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HomeMy WebLinkAboutRichard Health & Associates, Inc.-Agreement-12-2-2022LIVL:UJIIJ.II CIIVCIVFJC IU. f•h�FLOV r:1-GJO V-YV�J-OJU V-l.r�CI�MJJyI�r JM AGREEMENT THIS AGREEMENT is made and entered into effective December z 2022, by and between the City of Fresno (City), a California municipal corporation, and Richard Heath & Associates, Inc., (Contractor), a California Corporation, (hereinafter collectively referred to as "Parties"). A. Contractor is under contract with Pacific Gas & Electric (PG&E) to administer PG&E's Water -Energy Coordination Program. B. Underthe Water -Energy Coordination Program, Contractor builds relationships with water agencies to make the water agencies' programs available to PG&E's customers by leveraging PG&E's Energy Savings Assistance Program. C. The City desires to obtain Water Coordination Program services (Services) from Contactor to offer income eligible City of Fresno water customers, among other things, in -home energy audits, retrofit assessments, and direct installation of high efficiency toilets. D. The work to be performed under this Agreement constitutes a "public work" as defined in Chapter 1, Part 7, Division 2 of the California Labor Code and a "public work of improvement" as defined in Fresno Municipal Code section 4- 115. E. This Agreement will be administered for the City by its Water Conservation Supervisor (Contract Administrator) or designee. 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. RENDITION OF SERVICES The Contractor agrees to provide services to the City in accordance with the terms and conditions of this Agreement. Contractor represents that it will exercise the same degree of professional care, skill, efficiency, and judgment ordinarily used by consultants providing similar professional services. Contractor at all times will comply with all federal, state, and local laws, regulations and policies applicable to the services performed pursuant to this Agreement, including but not limited to all applicable assessment, installation, and post -installation standards for the installation of water measures and high efficiency toilets, as specified in Exhibit 1, "Statement of Work," attached to this Agreement and hereby incorporated by reference. 2. SCOPE OF WORK The scope of work consists of both (1) program management and (2) direct retrofit installation work. Program management work will be performed by Contractor and the direct retrofit installation work shall be performed by a qualified and licensed plumber, selected, and hired by Contractor. The scope of the Contractor's services is set forth in more detail in Exhibit 1, "Statement of Work." L/UUU01yJI CIIVCIUpt: IU. l4YGOVr:1-L'JOV'4V��-O:JV V'I�DCI../'1JU�lirJH 3. AGREEMENT PRICE Contractor's sole compensation for satisfactory performance of all services rendered pursuant to this Agreement, including direct retrofit installation work, shall be an amount not to exceed $158,000. Contractor will be compensated at the rates specified in Exhibit 1. 4. TERM OF AGREEMENT The term of this Agreement shall commence upon the City's issuance of a Notice to Proceed and conclude six months from issuance of the Notice to Proceed. The Agreement is subject to termination pursuant to Section 11, "Termination of Agreement." The City will issue a Notice to Proceed once it has compiled a list of thirty eligible customers who have chosen to participate in the program. 5. SERVICE NOTICE All notices and communications deemed by either party to be necessary or desirable to be given to the other party shall be in writing and may be given by personal delivery to a representative of the parties or by mailing the same postage prepaid, addressed as follows: If to the City: CITY OF FRESNO WATER DIVISION 1910 E. University Ave. Fresno, CA. 93703 ATTENTION: Wendy Cornelius If to the Contractor: RICHARD HEATH & ASSOCIATES, INC. 590 W. Locust Ave., Ste. 103 Fresno, CA. 93650 ATTENTION: Cynthia Bruno Rafferty, CEO The address to which mailings may be made may be changed from time to time by notice mailed as described above. Any notice given by mail shall be deemed given on the day after that on which it is deposited in the United States Mail as provided above. 6. SUBCONTRACTING OR ASSIGNMENT The benefits and obligations hereunder shall inure to and be binding upon the parties hereto and neither this Agreement nor the obligations or services to be performed there under shall be subcontracted, assigned, or otherwise disposed of, either in whole or in part, except with the prior written consent of the City's Contract Administrator or designee. Written consent of the City's Contract Administrator is also necessary for substitution of a previously approved subcontractor orassignee. 7. PATENTED DEVICES MATERIALS. AND PROCESSES If the Contractor is required or desires to use any design, device, material, or process covered by letters of patent or copyright, Contractor shall provide for such use by 2 L/UL:UJIIJ.II r-mc:iuytC IL/. !'#'FLOV r:J-GJOV-V V.7 �-O:lUU-l..�CI�MJJ�I..r JM suitable legal agreement with the patentee or owner and a copy of such agreement shall be filed with the City. The Contractor shall pay all applicable royalties and license fees. Contractor shall defend all suits or claims for infringement of any patent rights and hold the City harmless from loss on account thereof. 8. CHANGE ORDERS / AMENDMENTS Any changes in the scope of the Services to be performed under this Agreement shall be in the form of a written change order or amendment to this Agreement, mutually agreed to and signed by both parties, specifying any such changes, fee adjustments, any adjustment in time of performance, or any other significant factors arising from the changes in the scope of Services. 