1119-ISI Water Co-Enhancement (missing docs)
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CITY OF SANFORD AGREEMENT
FOR UTILITY REVENUE ENHANCEMENT
SERVICES WITH ISI WATER COMPANY, INC.
(REFERRED TO HEREIN AS
WATER COMPANY OF AMERICA}
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THIS AGREEMENT made and entered into the u--:'1!..r day of ,
2006 by and between the City of Sanford, 300 North Park Avenue, anfo ,Florida
32771, a municipal corporation of the State of Florida, holding tax exempt status,
hereinafter referred to as the "CITY" and ISI Water Company, Inc., a corporation
organized and existing under the laws of the State of Texas, with its principal office in
Houston, Texas, and authorized to do business in the State of Florida, hereinafter
referred to as Water Company of America ("WCA"), hereinafter referred to as the
"CONSULTANT" .
The CITY and the CONSULTANT are collectively referred to herein as the
parties.
WITNESSETH:
WHEREAS, the CONSULTANT has entered into an agreement to provide
services to the City of Lakeland, pursuant to a Contract for Services, dated October 18,
2004 which is attached hereto along with the amendments thereto (the Exhibits
hereinafter sometime referred to as the "City of Lakeland Agreement"); and
WHEREAS, the CITY desires to retain the CONSULTANT for the work identified
in the specifications outlined in the City of Lakeland Agreement and for the periods set
forth in the City of Lakeland Agreement; and
WHEREAS, the CITY desires to retain the CONSULTANT to furnish services
and perform those tasks outlined above, and generally described in Section 2, and
made part hereof, as subsequently specifically set out in Work Orders to be issued
under this Agreement; and
WHEREAS, the CITY desires to employ the CONSULTANT for the performance
to support the activities, programs and projects of the CITY upon the terms and
conditions hereinafter set forth, and the CONSULTANT is desirous of providing and
performing such goods/services upon said terms and conditions; and
WHEREAS, the CONSULTANT hereby warrants and represents to the CITY that
it is competent and otherwise able to provide goods and services to the CITY; and
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WHEREAS, all submissions submitted by the CONSULTANT in its materials to
the City of Lakeland Agreement are hereby incorporated herein to the extent not
inconsistent with the terms and conditions as set forth herein; and
WHEREAS, the CITY desires to engage the CONSULTANT for field services
necessary to maximize the billable revenue for the CITY's water, wastewater and
stormwater service; and
WHEREAS, the CONSULTANT desires to provide services to the CITY, as an
independent contractor of the CITY, regarding goods and services as needed; and
WHEREAS, this Agreement is not subject to the provisions of the Consultants
Competitive Negotiations Act; and
WHEREAS, the CITY desires to use the expertise and knowledge of the
CONSULTANT.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed by and between the parties
hereto as follows:
SECTION 1: GENERAL PROVISIONS.
(a). The term "CONSULTANT" as used in this Agreement is hereby defined
herein as that person or entity, including employees, servants, partners, principals,
agents and assignees providing services under this Agreement.
(b). The CONSULTANT acknowledges that the CITY may retain other goods
or service providers to provide the same goods or services for CITY projects. The
CONSULTANT acknowledges that the CITY, at the CITY's option, may request
proposals from the CONSULTANT and the other goods or service providers for CITY
projects. The CITY reserves the right to select which goods or service providers shall
provide goods or services for the CITY projects.
(c). The CONSULTANT agrees to provide and ensure coordination between
the goods and/or service providers.
(d). The recitals herein are true and correct and form and constitute a material
part of this Agreement upon which the parties have relied.
(e). Each party hereto represents to the other that it has undertaken all
necessary actions to execute this Agreement, and that it has the legal authority to enter
into this Agreement and to undertake all obligations imposed on it. The person(s)
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executing this Agreement for the CONSULTANT certify that he/she/they is/are
authorized to bind the CONSULTANT fully to the terms of this Agreement.
(f). Time is of the essence of the lawful performance of the duties and
obligations contained in this Agreement, to include, but not be limited to, each
Purchase/Work Order. The parties covenant and agree that they shall diligently and
expeditiously pursue their respective obligations set forth in this Agreement and each
Purchase/Work Order.
(g). When the term "law" is used herein, said phrase shall include statutes,
codes, rule and regulations of whatsoever type or nature enacted or adopted by a
governmental entity of competent jurisdiction.
