HomeMy WebLinkAboutBadger Meter Inc; 2012-06-06; UTIL864UTIL864
ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR DOMESTIC SERVICE COLD WATER METER PURCHASES
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") is made and
entered into this ,;1.1~ day of f!fr-cX.-2016, by and between the
CARLSBAD MUNICIPAL WATER DISTRICT, Public Agency orgamzed under the Mun1c1pal Water Act
of 1911, and a Subsidiary District of the City of Carlsbad ("CMWD"), BADGER METER, INC., a Wisconsin
corporation, ("Assignor"), and NATIONAL METER AND AUTOMATION, INC. ("National Meter"), a
Colorado corporation, ("Assignee"), and is made with reference to the following facts:
RECITALS
A On June 6, 2012, the CMWD and Assignor entered into that certain Professional
Services Agreement concerning Domestic Service Cold Water Meter Purchases, (the "Agreement").
B. Paragraph 22 of the Agreement allows Assignor to assign rights and obligations under the
Agreement upon written approval of CMWD.
C. Assignor desires to assign its interest in the Agreement to Assignee. Further, Assignee
desires to accept assignment of Assignor's interest in the Agreement and CMWD consents to the
assignment of the interest in the Agreement from Assignor to Assignee.
NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and
obligations set forth herein, the parties hereto agree as follows:
'1. Assignment. Assignor hereby assigns to Assignee all of Assignor's rights and obligations
as set forth in the Agreement.
~~-Assumption. Assignee hereby assumes all of Assignor's rights and obligations as set
forth in the Agreement.
:~. CMWD Consent. CMWD hereby agrees and consents to the assignment of all of
Assignor's rights and obligations as set forth in the Agreement to Assignee.
4. General Terms and Conditions. The following general terms and conditions shalt apply to
this Assi!~nment Agreement.
4.1 Hold Harmless. In addition to the hold harmless prov1s1ons contained within the
Agreement, Assignee agrees to indemnify and hold harmless the Carlsbad Municipal Water District
(CMWD) and its officers, officials, employees and volunteers from and against all claims, damages,
losses and expenses including attorneys fees arising out of this Assignment Agreement caused by the
willful misconduct, or negligent act, or omission of the Assignee.
4.2. Counterparts. This Assignment Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which, together, shall constitute one and the same
instrument.
4.3. Successors and Assigns. It is mutually understood and agreed that this Assignment
Agreement shall be binding upon CMWD, Assignor and Assignee and their respective successors.
Neither this Assignment Agreement or any part hereof nor any monies due or to become due hereunder
may be assigned by Assignee without the prior consent of CMWD.
4.4. Governing Law. This Assignment Agreement shall be governed by, interpreted under,
and construed and enforced in accordance with, the laws of the State of California.
General Counsel Approved Version 1/21/15
UTIL864
4.5. Venue. Any action at law or in equity brought by either of the parties hereto for the
purpose of enforcing a right or rights provided for by this Assignment Agreement shalt be tried in a court
of competent jurisdiction in the County of San Diego, State of California, and the parties hereby waive all
provisions of law providing for a change of venue in such proceedings to any other county.
4.6. Notices. Service of any notices, bills, invoices or other documents required or permitted
under this Assignment Agreement shall be sufficient if sent by one party to the other by United States
mail, postage prepaid and addressed as follows:
CMWD:
Assignor:
Assignee:
Public Works -Utilities
Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, CA 92008
Badger Meter, Inc.
4545 W. Brown Deer Road
Milwaukee, WI 53223
National Meter and Automation, Inc. (National Meter)
7220 S. Fraser Street
Centennial, CO 80112
4. 7. Nondiscrimination. During the term of this Assignment Agreement, the parties shall
comply with the state and federal laws regarding non-discrimination.
4.8 Authority. The parties executing this Assignment Agreement on behalf of CMWD,
Assignor and Assignee each represent and warrant that they have the legal power, right and actual
authority to bind CMWD, Assignor and Assignee, respectively, to the terms and conditions hereof.
4.9 Severability. Each provision, term, condition, covenant, and/or restriction, in whole and in
part, in this Assignment Agreement shall be considered severable. In the event any provision, term,
condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement is declared
invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this
Assignment Agreement and shall not affect any other provision, term, condition, covenant, and/or
restriction, of this Assignment Agreement and the remainder of this Assignment Agreement shall continue
in full force and effect.
4.10 Effective Date. This Assignment Agreement shall be effective upon the date and year first
above written.
