HomeMy WebLinkAboutADS Corp - Sewer Monitoring - 2015tl
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AGREEMENT
CITY OF FRESNO, CALIFORNIA
TECHNICAL SERVICES CONTRACTOR
THIS AGREEMENT is made and entered into effective the 31$ day of May,2013, by and
between the CITY OF FRESNO, a California municipal corporation (heieinafter referred io as
).CITY'), and ADS CORP, a Division of ADS LLC, a limited liability corporation (hereinafter
referred to as "CONTRACTOR").
RECITALS
WHEREAS, CITY desires to obtain technical services for the ongoing maintenance
services for ADS flow monitoring and related equipment, hereinafter referred to al tne "project;,,
and
WHEREAS, CONTRACTOR is engaged in the business of furnishing services as a
technical flow meter maintenance service and hereby represents that it desires to and is
professionally and legally capable of performing the services called for by this Agreement; and
WHEREAS, since the mid-1980s CONTRACTOR has supplied 21 fiow monitors to
CITY and provided comprehensive maintenance service for the monitors; and
WHEREAS, ADS flow monitoring equipment and software is proprietary and
CONTRACTOR has the knowledge and experience for routine and non-routine maintenãnce of
the equipment, including use of authorized parts; and
WHEREAS, CONTRACTOR has knowledge and experience of the CITY collection
system environment where the meters are located and is familiar with issues impacting meters
resulting in efficient maintenance of the meters; and
WHEREAS, CONTRACTOR acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107 and Administrative Order No.
-3-3;
and
WHEREAS, this Agreement will be administered for CITY by its Director of public
utilities (hereinafter referred to as "Administrato/') or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions,
and premises hereinafter contained to be kept and performed by the respective parties, it is
mutually agreed as follows:
1' Scope of Services. CONTRACTOR shall perform to the satisfaction of ClTy the
services described in Exhibit A, including all work incidental to, or necessary to perform, such
services even though not specifically described in Exhibit A .
2. Term of Aqreement and Time for Performance. This Agreement shall be effective
from the date first set forth above ("Effective Date") and shall contiñue in full force and effect
through December 31,2015 and subject to any earlier termination in accordance with this
Agreement. This Agreement may be extended, with the mutual consent of ClTy and
CONTRACTOR for two consecutive one-year periods with price increases/decreases accordingto negotiated prices. The services of CONTRACTOR as described in Exhibit A are tó
commence upon the Effective Date and shall be completed in a sequence assuring expeditious
completion, but in any event, all such services shall be completed prior to expñation of this
Agreement and in accordance with any performance schedule set forth in Exhibit A.
3.Compensation.
(a) CONTRACTOR'S sole compensation for satisfactory performance of all
services required or rendered pursuant to this Agreement shall be a total fee not to exceed
$188,164.79, paid on the basis of the rates set forth in the schedule of fees and expenses
contained in Exhibit A.
(b) Detailed statements shall be rendered quarterly for services performed in
the preceding quarter and will be payable in the normal course of CITY business. ClTy shall not
be obligated to reimburse any expense for which it has not received a detailed invoice with
applicable copies of representative and identifiable receipts or records substantiating such
expense.(c) The parties may modify this Agreement to increase or decrease the
scope of services or provide for the rendition of services not required by this Agreement, which
modification shall include an adjustment to CONTRACTOR'S compensation. Any change in the
scope of services must be made by written amendment to the Agreement signed by an
authorized representative for each party. CONTRACTOR shall not be entitled to any additional
compensation if services are performed prior to a signed written amendment.
4. Termination. Remedies and Force Maieure.
(a) This Agreement shall terminate without any liability of CITY to
CONTRACTOR upon the earlier of: (i) CONTRACTOR'S filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party
against CONTRACTOR; (ii) 7 calendar days prior written notice with or without cause by CITÍto CONTRACTOR; (iii) CITY'S non-appropriation of funds sufficient to meet its obligations
hereunder during any CITY fiscal year of this Agreement, or insufficient funding for the Èroject;
or (iv) expiration of this Agreement.
(b) lmmediately upon any termination or expiration of this Agreement,
CONTRACTOR shall (i) immediately stop allwork hereunder; (ii) immediately cause añy and all
of its subcontractors to cease work; and (iii) return to CITY any and all unearned payments and
all properties and materials in the possession of CONTRACTOR that are owned by ClTy.
