HomeMy WebLinkAboutC-5865 - On-Call PSA for As-Needed SCADA Programming Software Support Servicesex;
,r ON -CALL PROFESSIONAL SERVICES AGREEMENT
Ci WITH FREEDOM AUTOMATION, INC. FOR
AS- NEEDED SCADA PROGRAMMING SOFTWARE SUPPORT SERVICES
THIS ON -CALL PROFESSIONAL SERVICES AGREEMENT ( "Agreement') is
made and entered into as of this 1st day of May, 2014 ( "Effective Date "), by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ( "City"), and FREEDOM AUTOMATION, INC., a California corporation
( "Consultant'), whose address is 4035 Oceanside Blvd, F42, Oceanside, CA 92056,
and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide as- needed SCADA programming
software support services ( "Project').
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on April 30, 2017, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Consultant shall perform the on -call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ( "Services"
or "Work "). Upon written request from the Project Administrator as defined herein,
Consultant shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal'). The Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
2.1.2 The position of each person to be assigned to perform the
Services, and the name of the individuals to be assigned, if available;
2.1.3 The estimated number of hours and cost to complete the Services;
and
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Consultant
shall diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Consultant shall perform the Services in accordance with the schedule
included in Exhibit A and the Letter Proposal. In the absence of a specific schedule, the
Services shall be performed to completion in a diligent and timely manner. The failure
by Consultant to strictly adhere to the schedule set forth in Exhibit A and the Letter
Proposal, if any, or perform the Services in a diligent and timely manner may result in
termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to-
exceed basis in accordance with the provisions of this Section and the Letter Proposal
and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein
by reference. Consultant's compensation for all Work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall not exceed
Sixty Thousand Dollars and 00/100 ($60,000.00), without prior written authorization
from City. No billing rate changes shall be made during the term of this Agreement
without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
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who performed the Work, a brief description of the Services performed and /or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) calendar days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically identified in Exhibit B to this Agreement and the Letter Proposal or
specifically approved in writing in advance by City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B and the Letter Proposal.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Dino Grillo to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project
Manager and any other assigned staff shall be equipped with a cellular phone to
communicate with City staff. The Project Manager's cellular phone number shall be
provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Municipal Operations Department.
City's Utilities General Manager or designee shall be the Project Administrator and shall
have the authority to act for City under this Agreement. The Project Administrator shall
represent City in all matters pertaining to the Services to be rendered pursuant to this
Agreement.
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7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first -
class firms performing similar work under similar circumstances.
8.2 All Services shall be performed by qualified and experienced personnel
who are not employed by City. By delivery of completed Work, Consultant certifies that
the Work conforms to the requirements of this Agreement, all applicable federal, state
and local laws, and the highest professional standard.
8.3 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties ") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims "), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any Work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Consultant's presence or
activities conducted on the Project (including the negligent, reckless, and/or willful acts,
Freedom Automation, Inc. Page 4
errors and/or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly
by any of them or for whose acts they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by
Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No
civil service status or other right of employment shall accrue to Consultant or its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Consultant or any of Consultant's employees or agents, to be the agents or employees
of City. Consultant shall have the responsibility for and control over the means of
performing the Work, provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Consultant as to the details of the performance of the Work or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of City
with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
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14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall
be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Consultant, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Consultant is a
partnership or joint- venture or syndicate or co- tenancy, which shall result in changing
the control of Consultant. Control means fifty percent (50 %) or more of the voting
power or twenty -five percent (25 %) or more of the assets of the corporation, partnership
or joint- venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A and the Letter Proposal. Consultant shall be fully responsible to
City for all acts and omissions of any subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and any subcontractor nor shall it
create any obligation on the part of City to pay or to see to the payment of any monies
due to any such subcontractor other than as otherwise required by law. City is an
intended beneficiary of any Work performed by the subcontractor for purposes of
establishing a duty of care between the subcontractor and City. Except as specifically
authorized herein, the Services to be provided under this Agreement shall not be
otherwise assigned, transferred, contracted or subcontracted out without the prior
written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced, including but not limited to, websites, blogs, social media accounts
and applications (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Additionally, all material posted in
cyberspace by Consultant, its officers, employees, agents and subcontractors, in the
course of implementing this Agreement, shall become the exclusive property of City,
and City shall have the sole right to use such materials in its discretion without further
Freedom Automation, Inc. Page 6
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents, including all logins and password information to City
upon prior written request.
17.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant, and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
17.3 All written documents shall be transmitted to City in formats compatible
with Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including
costs, contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Consultant shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
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City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act'), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold harmless
City for any and all claims for damages resulting from Consultant's violation of this
Section.
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first -
class mail, addressed as hereinafter provided.
Freedom Automation, Inc. Page 8
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: George Murdoch, Utilities General Manager
Municipal Operations Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Dino Grillo
Freedom Automation, Inc.
