below, or at such other address
as may be furnished by either party to the other in writing. Faxed notices,
confirmed by copy thereof, shall be deemed communicated as of the day the
facsimile was sent. Mailed notices will be deemed communicated as of the day
of receipt or the third (3rd) day after mailing, whichever occurs first.
Contractor - Thomason
Mechanical Corporation
Attn: Ed Davis, Manager
2150 E. 37t" Street
Vernon, CA 90058
Fax: 310-639-8217
Telephone: 310-639-3523
City - City of Vernon
Attn: Bruce V. Malkenhorst, Jr.
Acting City Clerk
4305 Santa Fe Avenue
Vernon, CA 90058
Fax: 323-826-1438
Telephone: 323-583-8811 ext 260
Entire Agreement of the Parties
7.02. This Agreement supercedes any and all agreements, either oral or written,
between the parties with respect to the rendering of Support Services by
Contractor for City and contains all of the representations, covenants, and
agreements between the parties with respect to the subject matter of this
Agreement and the rendering of those Support Services. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not contained in this Agreement, and that no
other agreement, statement, or promise not contained in this Agreement or a
subsequent amendment or change order shall be valid or binding. No
amendment or change in the provisions of this Agreement shall be made, except
in a formal written amendment signed by Contractor and an authorized
representative of the City, or in a written change order. Contractor expressly
waives all claims for compensation based upon quantum merit, implied contract
or oral contract. Each party represents and warrants that it has read and fully
familiarized itself with this Agreement, and that such party has been fully
authorized to sign this Agreement.
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7.03. This Agreement shall be comprised of these included provisions, together with
Exhibits A and B, which are all attached. In the event of conflict between this
Agreement and any of the exhibits, including the Proposal, this Agreement shall
prevail.
Partial Invalidity
7.04. If any provision of this Agreement is held by a court of competent jurisdiction to
be invalid, void, or unenforceable, the remaining provisions will continue in full
force and effect without being impaired or invalidated in any way.
Law and Arbitration
7.05. All disputes arising out of or related to this Agreement, the conduct of either party
in connection with this Agreement, and the relationship and rights of the parties
in connection with this Agreement, whether characterized as breach of contract,
tort, or otherwise (except for those requesting injunctive relief) shall be
determined by binding arbitration in accordance with the terms of this Section.
The submittal of all matters to arbitration in accordance with the terms of this
Section is the sole and exclusive method, means and procedure to resolve any
and all claims, disputes or disagreements arising under this Agreement, except
for claims by either party which seek injunctive relief, which claims shall be
resolved by suit filed in the Superior Court of Los Angeles County, California, the
decision of which court shall be subject to appeal pursuant to applicable law.
The parties hereby irrevocably waive any and all rights to the contrary and shall
at all times conduct themselves in accordance with the terms of this Section,
relying on arbitration as the sole means of resolution of disputes. Arbitration of
all matters required to be arbitrated hereunder shall take place before a panel of
three retired judges of the Superior Court of the State of California (the
"Arbitrators") under the auspices of Judicial Arbitration & Mediation Services, Inc.
("JAMS"). Such arbitration shall be initiated by the parties, or either of them,
within ten (10) calendar days after either party sends notice of a demand to
arbitrate (the "Arbitration Notice") to the other party and to JAMS. The Arbitration
Notice shall contain a description of the subject matter of the arbitration, the
dispute with respect thereto, the amount involved, if any, and the remedy or
determination sought. Each party shall select a retired judge from the JAMS
panel, and the two selected judges shall mutually agree on the third retired judge
from the JAMS panel. If one of the parties does not select a retired judge from
the JAMS panel within fourteen (14) calendar days after receipt of the Arbitration
Notice, JAMS will select the second judge, and the judge selected by JAMS and
the judge selected by the other party will select the third judge for the panel. The
third judge is to be selected within ten (10) calendar days following the selection
of the first two judges. The three judges will together serve as the Arbitrators.