Subject to the terms of this Agreement, CONTRACTOR shall be paid compensation for éervices
satisfactorily performed prior to the effective date of termination. CONTRACTOR shall not be
paid for any work or services performed or costs incurred which reasonably could have been
avoided.
(c) ln the event of termination due to failure of CONTRACTOR to
satisfactorily perform in accordance with the terms of this Agreement, CITY may withhold an
amount that would othenryise be payable as an offset to, but not in excess of, CITY'S damages
caused by such failure. ln no event shall any payment by CITY pursuant to this Agreemênt
constitute a waiver by CITY of any breach of this Agreement which may then exist on the part of
CONTRACTOR, nor shall such payment impair or prejudice any remedy available to ClTy with
respect to the breach.
(d) Upon any breach of this Agreement by CONTRACTOR, CITY may (i)
exercise any right, remedy (in contract, law or equity), or privilege which may be available to it
under applicable laws of the State of California or any other applicable law; (ii) proceed by
appropriate court action to enforce the terms of the Agreement; and/or (iii) recover all direct,
damages for the breach of the Agreement. lf it is determined that CITY improperly terminated
this Agreement for default, such termination shall be deemed a termination for convenience.
(e) CONTRACTOR shall provide CITY with adequate written assurances of
future performance, upon Administrator's request, in the event CONTRACTOR fails to comply
with any terms or conditions of this Agreement.
(Ð CONTRACTOR shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of CONTRACTOR and without lts fault
or negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity,
fires, floods, epidemics, quarantine, restrictions, strikes, unusually severe weather, and delays
of common carriers. CONTRACTOR shall notify Administrator in writing as it is reasonably
possible after the commencement of any excusable delay, setting forth the full particulars in
connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall
promptly give written notice to Administrator of the cessation of such occurrence.
5. Confidential lnformation and Ownership of Documents.
(a) Any reports, information, or other data prepared or assembled by
CONTRACTOR pursuant to this Agreement shall not be made available to any individual or
organization by CONTRACTOR without the prior written approval of the Administrator. During
the term of this Agreement, and thereafter, CONTRACTOR shall not, without the prior writteñ
consent of CITY, disclose to anyone any Confidential lnformation. The term Confidential
lnformation for the purposes of this Agreement shall include all proprietary and confidential
information of CITY, including but not limited to business plans, marketing plans, flnancial
information, materials, compilations, documents, instruments, models, source or object codes
and other information disclosed or submitted,. orally, in writing, or by any other medium or
media. All Confidential lnformation shall be and remain confidential and proprietary in CITY.
(b) Any and all writings and documents prepared or provided by
CONTRACTOR pursuant to this Agreement are the property of CITY at the time of preparation
and shall be turned over to CITY upon expiration or termination of the Agreement.
CONTRACTOR shall not permit the reproduction or use thereof by any other person except as
othen¡,rise expressly provided herein.
(c) lf CONTRACTOR should subcontract all or any portion of the services to
be performed under this Agreement, CONTRACTOR shall cause each subcontractor to also
comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement
6. Technical Skill. lt is further mutually understood and agreed by and between the
parties hereto that inasmuch as CONTRACTOR represents to CITY that CONTRACTOR and its
subcontractors, if any, are skilled in the profession and shall perform in accordance with the
standards of said profession necessary to perform the services agreed to be done by it under
this Agreement, CITY relies upon the skill of CONTRACTOR and any subcontractors to do and
perform such services in a skillful manner and CONTRACTOR agrees to thus perform the
serv¡ces and require the same of any subcontractors. Therefore, any acceptance of such
services by CITY shall not operate as a release of CONTRACTOR or any subcontractors from
said professional standards.
7. lndemnification. To the furthest extent allowed by law, CONTRACTOR shall
indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents
and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract, tort or strict liability, including but not limited to personal injury, death at
any time and property damage), and from any and all claims, demands and actions in law or
equity (including reasonable attorney's fees and litigation expenses) that to the extent such
arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of
CONTRACTOR, its principals, officers, employees, agents or volunteers in the performance of
this Agreement.
lf CONTRACTOR should subcontract all or any portion of the services to be performed
under the Agreement, CONTRACTOR shall require each subcontractor to indemnify, hold
harmless and defend CITY and each of its officers, officials, employees, agents and volunteers
in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
B. lnsurance.
(a) Throughout the life of this Agreement, CONTRACTOR shall pay for and
maintain in full force and effect all insurance as required in Exhibit B or as may be authorized in
writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion.