9. MATERIAL AND WORKMANSHIP All equipment, materials, and components incorporated into the work covered by this Agreement shall be new and of the most suitable grade for the purpose intended, unless otherwise specifically provided in this Agreement. References in the specifications to equipment, materials, articles, or patented processes by trade name, make, or catalog number, shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. The Contractor may, as its option, use any equipment, material, article, or process that, in the judgment of the Contract Administrator or designee, is equal to that named in the specifications, unless otherwise specifically provided in this Agreement. All work under this Agreement shall be performed in a workmanlike manner. The City may require, in writing, that the Contractor remove from work any employee deemed incompetent, careless, or otherwise objectionable based on the City's reasonable determination. 10. FAILURE TO PERFORM Failure of the Contractor to (a) deliver the required goods or perform the required services within the time specified or within a reasonable time or (b) make replacements of rejected articles immediately or as directed shall constitute authority for the City to purchase in the open market services or goods of comparable grade to replace the goods not delivered or rejected. On all such purchases, the Contractor shall reimburse the City within a reasonable time as specified by the City for any expense incurred in excess of Agreement prices, including any administrative costs. Should public necessity demand it, the City reserves the right to use or consume articles delivered or services performed which are substandard in quality, subject to an adjustment in price as reviewed and approved by the City's Purchasing Manager. The Contractor shall not be liable for any excess costs if acceptable evidence has been submitted to the Purchasing Manager that failure to perform this Agreement was due to causes beyond the control and without the failure or negligence of the Contractor. The remedies provided in this General Condition are in addition to any other rights and remedies provided by law or under any other provisions of this Agreement. 11. TERMINATION OF AGREEMENT The City may terminate this Agreement at any time for convenience by giving the 3 Ll UI.UJIIY.II CIIVCIUFIC IL/. f'+'FGOVr:7-LVOV-YV 7.7-OVU V-I�fJ CI�/1JVylJr J/1 Contractor 30 calendar days' written notice thereof. Notice of termination for convenience shall be sent by certified mail. Upon termination for convenience, the City shall pay the Contractor its allowable costs incurred to the date of termination and those costs deemed necessary by the City to effect termination. In the event that the Contractor at any time during the entire term of this Contract breaches the requirements or conditions of the Agreement, and does not within ten business days of receipt of notice thereof from the City cure such breach or violation, the City may immediately terminate this Agreement for default and shall pay the Contractor only its allowable costs to the date of termination. If the Contractor does cure the breach or violation, any subsequent breach or violation of any kind may be cause for immediate termination for default without advance notice. 12. GOVERNING LAW 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. 13. COMPLIANCE WITH LAWS The Contractor hereby represents and warrants: • that it is qualified to do business in the State of California and that it will take such action as, from time to time hereafter, may be necessary to remain so qualified; that it shall at all times comply with all applicable laws of the United States, the State of California and City, and with all application 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; and that it shall procure, at its own expense, all licenses, permits, insurance, bonding, and governmental approval, if any, necessary to the performance of its obligations under this Agreement. 14. FORCE MAJEURE Neither party shall be considered in default in the performance of its obligations hereunder to the extent that performance of such obligations is delayed, hindered, or prevented by any cause which is beyond the reasonable control of such party (hereinafter called "Force Majeure"). Force Majeure includes but is not limited to any of the following, if reasonably beyond the control of the party claiming Force Majeure: delays caused by the other party, war (declared or undeclared), blockades, hostilities, riots, strikes, lockouts or other labor disturbances, epidemics, fires, storms, delays or interruptions in transportation, or any laws, regulations or ordinances of any government, governmental agency or court having or claiming to have jurisdiction over any part of the Agreement, or any other causes (whether or not of kinds specifically mentioned herein). Notwithstanding anything in this Agreement, Force Majeure does not include the Contractor's failure to obtain the necessary permits, licenses, 51 uuuu,JIyll CIlvt Ilu I, IU. /'}4LOVr:1-LJO V-'FV JJ-OJU V-1��ClJF1JJ�1�r J/'1 exceptions, or other authorizations required to perform this Agreement. Either party hereto shall give notice promptly within seven calendar days of the nature and extent of any Force Majeure claimed to delay, hinder, or prevent performance under this Agreement. 