(h). Packages must be plainly marked with the shipper's name and the
Purchase Order Number; charges are not allowed for boxing or crating unless
previously agreed upon in writing.
(i). All materials must be shipped F.O.B. Destination. The CITY will not pay
freight or express charges, except by previous agreement. The CONSULTANT shall
prepay shipping charges and add to invoice. Delivery must actually be affected within
the time stated on Purchase Order unless delay is caused by any act or omission of the
CITY, or any employee of the CITY, or by changes ordered by the CITY, or by strikes,
lock outs, fire, unusual delay in transportation, unavoidable casualties, or any other
causes of force majeure not resulting from the inactions or actions of the
CONSULTANT and beyond the CONSULTANT's control, or by delay authorized by the
CITY pending a decision, or by any cause which the CITY shall decide to justify the
delay, the time of completion shall be extended for such reasonable time as the CITY
and the CONSULTANT may decide. Deliveries shall be made between 8:00 A.M. and
5:00 P.M., Monday through Friday unless otherwise stated.
(j). The CONSULTANT shall furnish the CITY with a current Material Safety
Data Sheet (MSDS) on or before delivery of each and every hazardous chemical or
substance purchased. Appropriate labels and MSDSs shall be provided for all
shipments.
(k). The CONSULTANT hereby guarantees the CITY that all material,
supplies, services and equipment as listed on a Purchase Order meet the requirements,
specifications and standards as provided for under the Federal Occupations Safety and
Health Act of 1970, from time to time amended and in force on the date hereof.
(I). It is agreed that nothing herein contained is intended or should be
construed as in any manner creating or establishing a relationship of co-partners
between the parties, or as constituting the CONSULTANT (including, but not limited to,
its officers, employees, and agents) the agent, representative, or employee of the CITY
for any purpose, or in any manner, whatsoever. The CONSULTANT is to be and shall
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remain forever an independent contractor with respect to all services performed under
this Agreement.
(m). Persons employed by the CONSULTANT in the provision and
performance of the goods and/or services and functions pursuant to this Agreement
shall have no claim to pension, workers compensation, unemployment compensation,
civil service or other employee rights or privileges granted to the CITY officers and
employees either by operation of law or by the CITY.
(n). No claim for services furnished by the CONSULTANT not specifically
provided for herein shall be honored by the CITY.
SECTION 2: SCOPE OF SERVICES.
The CONSULTANT shall provide goods and service in accordance with Exhibit
"A".
SECTION 3: PURCHASEIWORK ORDERS.
(a). The provision of goods and/or services to be performed under the
provisions of this Agreement shall be commenced upon the execution of this Agreement
and receipt by the CONSULTANT of a written Purchase/Work Order issued by the CITY
on a form provided by the CITY. Purchase/Work Orders executed by the CITY shall
include a detailed description of quantities, services, compensation and a completion
schedule. Compensation will be in accordance with the Lakeland agreement attached
hereto, with the exception of the fee for the Finds being reduced from 55% to 50%. The
CONSULTANT shall review Purchase/Work Orders and notify the CITY in writing of
inadequacies for the CITY correction, if warranted.
(b). If the services required to be performed by a Work Order is clearly
defined, the Work Order shall be issued on a Fixed Fee basis. The CONSULTANT
shall perform all services required by the Work Order but, in no event, shall the
CONSULTANT be paid more than the negotiated Fixed Fee amount stated therein.
(c). If the services are not clearly defined, the Work Order may be issued on a
"Time Basis Method" and contain a Not-to-Exceed amount. If a Not-to-Exceed amount
is provided, the CONSULTANT shall perform all worked required by the Work Order;
but, in no event, shall the CONSULTANT be paid more than the Not-to-Exceed amount
specified in the applicable Work Order.
(d). If the services are not clearly defined, the Work Order may be issued on a
"Time Basis Method" and contain a Limitation of Funds amount. The CONSULTANT is
not authorized to exceed that amount without the prior written approval of the CITY.
Said approval, if given by the CITY, shall indicate a new Limitation of Funds amount.
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The CONSULTANT shall advise the CITY whenever the CONSULTANT has incurred
expenses on any Work Order that equals or exceeds eighty percent (80%) of the
Limitation of Funds amount.