4035 Oceanside Blvd, F42
Oceanside, CA 92052
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
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satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
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this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Freedom Automation, Inc. Page 11
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: �q 7,11 �
eaMBy: LN l�
Aaron C. Harp
City Attorney
ATTEST: II
Date: U�o�
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
B
or I
Acting Co -Director
CONSULTANT: Freedom Automation,
Inc., a CaAfnia)cor oration
Date:
By:
i o Grillo
Chief Executive
W
By:
F
0 MY
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Freedom Automation, Inc. Page 12
EXHIBIT A
SCOPE OF SERVICES
Provide labor, materials, and equipment to perform SCADA programing software
support services, which may include but is not limited to the following:
• System Engineering and Automation Consultation
• System Design Consultation
• System Analysis
• PLC Programming
• HMI Development and Programming
• Database Design and Implementation
• Custom Software Development
• WEB Based Applications
• Network Design, Implementation and Troubleshooting
• Motion Control
• Barcoding Applications
• Process Control
• Technical Training
• Field Engineering Support
• 24 -Hour Emergency Service
Freedom Automation, Inc. Page A -1
EXHIBIT B
SCHEDULE OF BILLING RATES
Freedom Automation, Inc. Page B -1
FREEDOM AUTOMATION? INC.
"PrDV�At StK&?le Sol ut%ows to C MPL&K Probl. mS'
Preedom Automation, Inc. — P.O Box 5416, Oceanside, CA 92052 -5416
(760) 639 -4100 tel — (760) 639 -4102 fax
www.freedom autom a5on.com
1-
April 17, 2014
m AL
FREEDOM AUTOMATIONS INC.
STANDARD HOURLY RATES FOR ENGINEERING SERVICES
Business Consulting & Systems Design
Senior Consultant
$ 175 /Hour
Consultant
$ 155 /Hour
Factory Automation Consulting & Systems Design:
Senior Consultant
$ 175/Hour
Consultant
$ 155 /1-lour
IT Support, Programming and Engineering:
Senior Design Services
$175 /Hour
Senior Programmer
$155 /Hour
Programmer $ 150/Hour
Senior Engineering Support $ 155/Hour
Engineering Support $ 130/Hour
Other:
CAD Services $ 75 /Hour
IT Technician $ 150 /Hour
Software Technician $120 /Hour
Hourly charges will be billed weekly, portal to portal at the appropriate engineering rate, including mileage at
$.55 /mile. Other reimbursable expenses will be billed as incurred.
Two (2) hour minimum charge applies to all service calls.
Time over 8 hours a day on -site is billed at 1.5 times regular hourly rate.
Time over 12 hours a day on -site is billed at 2.0 times regular hourly rate.
Sixth and seventh consecutive days on -site are billed at 1.5 times regular hourly rate for the first eight hours and 2.0
times regular hourly rate after the first eight hours.
Also note that FAI provides services on a Fixed Cost basis when the scope of work is well defined, and engineering
estimates can be developed. Fixed Cost projects are often provided at the equivalent of a reduced hourly rate.
• Page 2
April 17, 2014
Standard Terms and Conditions and Limited Warranty
Unless otherwise stated in a Freedom Automation, Inc. (FAI) Proposal or Agreement, or on an attached written addendum specifically
referring to these Terms and Conditions, Purchaser (Purchaser includes Owner, Company or other designation of the party contracting with
FAI), and FAI agree to the following terms and conditions:
1. Warranty: With respect to materials or equipment rat manufactured by FAI, the warranty obligations of FAI shall in all respects conform and be
limited to the warranty actually extended to FAI by its supplier. FAI warrants any valueadded engineering to be free from defects in material and
workmanship for a period of one year from date of completion or date of delivery (whichever is earlier) by FAI. If within such period any value -
added engineering shall be proved to FAI satisfaction to be so defective, such value -added engineering shall be repaired or replaced at FAI's
option. This warranty shall not apply to (a) any engineering not provided by FAI, (b) to engineering which shall have been repaired or altered by
others than FAI, or (c) to engineering which shall have been subjected to negligence, accident or damage by circumstances beyond FAI's control,
or to improper operation, maintenance or storage, or to other than normal use or service. FAI's liability to Purchaser arising out of the supply of
value -added engineering, whether based on warranty, contract, or negligence shall not in any case, exceed the cost of correcting defects. The
foregoing shall constitute Purchaser's sole remedy and FAI's sole liability. In no event shall FAI be liable for loss or damage of equipment after
received at Purchaser's site, or for special or consequential damages, loss of use, or loss of materials or profits. The foregoing warranty is
exclusive and in lieu of all other warranties whether written, oral or implied. There are no warranties, express or implied, including but not limited to
warranties of merchant ability and fitness for a particular purpose, which extend beyond the warranties provided in this paragraph.