The arbitration shall be conducted in Los Angeles, California. Any party may be
represented by counsel and/or other authorized representative. In rendering a
Page 16 of 18
decision(s), the Arbitrators shall determine the rights and obligations of the
parties according to thesubstantive and procedural laws of the State of California
and the terms of this Agreement. The decision of the Arbitrators shall be based
on the evidence introduced at the hearing and accompanied by a written
statement of decision as to each of the principal controverted issues. The
agreement of two of the three Arbitrators as to the resolution of the dispute shall
be a conclusive resolution. The Arbitrators shall deliver the written decision to
the parties within thirty (30) calendar days following the date of the selection of
the last of the Arbitrators. The decision shall be conclusive and binding, and it
may thereafter be confirmed as a judgment by the Superior Court of the State of
California, subject only to challenge on the grounds set forth in the
California Code of Civil Procedure Section 1286.2. The validity and
enforceability of the decision of the Arbitrators is to be determined exclusively by
the California courts.
Attorney's Fees
7.06. In the event a dispute, claim or litigation arises regarding this Agreement, the
prevailing party shall be entitled to reimbursement for reasonable attorneys' fees
and actual costs, which may be set by the arbitrators or the court in the same
action or in a separate action brought for that purpose, in addition to any other
relief which is obtained.
7.07. Neither party shall be considered in default in any of its obligations under this
Agreement when a failure of performance shall be due to an uncontrollable force.
The term "uncontrollable force" shall mean any cause beyond the control of the
party affected, including, but not restricted to, flood, earthquake, storm, fire,
lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or
municipal action, statute, ordinance, or regulation, embargoes of the United
States Government or any other government, which by exercise of due diligence
such party could not reasonably have been expected to avoid and by exercise of
due diligence has been unable to overcome. Either party rendered unable to
fulfill any of its obligations under this Agreement by reason of an uncontrollable
force shall give written notice within five (5) business days of such fact to the
other party and shall exercise due diligence to remove such inability with all
reasonable dispatch. -
7.08. Except as may otherwise be specifically provided herein, this Agreement may be
modified or amended only by a written document executed by both Contractor
and the City and approved as to form by the City Attorney.
7.09. The captions used in this Agreement are for convenience only and shall in no
way define, limit or describe the scope or intent of the Agreement or any part
thereof.
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7.10. City reserves the right to award similar contracts to multiple contractors to ensure
the City has adequate Support Services.
IN WITNESS WHEREOF, the parties have executed the Agreement on the dates
shown below.
Executed at , California, on
City:
City of Vernon
a g:- Leonis C. Ma burg, Mayor
Date:
ATTE :
Bruce . alkenhorst, Jr., Acting City Clerk
APPRO ED AS TO FORM:
Eric--T. Fres , City Attorney
Contractor:
Thomason Mechanical
o
0111C._ k-LC -f I i-rW
tle: ye
Date: �u6V /
Page 18 of 18
EXHIBIT A
Corporate Office:
No. California Office: Texas Office:
Coletel Office:
2150 E. 37* Street
4595 Pacheco Blvd.
3444 E. Pasadena Frwy.
6261 Prescott Court
Vernon, CA 90058
Martinez, CA 94553
Pasadena, TX 77503
Chino, CA 91710
r fir r wrri� Tel: (310) 6393523
Tel: (925) 372-4844
Tel: (713) 472-3444
Tel_ (909) 59DA500
AMW W AMW *1� Fax: (310) 639-8217
Fax: (925) 372-4845
Fax: (713) 472-8428
Fax (909) 59OA600
Thomason Mechanical www.tliornasonmech.com www.coletel.com www.woodgroup.com
CA. License 823124
SOUTHERN CALIFORNIA PREVAILING RATE SCHEDULE
JULY 1, 2005 through JUNE 30, 2006
Hourly Rates Straight Time Overtime Double time
Shift Days Nights Days Nights Days Nights
Journeyman Millwright
64.00
66.00
83.00
85.00
102.00
103.00
Working Foreman
67.00
69.00
87.00
89.00
107.00
109.00
General Foreman
70.00
72.00
91.00
93.00
112.00
114.00
Project Manager
72.00
73.00
93.00
95.00
115.00
117.00
Crane Op & Cert Welder
65.00
67.00
85.00
87.00
104.00
106.00
Apprentice Millwright
57.00
59.00
73.00
75.00
89.00
91.00
THESE RATES INCLUDE WAGES, BENEFITS, PAYROLL TAXES, WORKERS' COMPENSATION, OVERHEAD, ALL TOOLS
EXCEPT SPECIAL TOOLS AND EQUIPMENT, PRODUCT LIABILITY, GENERAL AUTOMOTIVE LIABILITY AND ALL
OTHER REQUIRED INSURANCES, PERMITS AND TAXES. THIS DOES NOT INCLUDE STATE SALES OR USE TAXES.