15. INSURANCE (a) Throughout the life of this Agreement, Contractor shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as may be authorized in writing by City's Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If 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, vendors, suppliers, invitees, contractors, sub -contractors, subcontractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence 5 L/UVUJIylI CIIVCIVFIC IL-J. /4'4GOVrV-L:JO V-YUy7-OVV V-I�DCIJMJV�IJrJM form and shall provide coverage for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations (including the use of owned and non -owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under "Minimum Limits of Insurance." 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance, or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non -owned automobiles or other licensed vehicles (Code 1- Any Auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. MINIMUM LIMITS OF INSURANCE Contractor shall procure and maintain for the duration of the contract, and for five years thereafter, insurance with limits of liability not less than those set forth below. However, insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation Insurance as required by the State of California with statutory limits and EMPLOYER'S LIABILITY with limits of liability not less than: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. UMBRELLA OR EXCESS INSURANCE In the event Contractor purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non- 0 L/UUUJIIJ.II CIIVCIUyU IL/. /'}•FGOV r:1-GUOU-4V.y.7-O:1UV-li�Cl�/1J:J�l+r Jh1 contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers. Deductibles And Self -Insured Retentions Contractor shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Contractor shall also be responsible for payment of any self -insured retentions. Any self -insured retentions must be declared on the Certificate of Insurance, and approved by, the City's Risk Manager or designee. At the option of the City's Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such self -insured retentions as respects City, its officers, officials, employees, agents, and volunteers; or (ii) Contractor shall provide a financial guarantee, satisfactory to City's Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self - insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS (i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non -renewed, reduced in coverage or in limits except after thirty calendar days written notice has been given to City, except ten days for nonpayment of premium. Contractor is also responsible for providing written notice to the City under the same terms and conditions. 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). In 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 fifteen calendar days prior to the expiration date of the expiring policy. (ii) The Commercial General and Automobile Liability insurance policies shall be written on an occurrence form. (iii) The Commercial General and Automobile Liability insurance policies shall be endorsed to name City, its officers, officials, agents, employees, and volunteers as an additional insured. Contractor shall establish additional insured status for the City and for all ongoing and completed operations under the Commercial General Liability policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37. (iv) The Commercial General and Automobile Liability insurance shall contain, or be endorsed to contain, that the Contractors' insurance shall be primary to and require no contribution from the City. The 7 LJUI;UJIIy.II CI IVCIUpC IU. I'+'FGOVr:J-L'JOV-4VJ�-000 V-1,�ClJF1J:J�l�r JF1 Commercial General insurance policy is required to include primary and non-contributory coverage in favor of the City for both the ongoing and completed operations coverage. These coverages shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents, and volunteers. If Contractor maintains higher limits of liability than the minimums shown above, City requires and shall be entitled to coverage for the higher limits of liability maintained by Contractor. (v) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vi) For any claims related to this Agreement, Contractor's insurance coverage shall be primary insurance with respect to the City, its officers, officials, agents, employees, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, agents, employees, and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (vii) The Workers' Compensation insurance policy shall contain, or be endorsed to contain, a waiver of subrogation as to City, its officers, officials, agents, employees, and volunteers. (viii) The Commercial General and Automobile Liability insurance policies shall contain, or be endorsed to contain, a waiver of subrogation as to City, its officers, officials, agents, employees, and volunteers. PROVIDING OF DOCUMENTS - Contractor shall furnish City with all certificate(s) and applicable endorsements effecting coverage required herein All certificates and applicable endorsements are to be received and approved by the City's Risk Manager or designee prior to City's execution of the Agreement and before work commences. All non -ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. 