2. Payments: All sales related to these Terms and Conditions are FOB FAI's facility unless stated otherwise in writing in FAI's Proposal or
Agreement The terms for payment of all invoices are due upon receipt from date of invoice unless otherwise agreed to in writing or stated
otherwise in writing in FAI's Proposal or Agreement. If payment of the full invoice amount is not received within thirty (30) days from date of invoice,
any unpaid amount of the purchase price shall increase at the rate of one and on-half percent (1 1/2%) per month until paid. Equipment held for
Purchaser after completion of any work and/or furnishing of the items, goods, or materials shall be at Purchaser's risk and expense.
3. Shipment All orders are shipped FOB FAI's shipping point or other locations designated by FAI. Inbound and outbound freight charges as well as
insurance charges are prepaid by FAI and added to the Purchaser's invoice.
4. Proposals and Prices: Written Proposals are conditioned upon acceptance by Purchaser within thirty (30) days from date issued and shall be
considered as offers by FAI to sell during such thirty (30) day period unless sooner terminated by notice. Other FAI documents or publications are
maintained as sources of general information and are rat offers to sell. These other FAI documents include, but are not limited to, cost sheets,
written estimates and any document not carving a Proposal number of the format "FA xxxx -yy. Verbal estimates are also excluded as offers by
FAI to sell. All prices am subjected to change without notice and all clerical errors am subject to correction.
6. Schedule: All delivery dates stated by FAI are approximate and are based on FAI best estimates considering all known factors relating to the
project, some of which may not be known and many of which are outside FAI's control. Due to the nature of Systems Integration and Software
Development and the fact that critical portions of systems integrated by FAI are provided by software and hardware suppliers ailing according to
computer and software industry standard practices, FAI shall not be liable for any and all costs incurred by Purchaser or others due to project
delays.
In the event of delays due to specific, measurable events, new estimated delivery dates shall be prepared. Due to
the complexities of systems integration, these dates shall not necessarily be simply an extension based on the
duration of time lost due to the reason for the delay.
7. Taxes: Unless otherwise stated, the prices stated herein do not include any federal, state, county, local or other taxes levied on the work and/or
material furnished, their use or sale, or on this agreement by anyjudsdiction either inside or outside of the United States. Such taxeswhere FAI is
required by law to collect them, whether designated as sales tax, use tax, gross receipts tax, occupation tax, etc., will be billed to Purchaser based
on the law in effect at the time of delivery, unless Purchaser furnishes FA with a proper tax exemption or similar certificate. Purchaser shall
reimburse FAI for any state, county or local property taxes respecting the work and /or material furnished, imposed, assessed, billed or becoming
due and payable by FAI on or after the date such work and/or material are furnished pursuant to the terms of this Agreement.
• Page 3
Apnl 17, 2014
8. TitlelMaterials and FAI's Engineering: Title to the work, described goods and/or material furnished shall pass to Purchaser only upon receipt by
FAI of payment for said items. Purchaser hereby grants to FAI a security interest on all of Purchasers property in possession of FAI to secure
payment of all amounts owed by Purchaser, its subsidiaries and affiliates, whether pursuant to this Contract a otherwise. FAI may withhold
delivery of any items, Purchasers equipment, and/or materials in the event any invoices from FAI to Purchaser, its subsidiaries or affiliates, are past
due. Upon payment to the terns of Purchaser's Purchase Order or Agreement with FAI, all source code developed by FAI will be provided to
Purchaser, as well as legal title to software developed for internal, direct application uses by Purchaser only. Purchaser may not provide
engineering or software provided by FAI to any other entity, for any purpose, without prior consent by FAI.
9. Title/FAI Software: "Custom" or "Purchaser Specific" software is that which is configured ordeveloped by FAI specifically under contractto
Purchaser. Limited Title to and source code fa these software constructs will be provided to Purchaser upon satisfactory completion of all
compensation to limits specified in Purchasers Purchase Orden(s) or Agreement(s). Title for these software constructs is limited to internal, direct
application uses by Purchaser only. Purchaser has rights to operate these software constructs indefinitely for any internal purpose and may
replicate the software at will for all internal purposes, including installation/operation of software at multiple sites
10. Additional Costs: Purchaser agrees to reimburse FAI for any additional costs attributable to changes in the specifications, directions, basic
materials furnished under these Terns and Conditions which are requested or approved by Purchaser, in writing, which changes are accepted by
FAI, with such additional costs to be at FAI stated or quoted prices in effect at the time such changes are accepted by FAI.
11. Risk of Loss or Damage in transit FAI responsibility for damage to or loss of Purchasers equipment, items purchased and /or the work or
material furnished under these Terns and Conditions ceases when FAI delivers same to Purchaser or Purchasers representative or Purchasers
shipping entity. FAI retains responsibility for damage to or loss of Purchasers equipment only when shipping was contracted by or delivery was
provided by FAI.
12. Acceptance and Applicable Law: No order for equipment or services shall be binding upon FAI until accepted by a writing of an authorized
official of FAI or by shipment or other performance of such order. Any such order shall be subject to the terms contained herein. This Contract
shall be governed by the laws of the State of California and Purchaser specifically consents to the jurisdiction of the Orange County, California
Municipal and Superior Courts.