APPRENTICES MAY BE USED ON ANY CREW CONSISTING OF AT LEAST THREE MEN SUBJECT TO THEIR
QUALIFICATIONS AND AVAILABILITY.
AN ADDITIONAL TEN DOLLARS (S10.00) PER HOUR SHALL BE ADDED TO THE GENERAL FOREMAN'S AND FIELD
FOREMEN'S RATE TO COVER THE COST OF TRUCK, MAINTENANCE AND FUEL.
OVERTIME SHALL BE CHARGED FOR ALL WORK OVER EIGHT (8) HOURS A DAY AND FOR ALL WORK PERFORMED ON
SATURDAYS. IF 4-10 HOUR DAYS ARE WORKED, OVERTIME WILL BE CHARGED FOR ALL WORK PERFORMED AFTER
10 HOURS PER DAY AND ALL HOURS WORKED ON FRIDAYS OR SATURDAYS. THIS ONLY APPLIES WHEN A FULL
(MONDAY-THURSDAY) 4-10 HOUR SCHEDULE IS WORKED, OTHERWISE THE STANDARD OVERTIME RATE AFTER 8
HOURS WOULD APPLY.
DOUBLE TIME SHALL BE CHARGED FOR ALL WORK PERFORMED ON SUNDAYS OR THE FOLLOWING DESIGNATED
HOLIDAYS: NEW YEARS DAY, MARTIN LUTHER KING'S DAY, MEMORIAL DAY, VETERANS DAY, INDEPENDENCE DAY,
LABOR DAY, THANKSGIVING DAY, THE DAY AFTER THANKSGIVING DAY AND CHRISTMAS DAY
TRAVEL TIME FOR EMPLOYEES WILL BE CHARGED ON A STRAIGHT TIME BASIS FOR ACTUAL HOURS TRAVELED IF
APPLICABLE PLUS .35 CENTS PER MILE. TRANSPORTATION, TRAVEL AND HOTEL EXPENSE WILL BE CHARGED AT
COST W APPLICABLE.
SUBSISTENCE FOR LABOR WILL BE CHARGED AT THE RATE OF $45.00 PER DAY, PER MAN WHEN APPLICABLE
THERE SHALL BE A MINIMUM FOUR-HOUR CHARGE PER PERSON AT THE APPLICABLE RATE FOR SHOW -UP TIME
WHETHER WORK IS PERFORMED OR NOT. THERE SHALL BE A MINIMUM EIGHT -HOUR_ CHARGE PER PERSON AT THE
APPLICABLE RATE IF THEY WORK MORE THAN FOUR HOURS.
ALL ADDITIONAL MATERIALS, RENTALS, FREIGHT AND 3RD-PARTY SUBCONTRACTS SHALL HAVE A FIFTEEN'
PERCENT (15%)HANDLING CHARGE
ALL WORK IS TO BE PERFORMED USING WOOD GROUP/TMC STANDARD CONTRACT TERMS AND CONDITIONS
UNLESS OTHER MUTUALLY AGREED TO TERMS AND CONDITIONS ARE NEGOTIATED
TERMS: NET 30 DAY
Confidential/Proprietary
Grade all Price for rent
A.O. Richardson
818-242-0888
Sandy
Quality Equipment
310-677-7600
John
United Rental
562-663-1500
Skylitf
800-457-6616
Day rent
Weekly rent
Monthly Rent /
80001-b
$160.00
$680.00
$1,600.00 ✓�
90001-b
$225.00
$900.00
$2,100.00
80001-b.
$295.00
$1,800.00
$2,850.00 +/
90001-b
$295.00
$1, 800.00
$2, 850.00
80001-b
$376.00
$1,400.00
$3,860.00
90001-b
$376.00
$1,400.00
$3,860.00
90001-b $ 330.00 $ 1,100.00 $ 3,300.00
EXHIBIT B
Form Chantle Order
CHANGE
Contract Number:
Change Number:
The requirements of the above designated Agreement are changed as follows:
City and Contractor agree that Contractor's compensation shall be adjusted as follows:
City and Contractor agree that Contractor's schedule shall be adjusted as follows;
This adjustment covers the entire compensation for the Change set forth above and includes, but
is not limited to compensation for all engineering, material, equipment, subcontracts, labor,
overhead, profit, changes in scheduling and delays resulting, directly or indirectly, from the
Change, as further detailed in the Agreement.