(e). For Work Orders issued on a "Fixed Fee Basis," the CONSULTANT may
invoice the amount due based on the percentage of total Work Order services actually
performed and completed; but, in no event, shall the invoice amount exceed a
percentage of the Fixed Fee amount equal to a percentage of the total services actually
completed. The CITY shall pay the CONSULTANT ninety percent (90%) of the
approved amount on Work Orders issued on a "Fixed Fee Basis".
(f). For Work Orders issued on a "Time Basis Method" with a Not-to-Exceed
amount, the CONSULTANT may invoice the amount due for actual work hours
performed but, in no event, shall the invoice amount exceed a percentage of the Not-to-
Exceed amount equal to a percentage of the total services actually completed. The
CITY shall pay the CONSULTANT ninety percent (90%) of the approved amount on
Work Orders issued on a "Time Basis Method" with a Not-to-Exceed amount.
(g). Each Work Order issued on a "Fixed Fee Basis" or "Time Basis Method"
with a Not-to-Exceed amount shall be treated separately for retainage purposes. If the
CITY determines that work is substantially complete and the amount retained is
considered to be in excess, the CITY may, at its sole and absolute discretion, release
the retainage or any portion thereof.
(h). For Work Orders issued on a "Time Basis Method" with a Limitation of
Funds amount, the CONSULTANT may invoice the amount due for services actually
performed and completed. The CITY shall pay the CONSULTANT one hundred percent
(100%) of the approved amount on Work Orders issued on a "Time Basis Method" with
a Limitation of Funds amount.
(i). Purchase Orders shall detail the goods procured.
(j). Payments shall be made by the CITY to the CONSULTANT when
requested as work progresses for services furnished, but not more than once monthly.
Each Work Order shall be invoiced separately. The CONSULTANT shall render to the
CITY, at the close of each calendar month, an itemized invoice properly dated,
describing any services rendered, the cost of the services, the name and address of the
CONSULTANT, Work Order Number, Contract Number and all other information
required by this Agreement.
SECTION 4: CONSULTANT UNDERSTANDING OF GOODS/SERVICES
REQUIRED.
Execution of this Agreement by the CONSULTANT is a representation that the
CONSULTANT is familiar with the goods and/or services to be provided and/or
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performed and with local conditions. The CONSULTANT shall make no claim for
additional time or money based upon its failure to comply with this Agreement. The
CONSULTANT has informed the CITY, and hereby represents to the CITY, that it has
extensive experience in performing and providing the services and/or goods described
in this Agreement and to be identified in the Purchase/Work Orders, and that it is well
acquainted with the components that are properly and customarily included within such
projects and the requirements of laws, ordinance, rules, regulations or orders of any
public authority or licensing entity having jurisdiction over the CITY projects. Execution
of a Purchase/Work Order shall be an affirmative and irrefutable representation by the
CONSULTANT to the CITY that the CONSULTANT is fully familiar with any and all
requisite work conditions of the provisions of the goods and/or services.
SECTION 5: CHANGE ORDERS.
(a). The CITY may revise the scope of goods or services set forth in any
particular Purchase/Work Order.
(b). Revisions to any Purchase/Work Order shall be authorized in writing by
the CITY as a Change Order and are subject to approval by the CONSULTANT. Each
Change Order shall include a schedule of completion for the goods and/or services
authorized. Change Orders shall identify this Agreement and the appropriate
Purchase/Work Order number. The Change Orders may contain additional instructions
or provisions specific upon certain aspects of this Agreement pertinent to the goods
and/or services to be provided. Such supplemental instructions or provisions shall not
be construed as a modification of this Agreement. An Agreement between the parties
on and execution of any Change Order shall constitute a final settlement and a full
accord and satisfaction of all matters relating to the change and to the impact of the
change on unchanged goods and/or work, including all direct and indirect costs of
whatever nature, and all adjustments to the CONSULTANT's schedule.
SECTION 6: CONSULTANT RESPONSIBILITIES.