(b) lf at any time during the life of the Agreement or any extension,
CONTRACTOR or any of its subcontractors fail to maintain any required insurance in full force
and effect, all services and work under this Agreement shall be discontinued immediately, and
all payments due or that become due to CONTRACTOR shall be withheld until notice is
received by CITY that the required insurance has been restored to full force and effect and that
the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain
the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action
taken by CITY pursuant to this section shall in any way relieve CONTRACTOR of its
responsibilities under this Agreement. The phrase "fail to maintain any required insurance" shall
include, without limitation, notification received by CITY that an insurer has commenced
proceedings, or has had proceedings commenced against it, indicating that the insurer is
insolvent.
(c) The fact that insurance is obtained by CONTRACTOR shall not be
deemed to release or diminish the liability of CONTRACTOR, including, without limitation,
liability under the indemnity provisions of this Agreement. The duty to indemnify CITY 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
CONTRACTOR. Approval or purchase of any insurance contracts or policies shall in no way
relieve from liability nor limit the liability of CONTRACTOR, its principals, officers, agents,
employees, persons under the supervision of CONTRACTOR, vendors, suppliers, invitees,
CONTRACTORS, sub-CONTRACTORs, subcontractors, or anyone employed directly or
indirectly by any of them.
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(d) Upon request of CITY, CONTRACTOR shall immediately furnish CITY
with a complete copy of any insurance policy required under this Agreement, including all
endorsements, with said copy certified by the undenruriter to be a true and correct copy of the
original policy. This requirement shall survive expiration or termination of this Agreement.
(e) lf CONTRACTOR should subcontract all or any portion of the services to
be performed under this Agreement, CONTRACTOR shall require each subcontractor to
provide insurance protection in favor of CITY and each of its officers, officials, employees,
agents and volunteers in accordance with the terms of this section, except that any required
certificates and applicable endorsements shall be on file with CONTRACTOR and CITY prior to
the commencement of any services by the subcontractor.
9. Conflict of lnterest and Non-Solicitation.
(a) Prior to CITY'S execution of this Agreement, CONTRACTOR shall
complete a City of Fresno conflict of interest disclosure statement in the form as set forth in
Exhibit G. During the term of this Agreement, CONTRACTOR shall have the obligation and
duty to immediately notify CITY of any change to the information provided by CONTRACTOR in
such statement.
(b) CONTRACTOR shall comply, and require its subcontractors to comply,
with all applicable (i) professional canons and requirements governing avoidance of
impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and
regulations including, without limitation, California Government Code Section 1090 et. seq., the
California Political Reform Act (California Government Code Section 87100 et. seq.) and the
regulations of the Fair Political Practices Commission concerning disclosure and disqualification
(2 California Code of Regulations Section 18700 et. seq.). At any time, upon written request of
CITY, CONTRACTOR shall provide a written opinion of its legal counsel and that of any
subcontractor that, after a due diligent inquiry, CONTRACTOR and the respective
subcontracto(s) are in full compliance with all laws and regulations. CONTRACTOR shall take,
and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of
interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest,
CONTRACTOR shall immediately notify CITY of these facts in writing.
(c) ln performing the work or services to be provided hereunder,
CONTRACTOR shall not employ or retain the services of any person while such person either is
employed by CITY or is a member of any CITY council, commission, board, committee, or
similar CITY body. This requirement may be waived in writing by the City Manager, if no actual
or potential conflict is involved.
(d) CONTRACTOR represents and warrants that it has not paid or agreed to
pay any compensation, contingent or othenruise, direct or indirect, to solicit or procure this
Agreement or any rights/benefits hereunder.
(e) Neither CONTRACTOR, nor any of CONTRACTOR'S subcontractors
performing any services on this Project, shall bid for, assist anyone in the preparation of a bid
for, or perform any services pursuant to, any other contract in connection with this Project
unless fully disclosed to and approved by the City Manager, in advance and in writing.
CONTRACTOR and any of its subcontractors shall have no interest, direct or indirect, in any
other contract with a third party in connection with this Project unless such interest is in
accordance with all applicable law and fully disclosed to and approved by the City Manager, in
advance and in writing. Notwithstanding any approval given by the City Manager under this
provision, CONTRACTOR shall remain responsible for complying with Section g(b), above.
(f) lf CONTRACTOR should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, CONTRACTOR shall include the
provisions of this Section g in each subcontract and require its subcontractors to comply
therewith.