Contractor (Thomason Mechanical Corporation) City (City of Vernon, California)
By By
Date Date
MW
INSTRUCTIONS TO CONTRACTOR
Contract Number:
Instruction to Contractor Number:
Date:
Specific Instructions to Contractor:
In accordance with the Terms and Conditions of the Agreement, the City classifies these
instructions as:
Supplementary instructions, not involving a Change
(Should these instructions be, in the opinion of Contractor, a "Change", written notice thereof
must be given to City within 10 days of the receipt of these instructions. If such written notice is
given, Contractor shall not commence with the work so ordered until written agreement is
reached on the classification of these instructions and on the resulting adjustment in contract
compensation, if any.) In the event that City and Contractor fail to agree on the classification of
these instructions or resulting adjustment in contract compensation, if any, refer to the Changes
Section of the Agreement.
A Change
(Contractor shall, within 10 days of the receipt of these instructions, furnish City a statement of
its proposal for adjustment in contract compensation occasioned hereby. Contractor shall not
commence with the work so ordered until written agreement is reached on the resulting
adjustment in contract compensation, if any.) In the event that City and Contractor fail to agree
on the classification of these instructions or resulting adjustments in contract compensation , if
any, refer to the Changes Sections of the Agreement.
City Representative
Please acknowledge receipt of this instruction by returning one copy signed in the space
provided below. Contractor's signature hereon does not indicate his acceptance of the
classification assigned hereto by City.
Contractor Representative
Date
Date
C
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro —Tern
WM. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
4305 Santa Fe Avenue, Vernon, California 90058
telephone (323) 583-8811
March 2, 2006
Thomason Mechanical Corporation
Attn: Ed Davis, Manager
2150 East 37th Street
Vernon, CA 90058
SOL BENUDIZ
Police Chief
MARK C. WHITWORTH
Acting Fire Chief
LEWIS J. POZZEBON
Director of Environmental Health
S. KEVIN WILSON
Director of Community Services
SHARON L. DUCKWORTH
Acting City Treasurer
Re: Operational and Mechanical Technical Support Services Agreement
Dear Mr. Davis:
In accordance with Section 5 of said agreement, you are to furnish the
City with proof of insurance.
Please submit your insurance documents to Willard Yamaguchi, Acting
Risk Manager, for review and approval. Upon approval of said
documentation, this office will forward to you a fully executed
duplicate original agreement.
If you have any questions, please contact Willard Yamaguchi at
323/583-8811 ext. 175.
ry truly yours,
elly Gi n
Deputy City Clerk
NG:dr
cc: Willard Yamaguchi
Donal O'Callaghan
Resolution No. 8977
Agreement File No. 06-023
'Exclumvclp wnbugtdal
cp/9 / ;7 0( 311/06
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
WM. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
February 23, 2006
4305 Santa Fe Avenue, Vernon, California 90058
telephone (323) 583-8811
Mr. Ed Davis
Manager
Thomason Mechanical Corporation
2150 E. 37th Street
Vernon, CA 90058
SOL BENUDIZ
Police Chief
MARK C. WHITWORTH
Acting Fire Chief
LEWIS J. POZZEBON
Director of Environmental Health
S. KEVIN WILSON
Director of Community Services
SHARON L. DUCKWORTH
Acting City Treasurer
a
Re: Services Agreement for Operational and Mechanical Technical
Support Services
Dear Mr. Davis:
Enclosed please find two duplicate originals of the aforementioned
Agreement which need to be signed by the appropriate parties and
returned to the City, to the attention of Judy Lehr, Legal Department,
by Wednesday morning, March 1, 2006.
Once the originals are executed by the City, one fully executed original
will be returned to you for your files.
Please refer to the enclosed "City of Vernon Signature Requirements for
City Agreements" and comply with the requirements set forth for your
company.
I thank you for your cooperation regarding this matter.
V ry trul yours, }
dOA
{
Willard G. a gud
Chief Dep t�ity Attorney
1_1
jl
Enclosures
cc. Ms Nell, y G.ron, Deputy City Clerk (w/o encls.)