(a). The CONSULTANT shall be responsible for the professional quality,
accepted standards, technical accuracy and the coordination of all goods and services
furnished by the CONSULTANT under this Agreement as well as the conduct of its staff,
personnel, employees and agents. The CONSULTANT shall work closely with the CITY
on all aspects of the provision of the goods and/or services. With respect to services,
the CONSULTANT shall be responsible for the professional quality, technical accuracy,
competence, methodology, accuracy and the coordination of all of the following which
are listed for illustration purposes and not as a limitation: documents, analysis, reports,
data, plans, plats, maps, surveys, specifications, and any and all other services of
whatever type or nature furnished by the CONSULTANT under this Agreement. The
CONSULTANT shall, without additional compensation, correct or revise any errors or
deficiencies in his plans, analysis, data, reports, designs, drawings, specifications, and
any and all other services of whatever type or nature.
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(b). Neither the CITY review, approval or acceptance of, nor payment for, any
of the goods or services required shall be construed to operate as a waiver of any rights
under this Agreement or of any cause of action arising out of the performance of this
Agreement and the CONSULTANT shall be and remain liable to the CITY in
accordance with applicable law for all damages to the CITY caused by the
CONSULTANT's negligent or improper performance or failure to perform any of the
goods and/or services furnished under this Agreement.
(c). The rights and remedies of the CITY, provided for under this Agreement,
are in addition to any other rights and remedies provided by law.
(d). Time is of the essence in the performance of all services provided by the
CONSULTANT under the terms of this Agreement and each and every Purchase/Work
Order, however, if the CONSULTANT is delayed at any time in the provision of goods
and/or services by any act or omission of the CITY, or by changes ordered by the CITY,
or by strikes, lock outs, fire, unusual delay in transportation, unavoidable casualties, or
any other causes of force majeure not resulting from the inactions or actions of the
CONSULTANT and beyond the CONSULTANT's control, or by delay authorized by the
CITY pending a decision, or by any cause which the CITY shall decide to justify the
delay, the time for delivery of goods or completion of services shall be extended for
such reasonable time as the CITY and the CONSULTANT may decide.
SECTION 7: CITY RIGHTS AND RESPONSIBILITIES.
(a). The CITY shall reasonably cooperate with the CONSULTANT in a timely
fashion at no cost to the CONSULTANT as set forth in this Section.
(b). The CITY shall furnish a CITY representative, as appointed by the
designated representative... to administer, review and coordinate the provision of
services under Purchase/Work Orders.
(c). The CITY shall make CITY personnel available where, in the CITY's
opinion, they are required and necessary to assist the CONSULTANT. The availability
and necessity of said personnel to assist the CONSULTANT shall be determined solely
at the discretion of the CITY.
(d). The CITY shall examine all of the CONSULTANT's goods and/or services
and indicate the CITY's approval or disapproval within a reasonable time so as not to
materially delay the provisions of the goods and/or services of the CONSULTANT.
(e). The CITY shall transmit instructions, relevant information, and provide
interpretation and definition of CITY policies and decisions with respect to any and all
materials and other matters pertinent to the services covered by this Agreement.
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(f). The CITY shall give written notice to the CONSULTANT whenever the
CITY's designated representative knows of a development that affects the goods and/or
services provided and performed under this Agreement, timing of the CONSULTANT
provision of goods and/or services, or a defect or change necessary in the goods and/or
services of the CONSULTANT.
(g). The rights and remedies of the CITY provided for under this Agreement
are in addition to any other rights and remedies provided by law; the CITY may assert
its right of recovery by any appropriate means including, but not limited to, set-off, suit,
withholding, recoupment, or counterclaim, either during or after performance of this
Agreement.
(h). Each party shall be entitled to recover any and all legal costs including,
but not limited to, attorney fees and other legal costs that it may incur in any legal
actions it may pursue in the enforcement of the terms and conditions of this Agreement
or the responsibilities of the parties hereunder deriving from this Agreement.
(i). The failure of the CITY to insist in any instance upon the strict
performance of any provision of this Agreement, or to exercise any right or privilege
granted to the CITY hereunder shall not constitute or be construed as a waiver of any
such provision or right and the same shall continue in force.
(j). Neither the CITY's review, approval or acceptance of, nor payment for,
any of the goods and/or services required shall be construed to operate as a waiver of
any rights under this Agreement nor or any cause of action arising out of the
performance of this Agreement and the CONSULTANT shall be and always remain
liable to the CITY in accordance with applicable law for any and all damages to the
CITY caused by the CONSULTANT's negligent or wrongful provision or performance of
any of the goods and/or services furnished under this Agreement.