(g)This Section 9 shall survive expiration or termination of this Agreement.
10. Recvclins Program. ln the event CONTRACTOR maintains an office or operates
a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of
the City of Fresno, CONTRACTOR at its sole cost and expense shall:
(i) lmmediately establish and maintain a viable and ongoing recycling program,
approved by CITY'S Solid Waste Management Division, for each office and
facility. Literature describing CITY recycling programs is available form CITY'S
Solid Waste Management Division and by calling City of Fresno Recycling
Hotline at (559) 621-1111.
(ii) lmmediately contact CITY'S Solid Waste Management Division at
(559) 621-1452 and schedule a free waste audit, and cooperate with such
Division in their conduct of the audit of each office and facility.
(iii) Cooperate with and demonstrate to the satisfaction of CITY'S Solid Waste
Management Division the establishment of the recycling program in paragraph (i)
above and the ongoing maintenance thereof.
11. GeneralTerms.
(a) Except as otherwise provided by law, all notices expressly required of
CITY within the body of this Agreement, and not othenvise specifically provided for, shall be
effective only if signed by the Administrator or his/her designee.
(b) Records of CONTRACTOR'S expenses pertaining to the Project shall be
kept on a generally recognized accounting basis and shall be available to CITY or its authorized
representatives upon request during regular business hours throughout the life of this
Agreement and for a period of three yéars after final payment or, if longer, for any period
required by law. ln addition, all books, documents, papers, and records of CONTRACTOR
pertaining to the Project shall be available for the purpose of making audits, examinations,
excerpts, and transcriptions for the same period of time. lf any litigation, claim, negotiations,
audit or other action is commenced before the expiration of said time period, all records shall be
retained and made available to CITY until such action is resolved, or until the end of said time
period whichever shall later occur. lf CONTRACTOR should subcontract all or any portion of the
services to be performed under this Agreement, CONTRACTOR shall cause each subcontractor
to also comply with the requirements of this paragraph. This Section 11(b) shall survive
expiration or termination of this Agreement.
(c) Prior to execution of this Agreement by CITY, CONTRACTOR shall have
provided evidence to CITY that CONTRACTOR is licensed to perform the services called for by
this Agreement (or that no license is required). lf CONTRACTOR should subcontract all or any
portion of the work or services to be performed under this Agreement, CONTRACTOR shall
require each subcontractor to provide evidence to CITY that subcontractor is licensed to
perform the seruices called for by this Agreement (or that no license is required) before
beginning work.
12. Nondiscrimination. To the extent required by controlling federal, state and local
law, CONTRACTOR shall not employ discriminatory practices in the provision of services,
employment of personnel, or in any other respect on the basis of race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam
era. Subject to the foregoing and during the performance of this Agreement, CONTRACTOR
agrees as follows:
(a) CONTRACTOR will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded
from participation in, be denied the benefits of, or be subject to discrimination under any
program or activity made possible by or resulting from this Agreement.
(b) CONTRACTOR will not discriminate against any employee or applicant
for employment because of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age, sexual orientation,
ethnicity, status as a disabled veteran or veteran of the Vietnam era. CONTRACTOR shall
ensure that applicants are employed, and the employees are treated during employment,
without regard to their race, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status
as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to
CONTRACTOR'S employment practices including, but not be limited to, the following:
employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship. CONTRACTOR agrees to post in conspicuous places, available to employees
and applicants for employment, notices setting forth the provision of this nondiscrimination
clause.
(c) CONTRACTOR will, in all solicitations or advertisements for employees
placed by or on behalf of CONTRACTOR in pursuit hereof, state that all qualified applicants will
receive consideration for employment without regard to race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.(d) CONTRACTOR will send to each labor union or representative of workers
with which it has a collective bargaining agreement or other contract or understanding, a notice
advising such labor union or workers' representatives of CONTRACTOR'S commitment under
this section and shall post copies of the notice in conspicuous places available to employees
and applicants for employment.
(e) lf CONTRACTOR should subcontract all or any portion of the services to
be performed under this Agreement, CONTRACTOR shall cause each subcontractor to also
comply with the requirements of this Section 12.
13. lndependentContractor.
(a) ln the furnishing of the services provided for herein, CONTRACTOR is
acting solely as an independent contractor. Neither CONTRACTOR, nor any of its officers,
agents or employees shall be deemed an officer, agent, employee, joint venture, partner or
associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the
manner or method by which CONTRACTOR shall perform its work and functions. However,
CITY shall retain the right to administer this Agreement so as to verify that CONTRACTOR is
performing its obligations in accordance with the terms and conditions thereof.