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ASSIGNOR
BADGER METER, INC., a Wisconsin
corporation
By:
By:
(sign here)
Richard E. Johnson I
Sr. V1ice President, CFO & Treasurer
(print name/title)
(sign here)
Theresa M. Szafranski I Asst. Secretary
(print name/title)
ASSIGNEE
NATIONAL METER AND AUTOMATION,
INC., a Colorado corporation
By:
(sign here)
(print name/title)
By:
(sign here)
(print name/title)
UTIL864
CARLSBAD MUNICIPAL WATER DISTRICT, a
Public Agency organized under the Municipal
Water Act of 1911, and a Subsidiary District of theQ:;:_
By:
Kathryn B. Dodson I
Assistant Executive Manager
ATTEST:
Secretary
( · here)
Theresa M. Szafranski I Asst. Secretary __
(print name/title)
If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. 1.f..E.
Corporation, Agreement must be signed by one corporate officer from each of the following two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under
corporate seal empowering the officer(s) signing to bind the corporation.
3 General Counsel Approved Version 1/21/15
ASSIGNOR
By:
Richar . Johnson I
Sr. Vice President, CFO & Treasurer
(print name/title)
Theresa M. Szafranski I Asst. Secretary
(print name/title)
ASSIGNEE
NATIONAL METER AND AUTOMATION,
INC., a Colorado corporation
By:
(sign here)
70 rlar{l A. /Jltt'tUe/1 fJ(/_; ·, ck d
(print name/title)
By:
{sign here) ·J
UTIL864
CARLSBAD MUNICIPAL WATER DISTRICT, a
Public Agency organized under the Municipal
Water Act of 1911, and a Subsidiary District of
the Ci arlsbad
By:
ATTEST:
Secretary
dcl 1u\'J.y' i. j; s~],tL(.;·Y, 11(.;;,/i~·,;·jk/11-
r(print name/title) ~7
If required by CMWD, proper notarial acknowledgment of execution by contractor must be attached. !f...§
Corporation, Agreement must be signed by one corporate officer from each of the following two groups.
•·Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under
corporate seal empowering the officer(s) signing to bind the corporation.
3 General Counsel Approved Version 1/21/15
UTIL864
APPROVED AS TO FORM:
CELIA A. BREWER, General Counsel
By:
Deputy General Counsel
4 General Counsel Approved Version 1/21/15
~ NATIQNAL
METER AND AUTOMATION, INC.
7220 S Fraser St, Centennial, CO 80112 Tel: (303) 339-9100 Fax: (303) 649-1017
CERTIFICATION
OF SIGNATURE AUTHORITY
I certify as follows:
By an annual Board Resolution adopted by the Board of Directors ofNational Meter &
Automation, Inc. and in full force and effect as of this date, the company officers listed below, be
and are hereby authorized to appoint such person or persons as they shall deem appropriate to
execute, amend, and cancel, in the name ofNational Meter & Automation, Inc., bids and
contracts for the sale of products, distributor or representative agreements, bid bonds surety
bonds, contracts, leases and certain other legally binding documents in the ordinary course of
business.
1. President
2. Vice President
3. Secretary
4. Treasurer
The above company officers granted Theresa M. Szafranski, Rebecca L. Loomans, Thomas M.
Braxton, Jr., Noel W. Frakes and Frank J. Milliron the authority to execute bids, bid-related
contracts and documents, requests for proposals and quotes, and all other related documentation
on behalf of National Meter & Automation, Inc.
Date
~,!(./{.~
William R. A. Bergum
April11, 2016
Secretary
National Meter & Autcmation, Inc.
CALIFORNIA NOTARY IN CORPORATE FORM
STATE OF WISCONSIN )
COUNTY OF MILWAUKEE) ss
On March 29, 2016, before me, Kyle J. Lockwood, Notary Public, personally appeared Richard
E. Johnson, Senior Vice President-Finance, CFO and Treasurer and Theresa M. Szafranski,
Assistant Secretary of Badger Meter, Inc. and Richard A. Meeusen, President and Beverly L.P.
Smiley, Vice President of National Meter and Automation, Inc. who proved to me on the basis of
satisfactory evidence to be the persons whose name is subscribed to the within instrument and
acknowledged to me that they executed the same in their authorized capacity, and that by their
signature( s) on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
Witness my hand and official seal.
M /Atf My Commission Expires: /F /It v /
I
~ Badger Meter
. '., ..