13. Variations in Performance: Except in the particulars specified by Purchaser and expressly agreed to in writing by FAI, the goods, work and
material furnished under these Terms and Conditions shall be provided in accordance with FAI standard practices and specification.
to be included in a contract of this type by any applicable law or administrative
)orated herein.
16. Limitation for Loss or Damage to Equipment in Possession of FAI: FAI shall bear the risk of loss to Purchasers equipment while it is in
possession of FAI to the extent of FAI's insurance as documented in certificate to be provided to Purchaser prior to receiving equipment.
17. Approval of Materials for Purchase by FAI: Purchaser shall approve Materials Specifications provided by FAI prior to purchase of materials by
FAI.Once FAI has purchased an item, whether received or not, after approval of the Materials Spedfication by Purchaser, Purchaser is bound to
either pay for the item upon receipt at FAI (or other arrangement if specifically negotiated) or request that the item be returned to the supplier, in
which case Purchaser is liable for all restocking charges which may apply, as well as all costs bome by FAI in retumirg the item. FAI's liability to
supplier is limited to the costs to receive the items as specified in the Materials Specifications approved by Purchaser.
18. Inspection of Materials by FAIIPurchaser (at FAI): FAI shall inspect the Purchasers goods at time of receipt at FAI and will provide a Receiver
documenting the receipt of goods in working condition within seven (7) days of receipt of goods. Purchaser may also inspect goods at Purchasers
discretion. Except for defects or noncompliance which would not be discoverable upon such reasonable inspection, Purchaser shall be deemed to
have waived any claims for defects or noncompliance unless Purchaser reports same, in writing, to FAI within seven (7) days from data of receipt of
Receiverdocument from FAI.
• Page 4
April 17, 2014
19. Supporting Documents on Time and Material Contracts: Unless the contract is a time and material contract, FAI shall not be required to fumish
supporting documents or proof of expenditures to Purchaser.
20. Return Policy: All sales are final except for goods specifically designated as "subject to Buyers approval." Goods sold "subject to Buyers
approval" may be returned for credit only on the following conditions: (1) Buyer requests FAI return authorization within thirty (30) days of delivery
of the goods; (2) The goods are damaged; (3) FAI issues a return erihorizabon to Buyer and Buyer retums the goods to FAI, freight prepaid,
within ten (10) days of issuance of the return authorization; and (4) All returned goods are subject to a 25 %of cost of the goads return and re-
stocking charge. Sales tax will be refunded but no refund is applicable to freight or other transportation charges.
21. Substitutes: FAI may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental
authority or non-availability of materials from suppliers, and assumes no liability for deviation from suppliers, and assumes no liability for deviation
from published dimensions and descriptive inform Pion not essential to proper performance of the product
22. Patents: As to any goods or engineering proposed and furnished by FAI. FAI shall defend any suit or proceeding brought against Purchaser so
far as based on a claim that said goods or engineering constitutes an infringement of any patent of the United States, if notified promptly in writing
and given authority, information, and assistance at FAI expense for the defense of the same. In event of a final award of costs and damages, FAI
shall pay such award. In event the use of said goods or engineering by Purchaser is enjoined in such a suit, FAI shall, at its own expense, either
(a) procure for Purchaser the right to continue using said equipment or engineering, (b) modify said equipment or engineering to render it non -
infinging, (c) replace said equipment or engineering with non-infringing equipment, or (d) refund the purchase price (less depreciation) and the
transportation and installation costs of said equipment. FAI will not be responsible for any compromise or settlement made without its consent.
The foregoing states the entire liability of FAI for patent infringement, and in no event shall FAI be liable if the infringement charge is based on the
use of FAI equipment or engineering for a purpose other than that for which sold by FAI. As to any equipment or engineering furnished by FAI to
Purchaser and manufactured in accordance with designs proposed by Purchaser, Purchaser shall indemnify FAI against any award made against
FAI for patent, trademark, or copyright infringement
• Page 5
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, one million dollars ($1,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract) with
no endorsement or modification limiting the scope of coverage for liability
assumed under a contract.
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
Freedom Automation, Inc. Page C -1
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers
from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to provide
that City and its officers, officials, employees, and agents shall be included
as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self -
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along with
a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
Freedom Automation, Inc. Page C -2
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non - compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type.
E. Self- insured Retentions. Any self- insured retentions must be declared to
and approved by City. City reserves the right to require that self- insured
retentions be eliminated, lowered, or replaced by a deductible. Self -
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non - Compliance. If Consultant or any subconsultant
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Consultant's right to proceed until
proper evidence of insurance is provided. Any amounts paid by City shall,
at City's sole option, be deducted from amounts payable to Consultant or
reimbursed by Consultant upon demand.
G. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
Freedom Automation, Inc. Page C -3
AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH FREEDOM AUTOMATION, INC.