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 underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of Contractor shall also be required to provide all documents noted herein. SUBCONTRACTORS - If Contractor subcontracts any or all of the services to be performed under this Agreement, Contractor shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no Side Agreement is required, Contractor will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by this agreement. L/UI:UJIyl l CIIVCIUPC IU. ! V4000 r:1-LJOU-4Uy.7-O:JUU-I�OCIiMJ:Jy IJrJM 16. CONTRACTOR'S AND SUBCONTRACTOR'S LIABILITY 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) incurred by City, Contractor or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses and any costs or fees to enforce this agreement), arising or alleged to have arisen directly or indirectly out of performance of this Contract. Contractor's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs, or damages caused by the active or sole negligence, or the willful misconduct, of City or any of its officers, officials, employees, agents, or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Contract, 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 Contract. 17. CONTRACTOR'S INTELLECTUAL PROPERTY LIABILITY The Contractor represents and warrants that its performance under this Agreement, and all work, materials and equipment used in its performance of this Agreement, will not infringe or misappropriate any intellectual property rights, such as patent, copyright, trademark or trade secret. In addition to the warranties and indemnities provided elsewhere in this Agreement, the Contractor agrees that it will, at its own expense, indemnify, defend, and hold harmless the City and its directors, officers, employees, and agents against all demands, liabilities, damages, expenses, suits and proceedings that are based on any claim that the services, software, materials or equipment, or any part thereof, or any tool, article or process used in the manufacture thereof, or used in connection with the Contractor's work under this Contract, constitutes a violation, infringement, unauthorized use or misappropriation of any intellectual property of any third parties (including, without limitation, any trade secret, trademark, service mark, copyright, patent, process, method or device). If the institution or resolution of such a suit or proceeding requires the City to procure new non - infringing material or equipment, it may do so at the Contractor's expense. The City will give the Contractor prompt notice in writing of the institution of the suit or proceeding. If any third party files a claim or lawsuit against the City that impacts the City's ownership or use of work performed or materials or equipment supplied under this Agreement, or any material components of this Agreement, the City in its sole discretion may terminate this Contract for Contractor default. This indemnification shall survive the termination or expiration of this Contract. 18. DATA PRIVACY The Contractor will have access to Personally Identifiable Information ("PII") in .01 UUUUJIIJ.II CI IVCluptC ILI./ OM connection with the performance of the Agreement. PII is any information that identifies or describes a person or can be directly linked to a specific individual, including customer information. Examples of PII include, but are not limited to, name, address, phone number, signature, e-mail address, and social security number and water usage data. Customer Personally Identifiably Information, or Customer PII, means any PII relating to the City's customers. The Contractor must ensure and maintain the confidentiality, security, safety, and integrity of all Customer PII, including physical, electronic, and procedural safeguards designed to prevent unauthorized access or use and to protect against known or anticipated threats to the security or integrity of such data. This includes, without limitation, the secure transport, transmission and storage of Customer PII used or acquired in the performance of this Agreement. Notwithstanding the generality of the foregoing requirements, Contractor will adhere to the following requirements concerning Customer PII: A. The Contractor may not, except as authorized or required by law, reveal or divulge to any person or entity any Customer PII that becomes known to it during the term of the Agreement. The Contractor may not use or attempt to use any such information in any manner that may injure or cause loss, either directly or indirectly, to the City or the City's customers participating in the Water Coordination Program. B. The Contractor must maintain policies and programs that prohibit unauthorized disclosure of Customer PII and promote training and awareness of information security policies and practices. The Contractor must comply and must cause its employees, representatives, agents, and subcontractors to comply, with such commercially and operationally reasonable directions as the City may make to promote the safeguarding or confidentiality of Customer PII. C. The Contractor must conduct background checks for employees or Subcontractors that have access to Customer PII or Software hosting Customer PII. D. The Contractor must limit access to computers and networks that host Customer PII, including without limitation through user credentials and strong passwords, data encryption both during transmission and at rest, firewall rules, and network - based intrusion detection software. E. The Contractor agrees to comply with the information handling and confidentiality requirements outlined in the California Information Practices Act (Civil Code sections 1798 et. seq.), California Civil Code Section 1798.81.5, and all other applicable state and federal data security and privacy laws. In addition, the Contractor warrants and certifies that in the performance of this Agreement, it will comply with all applicable statutes, rules, regulations and orders of the United States, and the State of California relating to the handling and confidentiality of Customer PII, including the terms and conditions contained in this Section. F. This Section will survive termination or expiration of this Agreement. `M VVVUJIIJII CIIVCiuptC IU. /H4LOV rJ-GJOU'4Vy.