(b) Because of its status as an independent contractor, CONTRACTOR and
its officers, agents and employees shall have absolutely no right to employment rights and
benefits available to CITY employees. CONTRACTOR shall be solely liable and responsible for
all payroll and tax withholding and for providing to, or on behalf of, its employees all employee
benefits including, without limitation, health, welfare and retirement benefits. ln addition,
together with its other obligations under this Agreement, CONTRACTOR shall be solely
responsible, indemnify, defend and save CITY harmless from all matters relating to employment
and tax withholding for and payment of CONTRACTOR'S employees, including, without
limitation, (i) compliance with Social Security and unemployment insurance withholding,
payment of workers' compensation benefits, and all other laws and regulations governing
matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in
CITY employment benefits, entitlements, programs and/or funds offered employees of CITY
whether arising by reason of any common law, de facto, leased, or co-employee rights or other
theory. lt is acknowledged that during the term of this Agreement, CONTRACTOR may be
providing services to others unrelated to CITY or to this Agreement.
14. Notices. Any notice required or intended to be given to either party under the
terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered
personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by
United States registered or certified mail, with postage prepaid, return receipt requested,
addressed to the party to which notice is to be given at the party's address set forth on the
signature page of this Agreement or at such other address as the parties may from time to time
designate by written notice. Notices served by United States mail in the manner above
described shall be deemed sufficiently served or given at the time of the mailing thereof.
15. Bindinq. Subject to Section 16, below, once this Agreement is signed by all
parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties'
respective heirs, successors, assigns, transferees, agents, servants, employees and
representatives.
Assiqnment.
(a) This Agreement is personal to CONTRACTOR and there shall be no
assignment by CONTRACTOR of its rights or obligations under this Agreement without the prior
written approval of the City Manager or his/her designee. Any attempted assignment by
CONTRACTOR, its successors or assigns, shall be null and void unless approved in writing by
the City Manager or his/her designee.
(b) CONTRACTOR hereby agrees not to assign the payment of any monies
due CONTRACTOR from CITY under the terms of this Agreement to any other individual(s),
corporation(s) or entity(ies). CITY retains the right to pay any and all monies due
CONTRACTOR directly to CONTRACTOR.
17. Compliance With Law. ln providing the services required under this
Agreement, CONTRACTOR shall at all times comply with all applicable laws of the United
States, the State of California and CITY, and with all applicable regulations promulgated by
federal, state, regional, or local administrative and regulatory agencies, now in force and as they
may be enacted, issued, or amended during the term of this Agreement.
18. Waiver. The waiver by either party of a breach by the other of any
provision of this Agreement shall not constitute a continuing waiver or a waiver of any
subsequent breach of either the same or a different provision of this Agreement. No provisions
of this Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other provision
herein.
19. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for
purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
20. Headinqs. The section headings in this Agreement are for convenience
and reference only and shall not be construed or held in any way to explain, modify or add to
the interpretation or meaning of the provisions of this Agreement.
21. Severabilitv. The provisions of this Agreement are severable. The
invalidity, or unenforceability of any one provision in this Agreement shall not affect the other
provrsrons.
22. lnterpretation. The parties acknowledge that this Agreement in its final
form is the result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by
construing this Agreement in favor of or against either party, but rather by construing the terms
in accordance with their generally accepted meanrng.
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23. Attornev's Fees. lf either party is required to commence any proceeding
or legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party in such proceeding or action shall be entitled to recover from the other party its
reasonable attorney's fees and legal expenses.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
25. Precedence of Documents. ln the event of any conflict between the body
of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of
this Agreement shall control and take precedence over the terms and conditions expressed
within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any
Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties,
provided for within the body of this Agreement, shall be null and void.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
27. No Third PArtv Beneficiaries. The rights, interests, duties and obligations
defined within this Agreement are intended for the specific parties hereto as identified in the
preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement,
it is not intended that any rights or interests in this Agreement benefit or flow to the interest of
any third parties.
28. Extent of Aqreement. Each party acknowledges that they have read and
fully understand the contents of this Agreement. This Agreement represents the entire and
integrated agreement between the parties with respect to the subject matter hereof and
supersedes all prior negotiations, representations or'agreements, either written or oral. This
Agreement may be modified only by written instrument duly authorized and executed by both
CITY and CONTRACTOR.