FOR SCADA PROGRAMING SOFTWARE SUPPORT SERVICES
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, is
entered into as of this 31 day of August, 2009, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "CITY "), and FREEDOM AUTOMATION,
INC. a California Corporation whose address is 4035 Oceanside Blvd., Suite F42,
Oceanside, California, 92056 ( "CONSULTANT "), and is made with reference to the
following:
RECITALS:
A. On June 25, 2008, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "AGREEMENT ", for on -call
SCADA programming services.
B. CITY desires to enter into this AMENDMENT NO. 1 to extend the term of the
AGREEMENT to July 31, 2011.
C. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 1", as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of the AGREEMENT shall be extended to July 31, 2011.
2. COMPENSATION
City shall pay Contractor for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and shall be based on the
attached Schedule of Billing Rates (Exhibit A).
3. SERVICES TO BE PERFORMED
Contractor shall provide SCADA programming software support services
pursuant to this Amendment No. 1 and according to the Request to Extend On-
Call Professional Services Agreement dated July 22, 2009, attached hereto as
(Exhibit B).
4. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By:
nette.Bacemp,
Assistant City Attorney
ATTEST:
By:
4(
Le`ifani Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By- Ido-c
eor e Mh, - Z_
Utilities Director
CONS T 'NT:
FRE AUTO N, INC.
By:
(Corpor e Officer)
Title: CEO
Print Name: Dino Grillo
By: Gtc Liv
(Financial Officer)
Title: Vice President, COO/CFO
Print Name: Harvey Quintero
Attachments: Exhibit A — Schedule of Billing Rates
Exhibit B — Request to Extend On -Call Services Agreement
07/22/2009 01:11 7602316194 FREEDOM AUTOMATION PAGE 09
EN
Freedom Automation, Inc,
July 22, 2009
STANDARD HOURLY RATES FOR ENGINEERING SERVICES
Business Consulting & Systems Design:
Senior i:,onsultant
$150 /Hour
ConsuNint
$125 /Hour
Factory Automation Consulting $ Systems Design:
Senior l: onsultant
$150 /Hour
Consult-,.nt
S 125 /Hour
IT Support, Programming and Engineering:
Senior Design Services
$160 /Hour
Senior Programmer
$140 /Hour
Programmer $120 /Hour
Senior Engineering Support $140/Hour
Engineering Support $ 120 /Hour
Other:
CAD Services
$ 75 /Hour
IT Technician
$120/Hour
Electrical Technician
$ 80 11-lour
Travel
$ 80 11-lour
Hourly charges will be billed weekly, portal to portal at the appropriate engineering rate, including mileage at
$.51 1m1l r. or travel time. Other reimbursable expenses will be billed as incurred.
Two (2) Dour minimum charge applies to all service calls.
Time ow!r 8 hours a day on -site is billed at 1.5 times regular hourly rate.
Time over 12 hours a day on -site is billed at 2.0 times regular hourly rate.
Sixth an, seventh consecutive days on -site are billed at 1.5 times regular hourly rate for the first eight hours and 2.0
times re; ular hourly rate after the first eight hours.
Also not: that FAI provides services on a Fixed Cost basis when the scope of work is well defined, and engineering
estimatE :, can be developed. Fixed Cost projects are often provided at the equivalent of a reduced hourly rate.
Prices er'ective through July 31, 2011.
• Page 2
07/22 ?2009 01:11 7602316194
J illy 22, 2009
FREEDOM AUTOMATION
Freedo I Anternntion, Inc,
"Proyidifrg �4i,Yy�le Solr�rions To Complex .Problems-
t: ity of Newport Beach
Utilities Department
A tn: Cindy Asher
3300 Newport Blvd.
Pdewport Beach,CA92658-8915
FZ E: PSA Amendment
Dear Ms. Asher,
Freedom Automation, Inc. (FAI)
Professional Services Agreemel
However, we will be able to horn
would like to extend for an additi
Elest
?)'ino Grillo
F-'-esident / CE
Fieedom Automation, Inc,
7(50.908.3568 mobile
F 2009 -10 Rate Sheet
PAGE 02
1 � 1
►ould like to request an extension to our existing
for a minimum of one additional year.
our current rates until July 31, 2011 if the city
nal year.
Freedom Automation, Inc. — 40A Oceanside BLVD, Suite F42, Oceanside, CA, 92056
Mail To: P.O U4x 5416, Oceanside, CA, 92052 -5416
(760) 630 -4100 — (760) 639 -4102 fax
Lie C10- 839567
ME
PROFESSIONAL SERVICES AGREEMENT WITH
FREEDOM AUTOMATION, INC. FOR ON -CALL
SCADA PROGRAMMING SOFTWARE SUPPORT SERVICES
THIS AGREEMENT is made and entered into as of this day of June,
2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and FREEDOM AUTOMATION, INC., a California corporation whose address
is 4035 Oceanside Blvd., Suite F42, Oceanside, California 92056 ( "Contractor "), and is
made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City has a need for on -call assistance to provide programming support for the
City's SCADA system.