CERTIFICATION
OF SIGNATURE AUTHORITY
I certify as follows:
By an annual Board Resolution adopted by the Board of Directors of Badger Meter, Inc. and in
full force and effect as of this date, the company officers listed below, be and are hereby
authorized to appoint such person or persons as they shall deem appropriate to execute, amend,
and cancel, in the name of Badger Meter, Inc., bids and contracts for the sale of products,
distributor or representative agreements, bid bonds, surety bonds, contracts, leases and certain
other legally binding documents in the ordinary course of business.
1. Chairman, President and Chief Executive Officer
2. Sr. Vice President--Finance, Chief Financial Officer and Treasurer
3. Vice President--General Counsel and Secretary
The above company officers granted Theresa M. Szafranski and Rebecca L. Loomans the
authority to execute bids, bid-related contracts and documents, requests for proposals and quotes,
and all other related documentation on behalf of Badger Meter, Inc.
03/:29/2016
Date
BY:
14/1/UiA. ,f. .tf. ~ William R. A. Bergum,
Vice President-General Counsel & Secretary
Badger Meter, Inc.
UN~OUS~TTENCONSENT
OF
THE.BOARD OF DIRECTORS
OF
NATIONAL METER & AUTOMATION; INC.
The undersigned, ·being the Board of Directors ofNatiomil Meter & Automation, Inc., a
Colorado corporation (the "Company"), acting pursuant to the Company's bylaws and Section
1 08•202 of the Colorado Revised Statutes, does hereby adopt ihe following resolutions by .
written consent in lieu of a meeting of the Board of Directors, such action to have ihe same effect
as if taken at a du1y constituted meeting of the Board of Directors held on the 31st day of August,
2015.
l. _Waiver ofNotice.
NOW, THEREFORE, BE IT RESOLVED, ihat an:Y and all notice t<hake any action in
adopting the following resolutions is ·hereby wlrlved qy ihe undersigned pursuant to Section 108-
204 of the Colorado Revised Statutes.
2. Appointment of Officers.
-NOW, THEREFORE, BE IT RESOLVED, that the Board ofDirectors hereby.elects:
1) Kiniberly K .Stoll as a Vice President to serve along with the previously-elected Elected
Officers; and2) the Appointed Officers (who can obligate the compan,y according to applicable
policies and procedures) until the next annual meeting of the Board of Directors and until the
election and qualification of their respective successors, shall be as follows:
_Elected NMAAI Officers:
Elected under this Resolution:
Kimberly K. Stoll
.Previously Elected:
Richard A. Meeusen
Bevedy L. P. Smiley
William R.A. Bergum
.Richard E. Johnson
Vice President
President
Vice President
Secretary
Treasurer
Ap_pointed NMAAI Officers:
Noel W. Frakes
Fratik.J. Milliron
Thomas M. Braxton, Jr.
TheresaM. Szafranski
Rebecca L. Loomans
Director of Sales & Assistant Secretary
Director of Operations & Assistant Secretary ·
Assistant Secretary
Assistant Secretary
Assistant Secretary
IN WITNESS WHEREOF, this instrument has been executed by the undersigned as of
the aforementioned date to be filed as part of the Company's minutes.
BOARD OF DIRECTORS
William R. A. Ber~ ',
·~w~
Beverly L. P.Z"miley · t:f"
" NATIQNAL
METER AND AUTOMATION, INC.
7220 S Fraser St, Centennial, CO 80112 Tel: (303) 339-9100 Fax: (303) 649-1017
CERTIFICATION
OF SIGNATURE AUTHORITY
I certify as follows:
By an annual Board Resolution adopted by the Board of Directors ofNational Meter &
Automation, Inc. and in full force and effect as of this date, the company officers listed below, be
and are hereby authorized to appoint such person or persons as they shall deem appropriate to
execute, amend, and cancel, in the name of National Meter & Automation, Inc., bids and
contracts for the sale of products, distributor or representative agreements, bid bonds surety
bonds,. contracts, leases and certain other legally binding documents in the ordinary course of
business.
1. President
2. Vice President
3. Secretary
4. Treasurer
The above company officers granted Theresa M. Szafranski, Rebecca L. Loomans, Thomas M.
Braxton, Jr., Noel W. Frakes and Frank J. Milliron the authority to execute bids, bid-related
contracts and documents, requests for proposals and quotes, and all other related documentation
on behalf of National Meter & Automation, Inc.
Date
~,(./(.~
William R. A. Bergum
April11,2016
Secretary
National Meter & Automation, Inc.