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lN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By:
PATRICK WIEMILLER
Director
Department of Public Utilities
ATTEST:
YVONNE SPENCE, CMC
City Clerk
Title:
(if rd Chair,
Pres.
By:ttt
t¿ LXlct'
5.Ll'\,
Attorney
Addresses:
CITY: City of Fresno
Attention: Rosa Lau-Staggs,
Chief of Environmental Services
5607 W. Jensen
Fresno, CA 93619
Phone: (559) 621-5130
FAX: (559) 498-1700
Attachments:
1. Exhibit A -Scope of Services
2. Exhibit B -lnsurance Requirements
Treasurer
(if corporation or LLC, CFO,
Treasurer, Secretary or Assistant
Seeretary)
Any Applicable Professional License:
Number:
Name:
Date of lssuance:
CONTRACTOR:
ADS Corp, ADS LLC
Attention: Paul Forsthoefel
West Regional Manager
15205 Springdale St
Huntington Beach, CA 92649
Phone: (206) 512-9178
FAX: (206) 762-5077
By:
3. Exhibit C -Conflict of lnterest Disclosure Form
ADS CORP, A
Limited,Liability
W.
APPROVED AS TO FORM:
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Exhibit A
Scope of Gontractor Services.
Agreement between City of Fresno and ADS Corp (ADS)
Sewer Flow Monitorinq Maintenance for the Citv of Fresno
Mav 2013-December 2015
Section l. Quarterly Service
ADS shall perform the following maintenance and/or repair services on equipment installed at
the locations listed in Attachment B, entitled "Equipment Schedule", attached hereto and by this
reference incorporated as part of this Proposal. The services shall include provision for all
labor, parts, field equipment, traffic control equipment, and confined space equipment.
ADS shall maintain an office within the State of California, to provide appropriate maintenance
and repair services. The facility shall be appropriately staffed with full time employees of ADS.
The facility shall be equipped with all necessary test equipment, repair equipment, and spare
parts required. ADS is not responsible for service or repairs for central computer, peripherals
and other related equipment not originally provided by ADS.
ADS shall designate a representative who shall be the primary contact with the City of Fresno
for the resolution of field problems. Written notification of any change in this primary contact will
be provided to the City of Fresno.
The flow monitor maintenance and repair services to be provided by ADS shall include:
A. Equipment Repair and Maintenance Services:
ADS on a scheduled quarterly basis will perform repair and maintenance services necessary to
keep the equipment operating in accordance with manufacturer's design specifications. These
services will be performed as required both in the field and from ADS service facilities in
California, or other service locations. The services to be performed under this agreement
include but are not limited to the following:
a. General equipment maintenance including sensor cleaning and battery replacement;
b. Batteries shall be replaced when their voltages register'critical' on the diagnostic
evaluation. ADS shall replace the batteries within the scheduled quarterly service
schedule plan;
c. The following items will only be conducted by ADS under the normal Quarterly
service plan or, alternatively, upon the express authorization of the City of Fresno if
repairs are needed to be made to the ADS 3500 series meters as detailed in Section
F. "exclusions".
i. Repair of electronic failure internal to the equipment;ii. Repair of communication link failure internal to the equipment;
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iii. Depth sensor replacement. A depth sensor shall be replaced if, after
cleaning, the sensor has less than two (2) operating ultrasonic crystals or less
than two (2) reporting sensor pairs;
iv. Velocity sensor replacement. A velocity sensor shall be replaced if it
malfunctions;
v. Pressure sensor replacement. A pressure sensor shall be replaced if it
malfunctions;
vi. Repair or replacement of circuit boards, internal electronics, connectors,
wiring, chassis, canister, and miscellaneous items as required;vii. FlowShark AL or Triton equipment replacement. The meter and associated
sensors and communication modules will be replaced in the event of
malfunction.
The field service shall accommodate the City of Fresno's normal operating hours of 8:00 A.M. to
4:45 P.M. Monday through Thursday, Pacific Standard Time, or provide written notification if
after hours work is required ADS shall provide an email which will document all maintenance
and diagnostics performed. No non-emergency work shall be done on State and Federal
Holidays.
B. Confirmations:
ADS shall conduct a site visit to each telemetered Sanitary sewer open channelflow monitoring
site indicated in Attachment B, "Equipment schedule," to perform an in-situ hydraulic
confirmation and a physical confirmation of the sensor readings once annually, at a minimum.