C. City desires to engage Contractor to provide programming support for
Supervisory Control & Data Acquisition ( SCADA) system devices including
Human Machine Interface (HMI), Programmable Logic Controllers (PLC) and
panel mount units.
D. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal members of this firm for purposes of contact shall be Dino Grillo.
F. City has solicited and received a proposal from Contractor, has reviewed the
previous experience and evaluated the expertise of Contractor, and desires to
retain Contractor to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
Parties as follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 1S day of July, 2009, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Contractor shall provide "On -Call" generator maintenance and repair services as
described in the Statement of Qualifications attached as Exhibit "A." Upon
Contractor shall provide "On -Call" generator maintenance and repair services as
described in the Statement of Qualifications attached as Exhibit "A." Upon
verbal or written request from the Project Administrator, Contractor shall provide
a letter proposal for services requested by the City (hereinafter referred to as the
"Letter Proposal "). The Letter Proposal shall include the following:
A. A detailed description of the services to be provided;
B. The position of each person to be assigned to perform the services, and
the name of the individuals to be assigned, if available;
C. The estimated number of hours and cost to complete the services; and
D. The time needed to finish the specific project.
No services shall be provided until the Project Administrator has provided written
acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall
diligently perform the duties in the approved Letter Proposal.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Contractor to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Contractor shall not be responsible for delays due
to causes beyond Contractor's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The
Project Administrator shall review all such requests and may grant
reasonable time extensions for unforeseeable delays that are beyond
Contractor's control.
3.2 For all time periods not specifically set forth herein, Contractor shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONTRACTOR
City shall pay Contractor for the services on a time and expense not -to- exceed
basis, in accordance with the provisions of this Section and the Schedule of
E
Billing Rates attached hereto as Exhibit "B" and incorporated herein by
reference.
No rate changes shall be made during the term of this Agreement without the prior
written approval of the City. Contractor's compensation for services performed in
accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as
approved by the Project Administrator. Any Letter Proposal that sets forth fees in
excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a
separate Professional Service Agreement approved by per Council Policy F -14.
4.1 Contractor shall submit monthly invoices to City describing the work
performed the preceding month. Contractor's bills shall include the name
of the person and /or classification of employee who performed the work, a
brief description of the services performed and /or the specific task in the
letter proposal to which it relates, the date the services were performed,
the number of hours spent on all work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Contractor
no later than thirty (30) days after approval of the monthly invoice by City
staff.
4.2 City shall reimburse Contractor only for those costs or expenses
specifically approved in the Letter Proposal. Unless otherwise approved,
such costs shall be limited and include nothing more than the following
costs incurred by Contractor:
A. The actual costs of subconsultants for performance of any of the
services that Contractor agrees to render pursuant to this
Agreement and the Letter Proposal, which have been approved in
advance by City and awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Contractor in the
performance of this Agreement.
4.3 Contractor shall not receive any compensation for Extra Work without the
prior written authorization of City. As used herein, "Extra Work" means
any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the Letter
Proposal and which the parties did not reasonably anticipate would be
necessary. Compensation for any authorized Extra Work shall be paid in
accordance with the Schedule of Billing Rates set forth in Exhibit B.
5. PROJECT MANAGER
3
Contractor shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Contractor has designated Dino Grillo to be its
Project Manager. Contractor shall not remove or reassign the Project Manager
or any personnel listed in Exhibit A or assign any new or replacement personnel
to the Project without the prior written consent of City. City's approval shall not
be unreasonably withheld with respect to the removal or assignment of non -key
personnel.
Contractor, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Contractor warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
If Contractor is performing inspection or construction management services for
City, the Project Manager and any other assigned staff shall be equipped with a
Nextel Plus type cellular /direct connect unit to communicate with City staff.
Consultant's Nextel Direct Connect I.D. number will be provided to City to be
programmed into City Nextel units, and vice versa.
6. ADMINISTRATION
This Agreement will be administered by the Utilities Department. George
Murdoch shall be the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or his /her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Contractor in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Contractor, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Contractor's
work schedule.
B. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
2
8.1 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City, nor
have any contractual relationship with City. By delivery of completed
work, Contractor certifies that the work conforms to the requirements of
this Agreement and all applicable federal, state and local laws and the
professional standard of care.
8.2 Contractor represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Contractor to practice its profession.
Contractor further represents and warrants to City that Contractor shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Contractor to practice its profession.
Contractor shall maintain a City of Newport Beach business license during
the term of this Agreement.
8.3 Contractor shall not be responsible for delay, nor shall Contractor be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Contractor's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
8.4 The term Construction Management or Construction Manager does not
imply that Contractor is engaged in any aspect of the physical work of
construction contracting. Contractor shall not have control over or be in
charge of and shall not be responsible for the project's design, City's
project contractor ( "Contractor "), construction means, methods,
techniques, sequences or procedures, or for any health or safety
precautions and programs in connection with the work. These duties are
and shall remain the sole responsibility of the Contractor. Contractor shall
not be responsible for the Contractors' schedules or failure to carry out the
work in accordance with the contract documents. Contractor shall not
have control over or be responsible for acts or omissions of City, Design
Engineer, Contractor, Subcontractors, or their Agents or employees, or of
any other persons performing portions of the work.