(k). All deliverable analysis, reference data, survey data, plans and reports or
any other form of written instrument or document that may result from the
CONSULTANT's services or have been created during the course of the
CONSULTANT's performance under this Agreement shall become the property of the
CITY after final payment is made to the CONSULTANT.
SECTION 8: COMPENSATION.
(a). Compensation to the CONSULTANT shall be as set forth in each CITY
Purchase/Work Order.
(b). There are no reimbursable expenses to be paid to the CONSULTANT.
SECTION 9. INVOICE PROCESS.
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(a). Invoices, which are in an acceptable form to the CITY and without
disputable items, which are received by the CITY, will be processed for payment within
thirty (30) days of receipt by the CITY.
(b). The CONSULTANT will be notified of any disputable items contained in
invoices submitted by the CONSULTANT within fifteen (15) days of receipt by the CITY
with an explanation of the deficiencies.
(c). The CITY and the CONSULTANT will make every effort to resolve all
disputable items contained in the CONSULTANT invoices.
(d). Each invoice shall reference this Agreement, the appropriate
Purchase/Work Order and Change Order, if applicable, and billing period.
(e). The Florida Prompt Payment Act shall apply when applicable. A billing
period represents the dates in which the CONSULTANT completed goods and/or
services referenced in an invoice.
(f). Invoices are to be forwarded directly to:
Finance Department
City of Sanford
300 North Park Avenue
Sanford, Florida 32771
SECTION 10: COMMENCEMENT/IMPLEMENTATION SCHEDULE OF
AGREEMENT.
(a). The CONSULTANT shall commence th~ provIsion of goods and/or
services as described in this Agreement immediately upbn execution of this Agreement
and receipt of a Purchase/Work Order. The CITY may seek other firms to provide the
same services.
(b). The CONSULTANT and the CITY agree to make every effort to adhere to
the schedules established for the various Purchase/Work Orders as described in each
Purchase/Work Order. However, if the CONSULTANT is delayed at any time in the
provision of goods and/or services by any act or omission of the CITY, or of any
employee of the CITY, or by any other contractor employed by the CITY, or by changes
ordered by the CITY, or by strikes, lock outs, fire, unusual delay in transportation,
unavoidable casualties, or any other causes of force majeure not resulting from the
inactions or actions of the CONSULTANT and beyond the CONSULTANT control which
would not reasonably be expected to occur in connection with or during performance or
provision of the goods and/or services, or by delay authorized by the CITY pending a
decision, or by any cause which the CITY shall decide to justify the delay, the time of
completion shall be extended for such reasonable time as the CITY and CONSULTANT
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agree. It is further expressly understood and agreed that the CONSULTANT shall not
be entitled to any damages or compensation, or be reimbursed for any losses on
account of any delay or delays resulting from any of the aforesaid causes or any other
cause whatsoever.
SECTION 11. TERM/LENGTH OF AGREEMENT.
The initial term of this Agreement shall be for a period coextensive with the City
of Lakeland Agreement or as set forth in the particular Purchase/ Work Order.
SECTION 12: DESIGNATED REPRESENTATIVES.
(a). The CITY designates the City Manager or his designated representative,
to represent the CITY in all matters pertaining to and arising from the work and the
performance of this Agreement.
(b). The City Manager, or his designated representative, shall have the
following responsibilities:
(1). Examination of all work and rendering, in writing, decisions
indicating the CITY's approval or disapproval within a reasonable time so as not to
materially delay the work of the CONSULTANT;
(2). Transmission of instructions, receipt of information, and
interpretation and definition of CITY's policies and decisions with respect to design,
materials, and other matters pertinent to the work covered by this Agreement;
(3). Giving prompt written notice to the CONSULTANT whenever the
CITY's designated representative knows of a defect or change necessary in the project;
and
(4). Coordinating and managing the CONSULTANT for preparation of
any necessary applications to governmental bodies, to arrange for submission of such
applications.
(c). Until further notice from the City Manager the designated representative
for this Agreement is:
Bill Smith, Purchasing Director
City of Sanford
City Hall
300 North Park Avenue
Sanford, Florida 32771
Telephone Number: 407-330-5600
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(d). The CONSULTANT's designated representative is:
Steven M. Hooper
General Manager
ISI Water Company, Inc.
711 Rankin Road
Houston, Texas 77073
SECTION 13: TERMINA TION/SUSPENSION OF AGREEMENT.