~ Badger Meter PO Box
September 30, 2014
Dear Valued Customer:
Badger Meter is proud to announce the addition ofNational Meter and Automation,
Inc. ("National Meter") to the Badger Meter family. Effective October 1, 2014, National
Meter will be owned 100% by Badger Meter. We are excited about this new partnership, as
it will provide you with faster delivery times from products in stock, as well as local sales,
technical and operational support services. The National Meter sales region includes
Arizona, California, Colorado, Wyoming, and parts of Hawaii and Nevada. Beginning
October 1, Lisa Engstrom, your current sales representative, will work directly with National
Meter to provide you with the customer service to which you have come to expect.
The staff at National Meter has over 200+ years of combined experience in the
utilities industry, specializing in metering and automated meter reading systems. They are
headquartered in Centennial, CO and have sales offices and warehouses in Santa Rosa,
California and Scottsdale, AZ. National Meter will also be opening an office/warehouse in
Southern California in the near future. Their company and contact information is listed on the
following page.
We want to thank you for your business and we look forward to continuing to serve
your metering needs.
Sincerely,
BADGER METER, INC.
0 0?/l..A.' ;' _,...
Torre TreecE:
Western Regional Manager
cc: Noel Frakes, National Meter Sales Director
Cindy Kransler, Director, Utility Sales, Badger Meter
Thomas Lindner, Sales Channel Manager
Kim Stoll, Vice President, Sales & Marketing, Badger Meter
Lisa Engstrom, Account Manager
'1\JATIQNAL
METER AND AUTOMATION, INC.
Badger Meter
Colorado Office (Corporate Headquarters)
7220 S Fraser St. Centennial, CO 80112
PO Box 5429, Greenwood Village, CO 80155-5429
Phone: 303-339-9100
Fax: 303-649-1017
Toll Free: 877-212-8340
Arizona Office
7777 E Paradise Ln, Suite 104 Scottsdale, AZ 85260
Phone: 480-596-8600
Fax: 480-596-8606
Toll Free: 855-246-8600
Cali(ornia Office
2250 Apollo Way, Suite 300, Santa Rosa, CA 95407
PO Box 8339, Santa Rosa, CA 95407
Phone: 707-575-0700
Fax: 707-575-3786
Toll Free: 877-348-0700
Wichita Office
1635 E 37th St. N, Suite 1, Wichita, KS 67219
Phone:316-821-9440
Fax: 316-821-9488
www.badgermeter.com
AMENDMENT NO. 3 TO EXTEND AND AMEND AGREEMENT FOR
DOMESTIC SERVICE COLD WATER METER PURCHASES
BADGER METER INC.
UTIL864
This Amendment No. 3 is entered into and effective as of the c:J s-11\ day of
Marc/-\ , 2015, extending and amending the agreement dated
June 6, 2012 (the "Agreement") by and between the Carlsbad Municipal Water District, a Public
Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of
Carlsbad, ("CMWD"), and Badger Meter Inc., a Wisconsin corporation ("Contractor") (collectively,
the "Parties").
RECITALS
A. On April 22, 2013, the Parties executed Amendment No. 1 to the Agreement to
extend and fund the Agreement for an additional one ( 1) year ending June 6, 2014; and
B. On May 13, 2014, the Parties executed Amendment No.2 to the Agreement to
extend and fund the Agreement for an additional one (1) year ending June 6, 2015; and
C. The Parties desire to alter the Agreement's scope of work to extend and fund the
Agreement for a period of one (1) year.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, CMWD and Contractor agree as follows:
1. That the Agreement, as may have been amended from time to time, is hereby
extended for a period of one (1) year ending on June 6, 2016 on a time and materials basis not-
to-exceed one million five hundred seventy three thousand one hundred twenty three dollars
($1 ,573, 123).
2. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor pursuant to the
Agreement, as may have been amended from time to time, will include coverage for this
Amendment.
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UTIL864
4. The individuals executing this Amendment and the instruments referenced in it on
behalf of Contractor each represent and warrant that they have the legal power, right and actual
authority to bind Contractor to the terms and conditions of this Amendment.