This site visit shall include a site inspection of all ADS supplied field equipment and a manual
measurement of the pipe diameter and depth. Measurements of depth shall be cross-checked
with the depth sensors and confirmations shall be made that the sensors are correctly reading
and recording the actual depth. Additionally, a check shall be made for the presence of any
siltation. lf any silt is present, the depth of the silt shall be measured and recorded. Any
significant variations in the measured parameters shall be reported to the designated City data
analyst.
Traffic Control:
Traffic control shall be as specified in ADS Safety Manual and as indicated on the site reports.
ADS shall follow the California WATCH Manual when conducting traffic control.
C. Confined Space Entry:
ADS shall use trained 2-person field crews, unless specific site conditions require a 3-person
crew, with appropriated equipment and vehicles to perform confined space entries during the
term of this Agreement consistent with CAL-OSHA requirements for confined space entry.
D. System Performance:
Under this Scope of Work, ADS shall not quarantee overall Sanitary sewer system-wide up-
time during maintenance and repair period of 95%. ADS will only conduct equipment
maintenance and repairs during the scheduled quarterly service or in the event of a sensor
malfunction within forty-five (45) days of last scheduled quarterly visit (sensor scrubs excluded).
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E. Exclusions:
The following equipment and services shall be excluded from the Quarterly maintenance and
repair service agreement:
a. Repair of obsolete 3500 meters that ADS field crews are unable to repair in the field,
due to the degree of corrosion or apparent internal malfunction. lf this occurs, the
City of Fresno will have the option of paying ADS a $1,500 additional mobilization
service charge (in addition to the quarterly service fee per meter), to repair and
reinstall the meter within two (2) weeks of the quarterly service visit. ADS will
contact the City of Fresno to communicate if the meter is repairable and to determine
whether or not the City wishes to exercise this option. lf the City of Fresno chooses
not to pay for the expedited meter repair, the non-functional meter will be repaired
and replaced during the next quarterly maintenance for no additional charge as long
as needed parts are still available.
b. Repair of phone lines from the monitor to the service connection;
c. Communication and electrical lines externalto the equipment;
d. Changes or alterations in specifications;
e. Painting, refinishing, orfurnishing materials;
f. lnstallation, moving, or removing of equipment unless required as part of the repair
process;
g. Repairs made necessary by action of the City of Fresno, its employees, agents,
contractors or invitees;
h. Repairs made necessary due to attempts by the City of Fresno to repair or maintain
ADS equipment unless authorized by ADS;i. Maintenance and repairs to equipment not specifically identified in Attachment B,
"Equipment Schedule";j. Service during holidays or weekends, or service not covered by this Agreement.
Holidays are defined as New Year's Day, Martin Luther King Day, Presidents Day,
Good Friday, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day and the
day after, and Christmas Day;
k. Maintenance and repairs made necessary due to events beyond ADS's control such
as, but not limited to, vandalism, construction by others that cut telephone lines,
unusually heavy debris that destroys or othenruise disables sensors, or acts of God
(e.9., lightning strikes, etc.)
ll. Gity of Fresno Responsibilities
The City of Fresno agrees to perform the following functions and/or make the following
acknowledgements in connection with this Agreement. The City of Fresno agrees that certain
activities must be performed or acknowledged prior to ADS having any obligation to perform
services. lf such functions and/or acknowledgements are not made, ADS shall have no
obligation to perform the above services at the affected locations.
1. The City of Fresno will not make changes in the equipment or software that would
preclude ADS from being able to interface via telephone or wireless internet (depending
on the telemetry of the meter installed) with the City of Fresno's equipment unless
agreed to by ADS in writing.
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2. The City of Fresno will not make repairs or perform maintenance or attempt to do so on
the equipment unless authorized by ADS.
3. The City of Fresno will notify ADS of any known equipment malfunctions no less than
five (5) business days prior to the next scheduled Quarterly ADS visit either by phone or
in writing. This will enable ADS to prepare for the service visit.4. The City of Fresno will allow ADS to address the system electronically for purposes of
running diagnostic tests and performing other pertinent functions. The City of Fresno
agrees to have available upon request by ADS any data or monitor information which
would assist in the diagnostic procedure
5. The City of Fresno shall designate a representative to act as liaison between the City of
Fresno and ADS representative.