(a). The CITY may terminate this Agreement or any Purchase/Work Order for
convenience at any time or this Agreement or any Purchase/Work Order for anyone or
more of the reasons as follows:
(1). If, in the CITY's opinion, adequate progress to be provided or under
a Purchase/Work Order is not being made by the CONSULTANT due to the
CONSULTANT's failure to perform, however, failure to perform does not include delay
by the CONSULTANT at any time in the provision of goods and/or services by any act
or omission of the CITY, or of any employee of the CITY, or by any other contractor
employed by the CITY, or by changes ordered by the CITY, or by strikes, lock outs, fire,
unusual delay in transportation, unavoidable casualties, or any other causes of force
majeure not resulting from the actions or inactions of the CONSULTANT and beyond
the CONSULTANT's control, or by delay authorized by the CITY pending a decision, or
by any cause which the CITY shall decide to justify the delay; or
(2). If, in the CITY's opinion, the quality of the goods and/or services
provided by the CONSULTANT is/are not in conformance with commonly accepted
professional standards, standards of the CITY, and the requirements of Federal and/or
State regulatory agencies, and the CONSULTANT has not corrected such deficiencies
in a timely manner as reasonably determined by the CITY; or
(3). If the CONSULTANT or any principal officer of the CONSULTANT
is indicted or has a direct charge issued against him for any crime arising out of or in
conjunction with any work that has been performed by the CONSULTANT; or
(4). If the CONSULTANT becomes involved in either voluntary or
involuntary bankruptcy proceedings, or makes an assignment for the benefit of
creditors; or
(5). If the CONSULTANT violates the Standards of Conduct provisions
herein or any provision of Federal, State or local law or any provision of the CITY's
Code of Conduct.
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(b). In the event of any of the causes described in this Section, the CITY's
designated representative may send a certified letter to the CONSULTANT requesting
that the CONSULTANT show cause why the Agreement or any Purchase/Work Order
should not be terminated. If assurance satisfactory to the CITY of corrective measures
to be made within a reasonable time is not given to the CITY within seven (7) calendar
days of the date of the letter, the CITY may consider the CONSULTANT to be in default,
and may then immediately terminate this Agreement or any Purchase/Work Order in
progress under this Agreement.
SECTION 14. TERMINATION BY CONSULTANT FOR CAUSE.
(a). The CONSULTANT may cancel this Agreement if:
(1). The CITY materially fails to meet its obligations and responsibilities
as contained in the CITY's Rights and Responsibilities; or
(2). The CITY fails to pay the CONSULTANT in accordance with this
Agreement.
(b). In the event of either of the causes described in Subsection (a), the
CONSULTANT shall send a certified letter requesting that the CITY show cause why
the Agreement should not be terminated. If adequate assurances are not given to the
CONSULTANT within fifteen (15) days of the receipt by the CITY of said show cause
notice, then the CONSULTANT may consider the CITY to be in default, and may
immediately terminate this Agreement.
SECTION 15. TERMINATION BY THE CITY WITHOUT CAUSE.
(a). Notwithstanding any other provision of this Agreement, the CITY shall
have the right at any time to terminate this Agreement in its entirety without cause, or
terminate any specific Purchase/Work Order without cause, if such termination is
deemed by the CITY to be in the public interest, in writing of deficiencies or default in
the performance of its duties under the Agreement and the CONSULTANT shall have
ten (10) days to correct same or to request, in writing, a hearing.
(b). Failure of the CONSULTANT to remedy said specified items of deficiency
or default in the notice by either the CITY's designated representative within ten (10)
days of receipt of such notice of such decisions, shall result in the termination of the
Agreement, and the CITY shall be relieved of any and all responsibilities and liabilities
under the terms and provisions of the Agreement.
(c). In the event that this Agreement is terminated, the CITY shall identify any
specific Purchase/Work Order(s) being terminated and the specific Purchase/Work
Order(s) to be continued to completion pursuant to the provisions of this Agreement.
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(d). This Agreement will remain in full force and effect as to all authorized
Purchase/Work Order(s) that is/are to be continued to completion.
SECTION 16. PAYMENT IN THE EVENT OF TERMINATION.