`7-O:JV V'I�OCl.F1J:J.7l,r JF1 19. DATA SECURITY The Contractor must provide those administrative, physical, and technical safeguards for protection of the security, confidentiality, integrity, and availability of Customer PH pursuant to the minimum standards of care recommended by the California Attorney General in her February 2016 report (See https://oag.ca.gov/breachreport20l6). In particular, the Contractor agrees to properly secure and maintain any computer software (hardware and software applications) or electronic media that it will use in the performance of this Agreement. 20. NOTICE OF SECURITY BREACH Within twenty-four hours of discovery, the Contractor must immediately notify the City when it discovers that there may have been a data security incident that has or may have resulted in compromise to Customer PII. The Contractor must immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of any suspected breach or security vulnerability —and must promptly alert the City of any such circumstances, including information sufficient for the City to assess the nature and scope of any suspected data breach. In the event of an unauthorized disclosure of Customer PII, the Contractor will be liable for paying for the cost to remediate such unauthorized disclosure. The Contractor must also provide any information and/or support the City in notifying customers of the breach. This Section will survive termination or expiration of this Agreement. 21. ENVIRONMENTAL COMPLIANCE Contractor shall comply with applicable environmental statues, regulations and guidelines in furnishing the Work under this Agreement, including laws on the disposal of hazardous wastes. Contractor shall bear full and exclusive responsibility for any release of hazardous or nonhazardous substances or disposal of hazardous wastes during the course of furnishing the Work in accordance with this Agreement. Contractor shall be solely responsible for all claims and expense associated with the disposal of hazardous wastes or with the response to or removal of any release, including without limit, payment of any fines or penalties levied against the City by any agency as a result of such release. Contractor shall hold harmless, indemnify and defend the City from any claims, suits, actions, costs or expenses arising from such disposal or release. 22. LABOR CODE REQUIREMENTS The work hereunder constitutes a "public work" as defined in Chapter 1, Part 7, Division 2 of the California Labor Code, and Contractor shall cause the work to be performed as a "public work" in accordance with such Chapter of the California Labor Code. The Council of the City of Fresno has adopted Resolution No.82-297 ascertaining the general prevailing rate of per diem wages and per diem wages for holidays and overtime in the Fresno area for each craft, classification, or type of worker needed in the execution of contracts for the City. A copy of the resolution is on file at the Office of the City Clerk. Actual wage schedules are available at Construction Management Office, 1721 Van Ness Avenue, Fresno, California 93721, (559) 621- 5600. 11 LlUVUJIyii CIIVCiupt: IU. /'+4LOVr:J-L:10V-'#V ��-O:JUU-l.. CfCI�/1J V�lirJM A. Prevailing Wages Contractor shall comply with California Labor Code Sections 1770 to 1780, inclusive. In accordance with Section 1775, the Contractor shall forfeit as a penalty to City an amount as determined by the Labor Commissioner not to exceed $200 for each calendar day or portion thereof for each worker paid less than stipulated prevailing wage rates for such Services or craft in which such worker is employed for any Services done under the contract by him or by any subcontractor under it in violation of the revisions of the Labor Code and in particular, Labor Code Sections 1770 to 1780, inclusive. In addition to said penalty and pursuant to Section 1775, the difference between such stipulated prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the stipulated prevailing wage rate shall be paid to each worker by Contractor. Pursuant to the provisions of Section 1773 of the Labor Code, the City has obtained the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime Work applicable to the Services to be done from the Director of the Department of Industrial Relations. Copies of the prevailing wage rates are on file at the City and are available for review upon request. B. Payroll Records This Agreement is subject to monitoring and enforcement by the DIR pursuant to Labor Code Section 1771.4. The Contractor must post Site notices, as prescribed by regulation. Contractor and each subcontractor shall submit electronic certified payroll records to the California Labor Commissioner in the manner and format set forth in California Labor Code Section 1771.4. The Contractor and all subcontractors shall furnish the records specified in Labor Code Section 1776 directly to the Labor Commissioner, monthly in a format prescribed by the Labor Commissioner. The Contractor's attention is directed to the following provisions of Labor Code Section 1776. The Contractor shall be responsible for the compliance with these provisions by its subcontractors. 23. DEPARTMENT OF INDUSTRIAL RELATIONS DIR REGISTRATION No contractor or subcontractor may be awarded a contract for public Services, unless registered with DIR pursuant California Labor Code section 1725.5. Contractor shall utilize the DIR registered subcontractors identified in Exhibit 2 to perform work under this Agreement. 24. 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, 12 L/UL;UO1Y1I CIIVU1UPU IL/./44GOVr:1-L'JOU-'4Vy.7-O:JUU-I.