CONTRACTOR
BADGER METER INC., a Wisconsin
corporation
By:
Richard E. Johns n I Sr. Vice President
(print name/title)
Theresa M. Szafranski I Assistant Secretary
(print name/title)
CARLSBAD MUNICIPAL WATER
DISTRICT, a Public Agency organized
under the Municipal Water Act of 1911, and
a Subsidiary District of the City of Carlsbad
ATTEST:
·f3~C~~
BARBARA ENGLES~
Secretary
If required by CMWD, proper notarial acknowledgment of execution by contractor must be
attached. If a corporation, Agreement must be signed by one corporate officer from each of the
following two groups.
Group A
Chairman,
President, or
Vice-President
Group 8
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, General Counsel
General Counsel Approved Version 1/30/13
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UTIL864
EXHIBIT "A"
SCOPE OF SERVICES AND FEE
Prices below reflect a 2% increase by Badger Meter Inc. effective June 1, 2015 through May 31, 2016.
WATER METERS
5/8" x 3/4" x 7 1/2" Meter without connections
3/4" x 3/4" x 9" Meter without connections
3/4" x 3/4" x 7 1/2" Short meter without connections
1" x 10 3/4" Meter without connections
1 1/2" x 13" Flanged meter without connections
2" x 17" Flanged meter without connections
1 1/2" x 13" Turbine meter without connections
2" x 17" Turbine meter without connections
Bidder's Stated Delivery Time
32 days after receipt of order.
3
UNIT PRICE
$69.50
$101.18
$101.18
$125.68
$266.86
$394.31
$577.42
$602.39
General Counsel Approved Version 1/30/13
AMENDMENT NO. 2 TO EXTEND AND AMEND AGREEMENT FOR
DOMESTIC SERVICE COLD WATER METER PURCHASES
(BADGER METER INC.)
UTIL864
This Amendment No. 2 is entered into and effective as of the /3-*' day of
fVla.~ , 2014, extending and amending the agreement dated
June 6, 2012 (the greement") by and between the Carlsbad Mun1c1pal Water D1stnct, a Public
Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of
Carlsbad, ("CMWD"), and Badger Meter Inc., a Wisconsin corporation ("Contractor") (collectively,
the "Parties").
RECITALS
A. On April 22, 2013, the Parties executed Amendment No. 1 to the Agreement to
extend and fund the Agreement for an additional one ( 1) year ending June 6, 2014; and
B. The Parties desire to alter the Agreement's scope of work to extend and fund the
Agreement for a period of one (1) year.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, CMWD and Contractor agree as follows:
1. That the Agreement, as may have been amended from time to time, is hereby
extended for a period of one ( 1) year ending on June 6, 2015 on a time and materials basis not-
to-exceed one million five hundred seventy three thousand one hundred twenty three dollars
($1,573,123).
2. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor pursuant to the
Agreement, as may have been amended from time to time, will include coverage for this
Amendment.
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4. The individuals executing this Amendment and the instruments referenced in it on
behalf of Contractor each represent and warrant that they have the legal power, right and actual
authority to bind Contractor to the terms and conditions of this Amendment.
CONTRACTOR
BADGER METER INC., a Wisconsin
corporation
By:
Richard E. Johnson
Senior Vice President-
(sig re)
Theresa M. Szafranski, Assistant Secretary
(print name/title)
CARLSBAD MUNICIPAL WATER
DISTRICT, a Public Agency organized
under the Municipal Water Act of 1911,
and a Subsidiary District of the City of
Carlsbad
By:
For
PresieoAt, Executive Manager-or Diroetef
Kathryn B. Dodson
ATTEST:
Secretary
If required by CMWD, proper notarial acknowledgment of execution by contractor must be
attached. If a corporation, Agreement must be signed by one corporate officer from each of the
following two groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, General Counsel
General Counsel Approved Version 1/30/13
2
EXHIBIT "A"
SCOPE OF SERVICES AND FEE
DOMESTIC SERVICE COLD WATER METER PURCHASE
Prices below reflect a 2% increase by Badger Meter Inc. effective June 1, 2014 through May 31, 2015.
WATER METERS
5/8" x 3/4" x 7 1/2" Meter without connections
3/4" x 3/4" x 9" Meter without connections
3/4" x 3/4" x 7 1/2" Short meter without connections
1" x 10 3/4" Meter without connections
1 1/2" x 13" Flanged meter without connections
2" x 17" Flanged meter without connections
1 1/2" x 13" Turbine meter without connections
2" x 17" Turbine meter without connections
Bidder's Stated Delivery Time
32 days after receipt of order.
