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HomeMy WebLinkAboutITRON Inc; 2010-08-17; PWENG775PWENG775 AGREEMENT FOR CLUTTER DATA (PROCUREMENT) AND PROPAGATION STUDY SERVICES (ITRON, INC.) THIS AGREEMENT is made and entered into as of the day of /WffUSO 20/0 . 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, referred to as ("CMWD"), and ITRON, INC., a Washington corporation, ("Contractor"). RECITALS A. CMWD requires the professional services of a technology provider for water utilities that are experienced in clutter data (procurement) for propagation studies. B. Contractor has the necessary experience in providing professional services and advice related to clutter data (procurement) for propagation studies. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. Contractor has submitted a proposal to CMWD and has affirmed its willingness and ability to perform such work. 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 four (4) months from the date first above written. 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. General Counsel Approved Version #05.06.08 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be eleven thousand two hundred fifty dollars ($11,250). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. Incremental payments, if applicable, should be made as outlined in attached 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 be responsible for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment in connection with work done under this Agreement. 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 the CMWD and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work General Counsel Approved Version #05.06.08 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 City incurs or makes to or on behalf of an injured employee under the CMWD'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. 10. WARRANTY AND REMEDIES Contractor warrants that all Services provided under this Agreement will be performed in a professional and workmanlike manner. For services that do not substantially comply with the specifications provided in the Scope of Services that CMWD reports to Contractor in writing within sixty (60) days of the performance of the Services, Contractor will re-perform the Services at its cost. Contractor's sole liability and CMWD's sole remedy under this warranty shall be Contractor's re-performance of the Services at no additional cost to CMWD. This warranty is exclusive and in lieu of all other warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose. 11. LIMITATION OF LIABILITY Neither party shall be liable to the other for lost profits or indirect, special, incidental or consequential damages arising out of this Agreement, even if the party has been notified of the possibility of such damages. Under no circumstances will Contractor's liability to CMWD exceed the amounts paid to Contractor under this Agreement. 12. 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-:VM", 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". 12.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless the General Counsel 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 General Counsel Approved Version #05.06.08 insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 12.1.1 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. 12.1.2 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. 12.1.3 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. 12.1.4 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 two years following the date of completion of the work. 12.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 12.2.1 The CMWD and the City of Carlsbad will be named as an additional insured on General Liability. 12.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 12.2.3 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 mail pursuant to the Notice provisions of this Agreement. 12.3. Providing Certificates of Insurance and Endorsements. Prior to CMWD's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to CMWD. 12.4 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 General Counsel Approved Version #05.06.08 and CMWD may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 13. 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. 14. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to payments made 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. 15. 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. 16. 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. 17. 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. For CMWD: Name Mario Remillard For Contractor: Name Heidi Lewis Title Supervisor Carlsbad Municipal Water District Address 5950 El Camino Real Carlsbad CA 92008 Title Project Manager Address 2111 North Molter Road Liberty Lake. WA 99019-9469 Phone No. 760-438-2722 ext 7153 Phone No 509-924-9900 E-Mail Address heidi.lewis@itron.com 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. General Counsel Approved Version #05.06.08 18. CONFLICT OF INTEREST CMWD will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and CMWD's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's affected employees, agents, or subcontractors will complete and file with the Secretary of the Board those schedules specified by CMWD and contained in the Statement of Economic Interests Form 700. Contractor, for Contractor and on behalf of Contractor's agents, employees, subcontractors and consultants warrants that by execution of this Agreement, that they have no interest, present or contemplated, in the projects affected by this Agreement. Contractor further warrants that neither Contractor, nor Contractor's agents, employees, subcontractors and consultants have any ancillary real property, business interests or income that will be affected by this Agreement or, alternatively, that Contractor will file with the CMWD an affidavit disclosing this interest. 19. 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. 20. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 21. 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 (10) 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 General Counsel Approved Version #05.06.08 6 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. 22. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, CMWD may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If CMWD decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, CMWD may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by CMWD and all work in progress to CMWD address contained in this Agreement. CMWD will make a determination of fact based upon the work product delivered to CMWD and of the percentage of work that Contractor has performed which is usable and of worth to CMWD in having the Agreement completed. Based upon that finding CMWD will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of CMWD, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to CMWD. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. CMWD will make the final determination as to the portions of tasks completed and the compensation to be made. 23. 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. 24. 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 sea., 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 General Counsel Approved Version #05.06.08 7 information or in reckless disregard of 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. 25. 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. 26. 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. 27. 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. General Counsel Approved Version #05.06.08 8 28. 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 ITRON, INC., a Washington corporation *By: 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: >rint name/title) (e-mail address) President, Executive Manager or designee ATTJ2S ORtfAlNE/M. WtoO'D \- J T v\v' = aii %&l- tit: o :-t ~ T mprW Blair Asst. Corporate Secretary (print name/title) (e-mail address) If required by CMWD, proper notarial acknowledgment of execution by 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, CFOor Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officers) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, General Counsel By: )TUP A Deputy General Counsel General Counsel Approved Version #05.06.08 EXHIBIT "A" SCOPE OF SERVICES The following is the statement of work for the Carlsbad Municipal Water District's (CMWD) Clutter Data (Procurement) and Propagation Study. The necessity for a Clutter Data (Procurement) and a Propagation Study is to ensure proper placement of the Itron Fixed Network Collectors which are being installed as part of the District's Fixed Network Meter Reading and Water Leak Detection Solution. Proper Placement of the Itron Fixed Network Collectors will ensure that each collector will receive the maximum amount of meter reading and leak detection information for which it is engineered, which in turn allows CMWD to receive maximum benefit from the Fixed Network Meter Reading and Leak Detection Solution that is currently being implemented. ITRON, INC. GENERAL PROJECT RESPONSIBILITIES Itron's general responsibilities include the following: • Procure Clutter Data needed to perform propagation study. • Itron's Systems Engineering to prepare the analysis and perform the propagation study. • Provide Carlsbad Municipal Water District (District) with the information collected and analyzed. • Project to be completed within four months of agreement date. SUMMARY OF PRICING The Clutter Data (Procurement) and Propagation Study is a fixed price of $11,250. To be billed at the completion of the study. • Clutter Data (Procurement). • Fifty (50) hours of data analysis and performance of propagation study. ACCEPTANCE CRITERIA Carlsbad Municipal Water District (District) will consider the Clutter Data (Procurement) and Propagation Study accepted when the District is provided the Clutter Data and analysis there of which will direct proper placement of Itron Fixed Network Collectors. General Counsel Approved Version #05.06.08 10