�CI�MJJ.7l�rJM 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) If Contractor should subcontract all or any portion of the services to be performed under this Agreement, Consultant shall cause each subcontractor to also comply with the requirements of this Section 24. 25. CITY'S WAIVER OF CONDITIONS The waiver of any provision, term, or condition in this Agreement by the City on any particular occasion shall not constitute a general waiver of any other provision, term, or condition, nor a release from the Contractor's obligation to otherwise perform or observe any other provision, term, or condition of the Agreement. 13 UUUUJIYII CIIVCIUFIC IU. /YVLOVr:J-G:JOU-4V �7-O:JUU-I.O CI�MJ:J�VrJM 26. SEVERABILITY If any provisions of this Agreement are declared invalid by a court of law, such decision will not affect the validity of any remaining portion, which shall remain in full force and effect. 27. ATTORNEYS' FEES If any legal proceeding should be instituted by either of the parties to enforce the terms of this Agreement or to determine the rights of the parties hereunder, the prevailing party in said proceeding shall recover, in addition to all court costs, reasonable attorneys' fees. 28. RIGHTS AND REMEDIES OF THE CITY The rights and remedies of the City provided herein shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Agreement. 29. STATUS OF CONTRACTOR LICENSES AND PERMITS Contractor shall possess such State and local licenses, certificates and permits required of the Contractor by law, and shall furnish satisfactory proof to the City upon request that such licenses, certificates and permits are in effect during the entire period of the Agreement. When transporting equipment or materials over public roads, the Contractor shall comply with Division 15, Article 6 of the California Vehicle Code, which requires transportation permits for loads and/or vehicles that exceed statutory limits for size and weight. 30. INDEPENDENT CONTRACTOR (a) In 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 venturer, 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) This Agreement does not evidence a partnership or joint venture between Contractor and City. Contractor shall have no authority to bind City absent City's express written consent. Except to the extent otherwise provided in this Agreement, Contractor shall bear its own costs and expenses in pursuit thereof. (c) 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. In addition, together with its other obligations under this Agreement, Contractor shall be solely responsible for compliance with Social Security 14 L/UUU,DlylI CIIVCIupt; IL/. /44GOUr:]-L'JOU-'#V��-OJU V-l..�Cl../1J:)y IJr JM and unemployment insurance withholding, payment of workers' compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment. It is acknowledged that during the term of this Agreement, Contractor may be providing services to others unrelated to City or to this Agreement. 31. MANNER OF PAYMENT Payment shall be made upon approval of invoices, no more than once a month. All invoices shall reference the Agreement number and shall be sent to Water.AccountsPayable@fresno.gov. The City shall make payments to the Contractor for satisfactory Services performed and the costs of such services within thirty calendar days from the date the City receives the Contractor's invoice. 32. 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. 33. NO THIRD -PARTY 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. [Signatures follow on the next page.] 15 L/ul;Uollyl I CI IVCIupu lu. l4�FLOU r:1-G:JOV-4U�5-O:JUU-l.i�ClJF1JJyl�r JF1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized officers as of the last signature date set forth below. CITY OF FRESNO A California municipal corporation I PocuSigned by: ,t..�.iSSA. rrsrracaRanean Melissa Perales Purchasing Manager Finance Department/Purchasing Unit 12/1/2022 Date: APPROVED AS TO FORM: RINA M. GONZALES I nter' �y�A. UPrney � �(V &IVlaA,IU.A. 12/1/2022 By: Jennifer M. Quintanilla Date Senior Deputy City Attorney ATTEST: TODD STERMER, CMC city cu5igncdby: By: F I Deputy Date Tina M Your Attachments: Exhibit 1 - Statement of Work Exhibit 2 - List of Subcontractors 16 RICHARD HEATH & ASSOCIATES, INC. A C ;a6i.Q -poration By: �a t,S 0-'15A".Ow 10/27/2022 lames O'Bannon Name: Title: chairman of the board LK'_4�� ., Board Chair, Pres or Vice Pres � By: Richard Heath Name: Title: Trustee/Co-owner If corp or LLC., CFO, Treasurer, Secretary or Assistant Secretary REVIEWED. BY: .-QCUSz'gnr by II YtSft,l�. Vt.rt,1'r 10/25/2022 aRG]RI�R]iSCpdd7 Kristen DeFehr LluuuoIIyII CIIvtnupu IU. l4VGOVrJ-G:JOU-'4V J,-OJU V-I,DCl,F1JJ.7lJr JM EXHIBIT 1 STATEMENT OF WORK RHA will provide enrollment and qualification, toilet dye tabs and retrofit assessments, customer program education and giveaways, and the installation of high -efficiency toilets for qualified customers. These services will be provided to approximately 250 customers served by both the City of Fresno (City) and Pacific Gas and Electric Company's (PG&E) Energy Savings Assistance (ESA) program. ENROLLMENT AND QUALIFICATION A Conservation Specialist contractor will meet with the customer in their home and gather enrollment and qualification information utilizing an online questionnaire (via electronic tablet) or a paper -form. The customer information collected will include the following: Customer Name' o Confirmation of water agency Address customer or ratepayer Number of people living in the household Housing type (single- family, multi - home Phone Number OWN family, or mobile Owner or Renter Year home built Email address BASIC INDOOR ASSESSMENT The Conservation Specialist (CS) will conduct a basic indoor assessment of each home. This includes walking through the home with the customer, visually inspecting every room and providing water and energy conservation recommendations based on opportunities observed. During the basic indoor assessment, the CS will assess existing equipment and fixtures for leaks and upgrade opportunities. This will include visually inspecting faucets, showerheads, and toilets. This portion of the assessment is funded 100 percent by PG&E. Additionally, during this assessment, City may elect to have each toilet in the home tested for leaks and retrofit criteria. LIUUU01yjI CIIVCIUptC IU. !