3
UNIT PRICE
$68.14
$99.20
$99.20
$123.22
$261.63
$386.58
$566.10
$590.58
General Counsel Approved Version 1/30/13
General Counsel Approved Version 1/30/13
1
AMENDMENT NO. 1 TO EXTEND AND AMEND AGREEMENT FOR
DOMESTIC SERVICE COLD WATER METER PURCHASES
(BADGER METER INC.)
This Amendment No. 1 is entered into and effective as of the ________ day of
_______________________________, 2013, extending and amending the agreement dated
June 6, 2012 (the “Agreement”) by and between the Carlsbad Municipal Water District, a Public
Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of
Carlsbad, ("CMWD"), and Badger Meter Inc., a Wisconsin corporation, (“Contractor")
(collectively, the “Parties”).
RECITALS
A. The Parties desire to alter the Agreement’s scope of work to extend and fund the
Agreement for a period of one (1) year.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, CMWD and Contractor agree as follows:
1. That the Agreement, as may have been amended from time to time, is hereby
extended for a period of one (1) year ending on June 5, 2014, on a time and materials basis not-
to-exceed one million five hundred seventy three thousand one hundred twenty three dollars
($l,573,123).
2. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor pursuant to the
Agreement, as may have been amended from time to time, will include coverage for this
Amendment.
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UTIL864
4. The individuals executing this Amendment and the instruments referenced in it
on behalf of Contractor each represent and warrant that they have the legal power, right and
actual authority to bind Contractor to the terms and conditions of this Amendment.
CONTRACTOR
BADGER METER, INC., a Wisconsin
corporation
By:
Richard E. Johnso , Sr. Vice President -
(print name/title)Finance, CFO and
Treasurer
(flhere)
CARLSBAD MUNICIPAL WATER
DISTRICT, a Public Agency organized
under the Municipal Water Act of 1911, and
a Subsidiary District of the City of Carlsbad
ATTEST:
Theresa M. Szafranski, Assistant Secretary Secretary
(print name/title)
If required by CMWD, proper notarial acknowledgment of execution by contractor must be
attached. If a corporation, Agreement must be signed by one corporate officer from each of the
following two groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, General Counsel
By:~.Ltl-\-l..lf2~.L.J_~:...::()/-;-=~+-:-ASSiilintGe~l
General Counsel Approved Version 1/30/13
2
UTIL864
AGREEMENT FOR DOMESTIC SERVICE COLD WATER METER PURCHASES
(BADGER METER INC.)
THIS AGREEMENT is made and entered into as of the 6-Ift day of
.::JVI\C , 2012, by and between the CARLSBAD MUNICIPAL WATER
DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary
District of the City of Carlsbad, ("CMWD"), and BADGER METER INC., a Wisconsin
corporation, ("Contractor'').
RECITALS
A. CMWD requires the services of a domestic service cold water meter
manufacturer and/or supplier that is experienced in providing domestic positive displacement
cold water meters sizes 5/8, 3/4 1, 1 Y2 and 2 inch. And turbo type cold water meters sizes 1 Y2
and 2 inch.
B. Contractor has the necessary experience in providing professional services and
advice related to domestic positive displacement cold water meters sizes 5/8, 3/4. 1, 1 Y2 and 2
inch. And turbo type cold water meters sizes 1 Y2 and 2 inch.
C. Contractor has submitted a proposal to CMWD and has affirmed its willingness
and ability to supply the water meters.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, CMWD and Contractor agree as follows:
1. SCOPE OF WORK
CMWD retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and
skill customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment
while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of one ( 1) year from the date first above
written. The Executive Manager may amend the Agreement to extend it for four (4) (additional
one (1) year periods or parts thereof in an amount not to exceed one million five hundred
seventy three thousand one hundred twenty three dollars ($1 ,573, 123) per Agreement year.