6. The City of Fresno shall provide and maintain dial up telephone telemetry to each site
listed in Attachment B, "Equipment Schedule" that has a landline telemetry flow meter
installed
7. The City of Fresno will provide landline phone service to each monitoring manhole
where the City designates a landline telemetry flow meter be installed.L The City of Fresno will communicate with ADS as to their preference for expedited repair
of obsolete 3500 meters, in the event that those meters are determined to be
unrepairable in the field during the quarterly maintenance visit.
The City of Fresno shall be responsible for the removal of any and or all vegetation, debris or silt
that may or does create backups or flow disruptions, which may cause monitor damage or have
an effect on data accumulation and accuracy.
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EQUIPMENT SCHEDULE
This equipment schedule identifies the unit covered by the agreement between the City of
Fresno and ADS.
Site Location
FR01 (3500) 5518 W. Olive Ave.
FR02 (3500) Corner of Blythe Ave and W. Herndon Ave.
FR06 (3500) Corner of W. Ashlan Ave. and N. Fruit Street
FR08 (4000) chestnut Ave. @ Annadale Avenue, on the dirt levee road.
FR09 (8000) (Chestnut and Madison)
FR10 (4500) 3606 N. Fowler Ave.
FR1 1 (3500) E. North Ave. Approx. 1.5 mite from S. Chestnut Ave.
FR12 (3500) lntersection of E. Herndon and W. Willow Ave.
FR13 (4000) 2930 S. Fruit Ave.
FR14 (8000) (Cherry, south of Edgar)
FR15 (4000) 428 W. California Ave.
FR19 (8000) (Church, east of Cornelia)
FR20 (4000) lntersection of South Valentine Ave and W. North Ave.
FR22 (8000) (Marks and Nielsen)
FR23 (4000) lntersection of E. Washington & N. Garden Ave.
FR24 (8000) (Grantland and Jensen)
FR25 (8000) 2398 E. Shaw
FR26 (8000) 3394 Sierra Ave
FR27 (5000) 4023 N Peach Ave
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for at least 5 years after any expiration or termination of the Agreement or,
in the alternative, the policy shall be endorsed to provide not less than a 5-
year discovery period.
lf coverage is cancelled or non-renewed, and not replaced with another claims-
made policy form with a retroactive date prior to the effective date of the
Agreement or the commencement of work by CONTRACTOR, CONTRACTOR
must purchase extended reporting coverage for a minimum of 5 years following
the expiration or termination of the Agreement.
A copy of the claims reporting requirements must be submitted to CITY for
review.
These requirements shall survive expiration or termination of the Agreement.
All policies of insurance required hereunder shall be endorsed to provide that the coverage shall
not be cancelled, non-renewed, reduced in coverage or in limits except after 30 calendar day
written notice by certified mail, return receipt requested, has been given to CITY. Upon issuance
by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in
coverage or in limits, CONTRACTOR shall furnish CITY with a new certificate and applicable
endorsements for such policy(ies). ln the event any policy is due to expire during the work to be
performed for CITY, CONTRACTOR shall provide a new certificate, and applicable
endorsements, evidencing renewal of such policy not less than 15 calendar days prior to the
expiration date of the expiring policy.
Acceptability of I nsurers
All policies of insurance required hereunder shall be placed with an insurance company(ies)
admitted by the California lnsurance Commissioner to do business in the State of California and
rated not less than "A-Vll' in Best's lnsurance Rating Guide; or authorized by CITY'S Risk
Manager.
Verification of Coverage
CONTRACTOR shall furnish CITY with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements are to be
received and approved by the CITY'S Risk Manager or his/her designee prior to CITY'S
execution of the Agreement and before work commences.
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4
5
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Exhibit C
Disclosure of Conflict of lnterest
Sewer Flow Monitorinq Maintenance. 19 sites. for the Citv of Fresno
Mav 2013-December 2015
YES*NO
I Are you currently in litigation with the City of Fresno or any of its
agents?f
2 Do you represent any firm, organization or person who is in
litigation with the City of Fresno?f
3 Do you currently represent or perform work for any clients who do
business with the City of Fresno?f
4 Are you or any of your principals, managers or professionals,
owners or investors in a business which does business with the
City of Fresno, or in a business which is in litigation with the City
Fresno?
of t
5 Are you or any of your principals, managers or professionals,
related by blood or marriage to any City of Fresno employee who
has any significant role in the subject matter of this service?
T
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with
this Project?
I
* lf the answer to any question is yes, please explain in full below.l
Explanation:
,L(
AıS LLb
(company)
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f Additional page(s) attached