�4'#LOVr:J'G:JOU-4U��'000 V'I,OCI,MJU�I�rJM PORTION OF ASSESSMENT FUNDED BY WATER AGENCY Toilet Dye Tab Test: A toilet dye tab is placed in the tank of each toilet for 15 minutes. During the test, the CS will attempt to determine and document the age and the registered gallons per flush (gpf)of each toilet for replacement eligibility. Replacement Assessment: After the 15-minute test, the toilet bowl is checked for blue dye. If the water in the toilet bowl turns blue, it means the flapper is leaking and not forming a proper seal. The toilet will be inspected for manufacture date and stamped gpf to determine retrofit criteria. If the toilet qualifies for replacement, then this information will be documented electronically and entered in the RHA Industry WCP portal. Alternative Water Measure option: If the toilet is too new for replacement, but it is still leaking, the installation contractor can replace the flapper on the leaky toilet to offer additional water savings. WATER AGENCY -SUPPLIED GIVEAWAYS The CS will provide each customer with a City supplied giveaway kit that will consist of any predetermined items. A description of the giveaway items and how they may benefit the customer will be provided. Any leaks or noted water wastage in the home not covered by the program will also be discussed with the customer to amplify water conservation awareness efforts in the region. WATER MEASURE INSTALLATION With the customer's approval, the Conservation Specialist will install needed hot water measures: faucet aerators, low flow showerheads, and thermostatic shower and tub valves. PG&E will fund these measures 100% in almost all cases. When a toilet qualifies to be retrofit, RHA will dispatch a qualified and licensed plumber to do the installation work. The plumber will ensure that all criteria below are met. DIRECT INSTALL TOILET An ultra -efficient, 0.8 gpf toilet will be installed in the home if one or both of the following criteria apply: 1. The toilet was built before 1994 2. The toilet flush rate is greater than 1.6 gallons per flush A maximum of three toilets per household may be installed. To ensure a smooth and satisfactory customer experience, RHA will coordinate the work of all installation contractors to provide expeditious, comprehensive, and convenient delivery of installation services. At all times the contractors will adhere to rigorous program guidelines for installation and site clean-up while in the customer home. uuuu JllylI mlvt:luytC IL/. /V4LOV ru-L:JOV-�FU.7�-ODUU-I�DCIJMJuyI+r J/1 REPORTING: QUALITY ASSURANCE INSPECTIONS AND CUSTOMER SATISFACTION Quality assurance inspections will be conducted on a sample of all work completed for accountability and transparency of our work products. Appropriateness of measure selection, correct installation, and site clean-up are all included in the inspection process. RHA will also conduct randomly selected customers to call and provide feedback on their experience. The results of these inspections and customer calls will be compiled in a quarterly report to City. The quarterly report will entail a detailed description of any quality issues found and an explanation of corrective action, recommendations, and/or referrals. Additional process details are included in the Quality Assurance section of this Scope of Work. SERVICES AND MEASURE PRICING Table 1. Services Toilet Dye Tab Test & Toilet Assessment Distribution of Water Agency Kit Table 2. Installs High -Efficiency Niagara Stealth 0.8 gpf Toilet Install Flange Repair has needed) Angle Stop Replacement has needed) Flapper Replacement (when toilet doesn't qualify for retrofit, but has a leaking flapper) 500 $14.98 250 $17.98 250 $314.65 " $169.00 12 $89.90 $11.00 12 $89.90 $11.00 351 $89.90 $483.65 $100.90 $100.90 $11.00 $100,90 $7,491.45 $4,495.05 $120,913.38 $1,210.81 $1,210.81 $3,531.54 uuuuoiyi mivuiuptC lu. /4'4GOV r:1-L"JOV-�FVy�-OJVV-1,�Cl./1JJ.7lirJM Table 3. Program Administration Fees Program Management (10% of all services) , $13,885.30 Program Launch Fee NOTE: Pricing assumes the following: $4,000.00 • All materials will be billed at actual material cost, inclusive of tax and shipping fees. Materials invoices shall be available upon request. Variance of materials costs exceeding 10% above the estimate shall be submitted in writing for approval by FCWD prior to purchase. ■ Approximately 2 toilets / home 50% of toilets will qualify to be retrofit ■ Approximately 5% of toilets will need a flange repair and 5% will need an angle stop replacement • Approximately 6% of toilets assessed will require a flapper replacement PROGRAM MANAGEMENT RHA will manage all aspects of the Water Coordination Program. From the training of staff and contractors, through program closeout, our skilled management team will ensure the program is professionally managed to meet client objectives. RHA utilizes a project management database integrating a scheduling tool, project tracking, and online approval mechanisms to keep projects