Extensions will be based upon a satisfactory review of Contractor's performance, CMWD needs,
and appropriation of funds by the CMWD Board of Directors. The parties will prepare a written
amendment indicating the effective date and length of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
Contract shall provide domestic positive displacement cold water meters sizes 5/8, 3/4, 1, 1 Y2
and 2 inch and turbo type cold water meters sizes 1 Y2 and 2 inch. Per the unit prices not to
exceed one million five hundred seventy three thousand one hundred twenty three dollars
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($1,573,123) per Agreement year as contained on the Bid Proposal page of Exhibit "A". No
other compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. CMWD reserves the right to withhold a ten percent (10%)
retention until CMWD has accepted the work and/or Services specified in Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of CMWD. Contractor will
be under control of CMWD only as to the result to be accomplished, but will consult with CMWD
as necessary. The persons used by Contractor to provide services under this Agreement will not
be considered employees of CMWD for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. CMWD will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. CMWD will not
be required to pay any workers' compensation insurance or unemployment contributions on
behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify CMWD
and the City of Carlsbad within thirty (30) days for any tax, retirement contribution, social
security, overtime payment, unemployment payment or workers' compensation payment which
CMWD may be required to make on behalf of Contractor or any agent, employee, or
subcontractor of Contractor for work done under this Agreement. At CMWD's election, CMWD
may deduct the indemnification amount from any balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of
CMWD. If Contractor subcontracts any of the Services, Contractor will be fully responsible to
CMWD for the acts and omissions of Contractor's subcontractor and of the persons either
directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions
of persons directly employed by Contractor. Nothing contained in this Agreement will create any
contractual relationship between any subcontractor of Contractor and CMWD. Contractor will be
responsible for payment of subcontractors. Contractor will bind every subcontractor and every
subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work
unless specifically noted to the contrary in the subcontract and approved in writing by CMWD.
8. OTHER CONTRACTORS
CMWD reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless CMWD, and the City, and its officers,
officials, employees and volunteers from and against all claims, damages, losses and expenses
including attorney's fees arising out of the performance of the work described herein caused by
any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor,
anyone directly or indirectly employed by any of them or anyone for whose acts any of them
may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense CMWD and the
City incurs or makes to or on behalf of an injured employee under the City's self-administered
workers' compensation is included as a loss, expense or cost for the purposes of this section,
and that this section will survive the expiration or early termination of this Agreement.
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10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The
insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII", OR
with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers
(LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X".
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below, unless the
Risk Manager or Executive Manager approves a lower amount. These minimum amounts of
coverage will not constitute any limitations or cap on Contractor's indemnification obligations
under this Agreement. CMWD, its officers, agents and employees make no representation that
the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are
adequate to protect Contractor. If Contractor believes that any required insurance coverage is
inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems
adequate, at Contractor's sole expense. ·
10.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit
per occurrence for bodily injury, personal injury and property damage. If the submitted policies
contain aggregate limits, general aggregate limits will apply separately to the work under this
Agreement or the general aggregate will be twice the required per occurrence limit.
1 0.1.2 Automobile Liability (if the use of an automobile is involved for Contractor's
work for CMWD). $1 ,000,000 combined single-limit per accident for bodily injury and property
damage.
1 0.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation
limits as required by the California Labor Code. Workers' Compensation will not be required if
Contractor has no employees and provides, to CMWD's satisfaction, a declaration stating this.
1 0.1.4 Professional Liability. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be
maintained for a period of five years following the date of completion of the work.
CMWD's Initials Contractor's Initials
r;-, If box is checked, Professional Liability
~ Insurance requirement is waived.
1 0.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
1 0.2.1 CMWD will be named as an additional insured on Commercial General
Liability which shall provide primary coverage to CMWD.
1 0.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability,
which will be written as claims-made coverage.
1 0.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to CMWD
sent by certified mail pursuant to the Notice provisions of this Agreement.
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10.3 Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of
this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then CMWD will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to
maintain the required coverages. Contractor is responsible for any payments made by CMWD
to obtain or maintain insurance and CMWD may collect these payments from Contractor or
deduct the amount paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. CMWD reserves the right to require, at any time,
complete and certified copies of any or all required insurance policies and endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of
CMWD during normal business hours to examine, audit, and make transcripts or copies of
records and any other documents created pursuant to this Agreement. Contractor will allow
inspection of all work, data, documents, proceedings, and activities related to the Agreement for
a period of three (3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of CMWD. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to CMWD. Contractor will have the right to make one (1)
copy of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in CMWD and
Contractor relinquishes all claims to the copyrights in favor of CMWD.
15. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of CMWD and on behalf of Contractor under this Agreement.
ForCMWD
Name
Title
Mario Remillard
Public Works Supervisor
Carlsbad Municipal Water District
Address 5950 El Camino Real
Carlsbad CA 92008
Phone 760 438 2722 ext 7153
For Contractor
Name Theresa M. Szafranski
Title Assistant Secretary
4545 W. Brown Deer Road
Address PO Box 245036
Phone
E-mail
4
Milwaukee WI 53224-9536
800 876 3837 ext 15896
bids@badgermeter.com
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Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
16. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way affect the
performance of the Services by Contractor. Contractor will at all times observe and comply with
these laws, ordinances, and regulations and will be responsible for the compliance of
Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants that the services required
by this Agreement.
17. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
18. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or CMWD will reduce such questions, and
their respective views, to writing. A copy of such documented dispute will be forwarded to both
parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The representative receiving the letter will reply to the letter along with a
recommended method of resolution within ten (1 0) business days. If the resolution thus
obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded
to the Executive Manager. The Executive Manager will consider the facts and solutions
recommended by each party and may then opt to direct a solution to the problem. In such
cases, the action of the Executive Manager will be binding upon the parties involved, although
nothing in this procedure will prohibit the parties from seeking remedies available to them at law.
19. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or
violation of this warranty, CMWD will have the right to annul this Agreement without liability, or,
in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the
full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
20. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any agreement claim submitted to CMWD
must be asserted as part of the agreement process as set forth in this Agreement and not in
anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false
claim is submitted to CMWD, it may be considered fraud and Contractor may be subject to
criminal prosecution. Contractor acknowledges that California Government Code sections
12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties
where a person knowingly submits a false claim to a public entity. These provisions include
false claims made with deliberate ignorance of the false information or in reckless disregard of
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the truth or falsity of information. If CMWD seeks to recover penalties pursuant to the False
Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor
acknowledges that the filing of a false claim may subject Contractor to an administrative
debarment proceeding as the result of which Contractor may be prevented to act as a
Contractor on any public work or improvement for a period of up to five (5) years. Contractor
acknowledges debarment by another jurisdiction is grounds for CMWD to terminate this
Agreement.
21. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
22. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon CMWD and
Contractor and their respective successors. Neither this Agreement or any part of it nor any
monies due or to become due under it may be assigned by Contractor without the prior consent
of CMWD, which shall not be unreasonably withheld.
23. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it,
along with the purchase order for this Agreement and its provisions, embody the entire
Agreement and understanding between the parties relating to the subject matter of it. In case of
conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor
any of its provisions may be amended, modified, waived or discharged except in a writing
signed by both parties.
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II
25. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR
BADGER METER, INC., a Wisconsin
corporation
By:
(s·
Rl e. Johnson
SeniGr ¥.~ . f1Aan~ttMfP & Treasurer pnn nam 1 e
CARLSBAD MUNICIPAL WATER DISTRICT,
a Public Agency organized under the
Municipal Water Act of 1911, and a
Subsidiary District of the City of Carlsbad
By c:2t JIJI_
PreSidentf
ATTEST:
Secretary
If required by CMWD, proper notarial acknowledgment of execution by contractor must be
attached. If a corporation, Agreement must be signed by one corporate officer from each of the
following two groups.
Group A
Chairman,
President, or
Vice-President
Group 8
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
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CALIFORNIA NOTARY IN CORPORATE FORM
STATE OF WISCONSIN )
COUNTY OF MILWAUKEE) ss
On May 23, 2012, before me, Rebecca L. Loomans, Notary Public, personally appeared Richard
E. Johnson, Senior Vice President-Finance, CFO and Treasurer and Theresa M. Szafranski,
Assistant Secretary who proved to me on the basis of satisfactory evidence to be the persons
whose name is subscribed to the within instrument and acknowledged to me that they executed
the same in their authorized capacity, and that by their signature(s) on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
Witness my hand and official seal.
£~~~~~/
Notary Public in the State of Wisconsin
My Commission Expires: __ bj~h_, . .L_L~-;-IL---/-~f __
!3
EXHIBIT "A"
BID PROPOSAL-DOMESTIC SERVICE COLD WATER METER PURCHASE
WATER METERS
5/8" x 3/4" x 7 1/2" Meter without connections
3/4" x 3/4" x 9" Meter without connections
3/4" x 3/4" x 7 1/2" Short meter without connections
1" x 1 0 3/4" Meter without connections
1 1/2" x 13" Flanged meter without connections
2" x 17" Flanged meter without connections
1 1/2" x 13" Turbine meter without connections
2" x 17" Turbine meter without connections
Bidder's Stated Delivery Time
32 days after receipt of order.
Specifications and General Provisions
UNIT PRICE
$66.80
$97.25
$97.25
$120.80
$256.50
$379.00
$555.00
$579.00
Specifications and general provisions as published in the Request for Bid number 12-0BA
(Rebid) dated April 2012 titled "Domestic Service Cold Water Meters", shall apply to this
agreement. The Contractor's bid response also applies.
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