'Excrugively wuhAtrial
cc
j 0 Dy
is 1�1,0
INTEROFFICE MEMORANDUM
Light & Power Department
DATE: January 19, 2006
TO: Bruce V. Malkenhorst, Jr. APPfZo'VG:p
Assistant City Attorney/Acting City Clerk 101
FROM: Donal O'Callaghan /
Director of Light & Power cc 31,106
SUBJECT: Light & Power — Thomason Mechanical, Inc. 311,11
Request for Contract- $90,400.000 P
request authorization for the City to enter into a contract with Thomason Mechanical, Inc. from
December 1, 2005 through June 30, 2006 for on -site operational and mechanical technical
support services for the Light & Power Department. The cost will be accrued as follows, per the
attached rate sheet:
1. One Working Foreman on site five days a week, eight hours a day
from December 2005 through June 2006 at $67.00 per hour: $80,400.00
2. Contingency to cover incidentals: $10,000.00
TOTAL: $90,400.00
1 look forward to discussing this with you at your earliest convenience.
DOC:rmt
Attachment
c: Anthony Baldere
Gloria Orosco
Document Control
1
-
Corporate Office:
No. Calitbmia Office: Texas office:
Coletel Office:
2150 E. 371" Street
4595 Pacheco Blvd. 3444 E. Pasadena Frvry.
6261 Prescott Court
_
Vernon, CA 90058
Martinez, CA 94553 Pasadena, TX 77503-
Chino, CA 91710
alA � ! �N
Tel: (310) 639-3523
Tel: (925) 372-4844 Tel: (713) 472-3444
Tel: (909) 590-4500
� a W
Fax: (310) 639-8217
Fax: (925) 372-4845 Pax: (713) 472-8428
Fax: (909) 590-4600
Thomason Mechanical
www.thomasonmech.com www.coletel.com
www.woodgroup.com
CA. License 823124
SOUTHERN CALIFORNIA PREVAILING RATE SCHEDULE
JULY 1, 2005 through JUNE 30 2006
Hourly Rates Straight Time Overtime Double time
Shift Days Nights Days Nights Days Nights
Journeyman Millwright
64.00
66.00
83.00
85.00
102.00
103.00
Working Forman
67.00
69.00
87.00
89.00
107.00
109.00
General Foreman
70.00
72.00
-91.00
93.00
112.00
114.00
Project Manager
72.00
73.00
93.00
95.00
115.00
117.00
Crane Op & Cert Welder
65.00
67.00
85.00
87.00
104.00
106.00
Apprentice Millwright
57.00
59.00
73.00
75.00
89.00
91.00
THESE RATES INCLUDE WAGES, BENEFITS, PAYROLL TAXES, WORKERS' COMPENSATION, OVERHEAD, ALL TOOLS
EXCEPT SPECIAL TOOLS AND EQUIPMENT, PRODUCT LIABILITY, GENERAL AUTOMOTIVE LIABILITY AND ALL
OTHER REQUIRED INSURANCES, PERMITS AND TAXES. THIS DOES NOT INCLUDE STATE SALES OR USE TAXES,
APPRENTICES MAY BE USED ON ANY CREW CONSISTING OF AT LEAST THREE MEN SUBJECT TO THEIR
QUALIFICATIONS AND AVAILABILITY.
AN ADDITIONAL TEN DOLLARS ($10.00) PER HOUR SHALL BE ADDED TO THE GENERAL FOREMAN'S AND FIELD
FOREMEN'S RATE TO COVER THE COST OF TRUCK, MAINTENANCE AND FUEL.
OVERTIME SHALL BE CHARGED FOR ALL WORK OVER EIGHT (8) HOURS A DAY AND FOR ALL WORK PERFORMED ON
SATURDAYS. IF 4-10 HOUR DAYS ARE WORKED, OVERTIME WILL BE CHARGED FOR ALL WORK PERFORMED AFTER
10 HOURS PER DAY AND ALL HOURS WORKED ON FRIDAYS OR SATURDAYS. THIS ONLY APPLIES WHEN A FULL
(MONDAY-THURSDAY) 4-10 HOUR SCHEDULE IS WORKED, OTHERWISE THE STANDARD OVERTIME RATE AFTER 8
HOURS WOULD APPLY.