running smoothly. MANAGEMENT FEE This Pilot program is designed to be turnkey and entirely hands off for City. RHA will do all the administrative work for the program. The services and measure pricing above cover the direct delivery of program services. RHA will add a 10% management fee for all services delivered and measures billed to cover program management costs. PROGRAM LAUNCH FEE There will be a $4,000.00 customization fee billable at test program initiation. The fee covers the following program expenses: Table 4. Program Launch Expenses Contractor Negotiation I $1,500.00 Develop and Conduct Custom Contractor Training $1,200.00 Customize Forms and Tablet Templates for Water Coordination $500.00 Program Application UUUU,31y1I CIIVtlIUpt; IU.f•F4GOVr:J-L"JOU-YU�7-O:lUU-I�DCI../'1J:J7lir JF1 Train Accounting Staff & Call Center on $300.00 Program Admin Needs Call Center Telephone Quality $500.00 Assurance Time ` Final Pilot Report Total CONTRACT VALUE $ 0.00 $4,000.00 This WCP Pilot program is scaled to serve approximately 250 low-income City customers. The average number of homes within the City served by our ESA contractors is 6,000. Therefore, if more homes are available to serve within the budget then the contract will be set at a maximum not to exceed the dollar amount of $158,000.00. PREVAILING WAGE The fees include paying residential plumbing contractors who work in homes within Fresno County, standard residential plumbing specialist hourly prevailing wage rates for direct install work. All participating ESA and/or Water Coordination Program contractors must agree to comply with the Department of Industrial Relations standards for payment and reporting for this project. A copy of the applicable California Labor Code provisions can be accessed on the Internet at http://www.dir.ca.gov/Publie-Works/Publ!cWorks.html. QUALITY ASSURANCE Phone Inspections/Customer Satisfaction calls Quality assurance phone calls will be conducted on a sample of all work completed. RHA will inspect for appropriateness of measure selection, correct installation, and site cleanup in the telephone inspection process. Telephone inspections will be completed on a minimum of 5 percent of all homes served to "spot-check" installed water measures and services and to remotely verify work completed. The inspection also provides an opportunity for RHA to engage customers and measure their satisfaction. The results of these inspections and customer engagement will be compiled and included in quarterly reports. Documentation of Installation Photos The Water Coordination Program requires any direct -install work to include qualifying photos. The contractor will upload photos to the customer record of the qualifying (old) toilet to be replaced, and the (new) toilet after it has been installed. This documentation method also applies to the direct installation of toilet flappers, flange repairs, and angle stop replacements. All photos will be reviewed by the program manager before approval to ensure work was done according to specifications. UUUUJllyll CIIVCIupu IU./4VGOVr:J-L"JOV-'4V��-O:JUU-I,DCI./'1JJy VrJM CONTRACT VALUE SUMMARY Table 5. Contract value Summary Measures / Services Total Toilet Dye Tab & Assessment $7,491.45 Water Agency Giveaway Item $4,495.05 High -Efficiency Toilet — PW Rate $120,913.38 Flange Repair $1,210.81 Angle Stop Replacement $1,210.81 Flapper Replacement $3,531.54 Subtotal $138,853.04 Program Management $13,885.30 Program Launch Fee $4,000.00 Total Estimated for 6 Month Pilot $156,738.35 Not -to -Exceed Contract Amount $158,000.00 UVt:UJlyll CIlvwu tC IU. /4'#GOVrV-LVOV-'#V��-O:1UV-1�D Cl�F1JV.7lJrJM EXHIBIT 2 LIST OF SUBCONTRACTORS BIDDER'S NAME: (Submit with Bid Proposal) CALIFORNIA LABOR CODE SECTION 1777.5 PLEASE ANSWER YES OR NO: Was the undersigned Bidder in the last six months determined to havewillfully failed to complywith the provisions of California Labor Code Section 1777.5 relating to apprenticeson Public Works? YES NO LIST OF SUBCONTRACTORS Pursuant to the provisions of California Public Contract Code sections 4100 to 4113 inclusive, the undersigned hereby designates below, for the Project, opposite various portions of work, the names, locations and license number of the places of business of each Subcontractor who will perform work or laboror render service to the Contractor in or about the construction of the Work or improvement, or a subcontractor licensed by the State of California who, under subcontract to the prime contractor, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in theplans and specifications, in an amount in excess of one-half of 1 percent of the prime contractor's total bid or, in the case of bids or offers for the construction of streets or highways, including bridges, in excess of one-half of 1 percent of the prime contractor's total bid or ten thousand dollars ($10,000), whichever is greater.All work not listed below shall be performed by the undersigned Bidder. It is understood that the Bidder, if awarded the Contract, shall not substitute any Subcontractor in place of the Subcontractors herein designated, or sublet or subcontract any of the work as to which a Subcontractor is not herein designated,without the written consent of the City. The subletting or subcontracting of any work for which there was noSubcontractor designated in the original bid may be permitted only in case of public emergency or necessity, and only after the City Council makes findings in a Resolution setting forth facts constituting the emergencyor necessity. List one firm only for each portion of work. NAME AND LICENSE NUMBER LOCATION M WORK TO BE SUBLET REGISTRATION #