9. HOLD HARMLESS
5
To the fullest extent permitted by law, Contractor shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties ") from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work performed or
services provided under this Agreement including, without limitation, defects in
workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent and /or willful acts, errors and /or omissions of
Contractor, its principals, officers, agents, employees, vendors, suppliers,
consultants, subcontractors, anyone employed directly or indirectly by any of
them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Contractor.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Contractor on an independent contractor basis
and Contractor is not an agent or employee of City. The manner and means of
conducting the work are under the control of Contractor, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Contractor or any of Contractor's employees or agents, to be the agents or
employees of City. Contractor shall have the responsibility for and control over
the means of performing the work, provided that Contractor is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Contractor as to the details of the performance or to
exercise a measure of control over Contractor shall mean only that Contractor
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Contractor on the Project.
It
12. CITY POLICY
Contractor shall discuss and review all matters relating to policy and project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Contractor is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the work, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of work, Contractor shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Contractor shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City's at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
1. Workers' Compensation Coverage. Contractor shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
7
the State of California. In addition, Contractor shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Contractor for City.
2. General Liability Coverage. Contractor shall maintain commercial
general liability insurance in an amount not less than two million
dollars ($2,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
3. Automobile Liability Coverage. Contractor shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Contractor arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
4. Professional Errors and Omissions Insurance. Contractor shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
1. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Contractor.
2. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Contractor's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
3. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
4. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
5. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
6. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Contractor's performance under this Agreement.
G. Additional Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Contractor, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Contractor is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Contractor. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
9
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Contractor. Assignments of any or all rights, duties or obligations of the
Contractor under this Agreement will be permitted only with the express written
consent of City. Contractor shall not subcontract any portion of the work to be
performed under this Agreement without the written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Contractor, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Contractor or any other party. Contractor shall, at Contractor's
expense, provide such Documents to City upon written request.
Documents, including drawings and specifications, prepared by Contractor
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed documents
for other projects and any use of incomplete documents without specific written
authorization from Contractor will be at City's sole risk and without liability to
Contractor. Further, any and all liability arising out of changes made to
Contractor's deliverables under this Agreement by City or persons other than
Contractor is waived against Contractor and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Contractor written consent for such changes.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes the release of information.
19. OPINION OF COST
Any opinion of the construction cost prepared by Contractor represents his
judgment as a design professional and is supplied for the general guidance of
City. Since Contractor has no control over the cost of labor and material, or over
competitive bidding or market conditions, Contractor does not guarantee the
accuracy of such opinions as compared to contractor bids or actual cost to City.
10
20. RECORDS
Contractor shall keep records and invoices in connection with the work to be
performed under this Agreement. Contractor shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Contractor to this Agreement. All such records shall be
clearly identifiable. Contractor shall allow a representative of City to examine,
audit and make transcripts or copies of such records during regular business
hours. Contractor shall allow inspection of all work, data, documents,
proceedings and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
21. WITHHOLDINGS
City may withhold payment of any disputed sums until satisfaction of the dispute
with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Contractor
shall not discontinue work as a result of such withholding. Contractor shall have
an immediate right to appeal to the City Manager or his designee with respect to
such disputed sums. Contractor shall be entitled to receive interest on any
withheld sums at the rate of return that City earned on its investments during the
time period, from the date of withholding of any amounts found to have been
improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Contractor which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Contractor, the additional design, construction and /or
restoration expense shall be borne by Contractor. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Contractors in connection with the Project.
24. CONFLICTS OF INTEREST
The Contractor or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
11
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Contractor shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Contractor shall indemnify and hold harmless City for
any and all claims for damages resulting from Contractor's violation of this
Section.
25. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Contractor to City shall be addressed to City at:
George Murdoch
Utilities Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92658 -8915
Phone: 949 - 644 -3011
Fax: 949 - 646 -5204
All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Dino Grillo
Freedom Automation, Inc.
P.O. Box 5416
Oceanside, CA 92052 -5416
Phone: 760- 639 -4100
Fax: 760- 639 -4102
26. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
12
Notwithstanding the above provision, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days' prior written notice to Contractor. In the event of
termination under this Section, City shall pay Contractor for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Contractor has not been previously paid. On the effective date of termination,
Contractor shall deliver to City all reports and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
27. COMPLIANCE WITH ALL LAWS
Contractor shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Contractor shall conform to applicable City,
county, state and federal laws, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the Parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
30. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
31. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Contractor and City and approved as to form by the City
Attorney.