DOUBLE TIME SHALL BE CHARGED FOR ALL WORK PERFORMED ON SUNDAYS OR THE FOLLOWING DESIGNATED
HOLIDAYS: NEW YEARS DAY, MARTIN LUTHER KING'S DAY, MEMORIAL DAY, VETERANS DAY, INDEPENDENCE DAY,
LABOR DAY, THANKSGIVING DAY, THE DAY AFTER THANKSGIVING DAY AND CHRISTMAS DAY
TRAVEL TIME FOR EMPLOYEES WILL BE CHARGED ON A STRAIGHT TIME BASIS FOR ACTUAL HOURS TRAVELED IF
APPLICABLE PLUS .35 CENTS PER MILE. TRANSPORTATION, TRAVEL AND HOTEL EXPENSE WILL BE CHARGED AT
COST W APPLICABLE.
SUBSISTENCE FOR LABOR WILL BE CHARGED AT THE RATE OF $45.00 PER DAY, PER MAN WHEN APPLICABLE
THERE SHALL BE A MINIMUM FOUR-HOUR CHARGE PER PERSON AT THE APPLICABLE RATE FOR SHOW -UP TIME
WHETHER WORK IS PERFORMED OR NOT. THERE SHALL BE A MINIMUM EIGHT -HOUR CHARGE PER PERSON AT THE
APPLICABLE RATE IF THEY WORK MORE THAN FOUR HOURS.
ALL ADDITIONAL MATERIALS, RENTALS, FREIGHT AND 3RD-PARTY SUBCONTRACTS SHALL HAVE A FIFTEEN
PERCENT (15%)HANDLING CHARGE
ALL WORK IS TO BE PERFORMED USING WOOD GROUP/TMC STANDARD CONTRACT TERMS AND CONDITIONS_
UNLESS OTHER MUTUALLY AGREED TO TERMS AND CONDITIONS ARE NEGOTIATED
TERMS: NET 30 DAY
ConfidentiaUPropridary
Grade all Price for rent
A.O. Richardson
818-242-0888
Sandy
Quality Equipment
310-677-7600
John
United Rental
562-663-1500
Skylitf
800-457-6616
Day rent
Weekly rent
Monthly Rent /
8000Lb
$160.00
$680.00
$1,600.00 ✓�
9000Lb
$225.00
$900.00
$2,100.00
80001-b.
$295.00
$1,800.00
$2,850.00
9000Lb
$295.00
$1,800.00
$2,850.00
80001-b
$376.00
$1,400.00
$3,860.00
9000Lb
$376.00
$1,400.00
$3,860.00
9000Lb
$ 330.00
$ 1,100.00
$ 3,300.00
OU
CITY OF VERNON
�,�_rLight & Power Department
Contract Change Order No. 1 Supplement No. n/a Page 1 of 1
PROJECT: Operations and Mechanical Technical Support Services P.O. No. 13176
TO: THOMASON MECHANICAL CORPORATION (Consultant and/or Vendor)
2150 East 37th Street, Vernon, CA 90058
REQUESTED BY: City of Vernon
CONTRACT AMENDMENT FOR THE ADJUSTMENT IN COMPENSATION FOR THE REMAINDER OF THE TERM OF THIS AGREEMENT:
1) Increase the amount of Purchase Order (PO) issued April 4, 2006, for the purpose of continuing with
on -site operational and mechanical technical support at an amount not to exceed $20,000.00.
Total amount of Change Requested: 20 000.00
Except as specifically modified herein_ all terms and conditions of the original Agreement are unmodified and
remain in firll force and effect, and apply to the eltended time of performance. the additional ivork and
additional costs as if those terms, serrices and costs N ere originall included in the Agreement
Original Contract Amount ......................................... , ........ .$90,400.00
Revised contract amount including this requested Change Order No. 1 ................ . $110,400.00
r Approved: � :� � �� Date: -- 45 2006
DONALD O'CALLAGHAN, Director of Li ower
We, the undersigned ConsultanWendor, have given careful consideration to the change proposed and hereby agree. If this proposal is
approved we will provide all equipment, furnish all materials (except as may be noted otherwise), and perform all services necessary for
the work specified above, and will accept as full payment therefore the prices shown above.
AcQepf6d, TR)mason chanical Corporation (ConsultantNendor) Date: �� 2006
Title:
cc: Purchasing
RECEIVED