32. SEVERABILITY
13
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
33. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
34. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
35. EQUAL OPPORTUNITY EMPLOYMENT
Contractor represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
`CI
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By: z 0.1---
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
By:
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corpor4fiion
In
Steve`MI ft&
Utilities Director
for the City of Newport Beach
CONS NT:
Title: t
Print Name: J) WD ( "7 Z (( D
(Financial Officer)
Title:
Print Name:
Attachments: Exhibit A — Statement of Qualifications
Exhibit B — Schedule of Billing Rates
IM
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By : ,, C _ ff �----
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
CC
AN
Steve Myrter,
Utilities Director
for the City of Newport Beach
Title: CAO
Print Name: A4-1> l?C /c.. a T Balm e4 H
Attachments: Exhibit A — Statement of Qualifications
Exhibit B — Schedule of Billing Rates
15
Freedom Automation, Inc.
"Prov%divi,,� simple soL, ttiovus to CovvpLex T>robLems"
Freedom Automation, Inc. — P.O Box 5416, Oceanside, CA 92052 -5416
(760) 639 -4100 tel — (760) 639 -4102 fax
www,freedomautomation. corn
Freedom Automation, Inc.
"Providing Simple Solutions To Complex Problems"
March 12, 2008
City of Newport Beach
Water Utilities Department
Freedom Automation, Inc. (est. April 2001) is a quality systems integrator with
experience in many different industries. Our team of process control, electrical and
software engineers provide the knowledge, training and experience to solve even the
most challenging automation and engineering problems.
In addition, FAI holds an Electrical Contractors License #838567 -C10. This enables us
to provide field engineering services for the electrical equipment onsite.
3µ6y1,
FAI Service rates are guaranteed until JantiRry 2009.
"Mission"
Our mission is to provide the highest quality product and services to our customers.
To provide the right solution to the problem utilizing proven, up to date technology
and engineering techniques. Through constant rigor and formality will provide
unparalleled customer service and support.
Capabilities
4 System Engineering and Automation Consultation
► System Design Consultation
10 System Analysis
PLC Programming (AB, GE, Modicon, OPTO 22 ...)
* HMI Development and Programming (RSView32, Wonderware ...)
O State of the Art Graphics and Navigation
Freedom Automation, Inc. — 4035 Oceanside BLVD, Suite F42, Oceanside, CA 92056
Mail To: P.O Box 5416, Oceanside, CA 92052 -5416
(760) 639 -4100 — (760) 639 -4102 fax
www.freedomautomati on.eom
Cal.Lic.# 838567 -C10
-1-
Freedom Automation, Inc.
"Providing Simple Solutions To Complex Problems"
• Custom Reporting
• Reliable Redundancy
O Telephonic Alarm /Status Systems
Database Design and Implementation (SQL, Oracle, Access ...)
O Real Time Data for Control
• Historical / Real Time Data Reporting
• Statistical Process Control (SPC)
Custom Software Development (C, C + +, VB, JAVA, ActiveX ...)
O Drivers and Interface Applications
O Windows Applications
OHistorical Data Reporting
WEB Based Applications
-- Network Design, Implementation and Troubleshooting
Motion Control
O Servo Control Systems
O Stepper Applications
Barcoding Applications
Process Control
Technical Training
Field Engineering Support
24 Hour Emergency Service
Freedom Automation, Inc. — 4035 Oceanside BLVD, Suite F42, Oceanside, CA 92056
Mail To: P.O Box 5416, Oceanside, CA 92052 -5416
(760) 639 -4100 — (760) 639 -4102 fax
www.freedomautomatioii.com
Cal.Lic.# 838567 -C10
-2-
May 23, 2008
11 EXHIBIT 11811
Freedom Automation, Inc.
STANDARD HOURLY RATES FOR ENGINEERING SERVICES
Business Consulting & Systems Design:
Senior Consultant
$ 150 /Hour
Consultant
$ 125 /Hour
Factory Automation Consulting & Systems Design:
Senior Consultant
$ 150 /Hour
Consultant
$ 125 /Hour
IT Support, Programming and Engineering:
Senior Design Services
$ 160 /Hour
Senior Programmer
$ 140 /Hour
Programmer
$120 /Hour
Senior Engineering Support $140 /Hour
Engineering Support $120/Hour
Other:
CAD Services $ 75 /Hour
IT Technician $120 /Hour
Electrical Technician $ 80 /Hour
Travel $ 80/Hour
Hourly charges will be billed weekly, portal to portal at the appropriate engineering rate, including mileage at
$.51 /mile or travel time. Other reimbursable expenses will be billed as incurred.
Two (2) hour minimum charge applies to all service calls.
Time over 8 hours a day on -site is billed at 1.5 times regular hourly rate.
Time over 12 hours a day on -site is billed at 2.0 times regular hourly rate.
Sixth and seventh consecutive days on -site are billed at 1.5 times regular hourly rate for the first eight hours and 2.0
times regular hourly rate after the first eight hours.
Also note that FAI provides services on a Fixed Cost basis when the scope of work is well defined, and engineering
estimates can be developed. Fixed Cost projects are often provided at the equivalent of a reduced hourly rate.
Prices effective through July 01, 2009.
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