In the event this Agreement or any Purchase/Work Order is terminated or
canceled prior to final completion with or without cause, payment for the unpaid portion
of the services provided by the CONSULTANT which has been approved by the City up
to the date of termination and any additional services which likewise have been
approved by the CITY shall be paid to the CONSULTANT.
SECTION 17. ACTION FOLLOWING TERMINATION.
Upon receipt of notice of termination, given by either party, the terminated party
shall promptly discontinue the provision of all goods and/or services, unless the notice
provides otherwise.
SECTION 18:
DISCRIMINATION.
EQUAL
OPPORTUNITY
EMPLOYMENT INON-
The CONSULTANT agrees that it will not discriminate against any employee or
applicant for employment for work under this Agreement because of race, color,
religion, sex, age, national origin or disability and will take affirmative steps to insure
that applicants are employed and employees are treated during employment without
regard to race, color, religion, sex, age, national origin or disability. This provision shall
include, but not be limited to, the following: employment, upgrading, demotion or
transfer; recruitment advertising; layoff or termination; rates of payor their forms or
compensation; and selection for training, including apprenticeship. The CONSULTANT,
moreover, shall comply with all the requirements as imposed by the Americans with
Disability Act, the regulations of the Federal government issued thereunder, and any
and all requirements of Federal or State law related thereto.
SECTION 19: INDEMNITY AND INSURANCE.
(a). To the fullest extent permitted by law, the CONSULTANT shall indemnify,
hold harmless and defend the CITY, its agents, servants, officers, officials and
employees, or any of them, from and against any and all claims, damages, losses, and
expenses including, but not limited to, attorneys fees and other legal costs such as
those for paralegal, investigative, and legal support services, and the actual costs
incurred for expert witness testimony, arising out of or resulting from the performance or
provision of goods and/or services required under this Agreement, provided that same
is caused in whole or part by the error, omission, negligent act, failure to act,
malfeasance, misfeasance, conduct, or misconduct of the CONSULTANT, its agents,
servants, officers, officials, employees, or subcontractors.
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(b). In accordance with Section 725.06, Florida Statutes, adequate
consideration has been provided to the CONSULTANT for this obligation, the receipt
and sufficiency of which is hereby specifically acknowledged.
(c). Nothing herein shall be deemed to affect the rights, privileges, and
immunities of the CITY as set forth in Section 768.28, Florida Statutes, or other
controlling Florida law.
(d). In claims against any person or entity indemnified under this Section by an
employee of the CONSULTANT or its agents or subcontractors, anyone directly or
indirectly employed by them or anyone for whose acts they may be liable, the
indemnification obligation under this Section shall not be limited by a limitation on
amount or type of damages, compensation or benefits payable by or for the
CONSULTANT or its agents or subcontractors, under Workers Compensation acts,
disability benefits acts, or other employee benefit acts.
(e). The execution of this Agreement by the CONSULTANT shall obligate the
CONSULTANT to comply with the indemnification provision in this Agreement;
provided, however, that the CONSULTANT must also comply with the provisions of this
Agreement relating to insurance coverage.
SECTION 20. INSURANCE.
(a). The CONSULTANT shall obtain or possess and continuously maintain the
following insurance coverage, from a company or companies, with a Best Rating of A-
or better, authorized to do business in the State of Florida and in a form acceptable to
the City and with only such terms and conditions as may be acceptable to the CITY:
(1). Worker's Compensation/Employers's Liability: The CONSULTANT
will provide Worker's Compensation/Employer's Liability for all employees. The limits
will be $100,000 each accident, $500,000 disease policy limits, $100,000 disease limit
each employee.
(2). Commercial General Liabilitv: The CONSULTANT will provide
coverage for all claims arising from bodily injury, sickness, disease, or death of any
person other than the CONSULTANT's employees or damage to property of the CITY
or others arising out of any act or omission of the CONSULTANT or his/her/their agents,
employees or subcontractors. The liability limits shall not be less than $300,000 for
bodily injury and single limit each occurrence for property damage.
(3). Business Automobile Liability: The CONSULTANT shall provide
complete coverage for each occurrence, bodily injury not less than $300,000 and
proeprty dmage single limit each equivalent.
14
.'
(b). All insurance other than Workers Compensation and Professional Liability
that must be maintained by the CONSULTANT shall specifically include the CITY as an
additional insured.
(c). The CONSULTANT shall provide Certificates of Insurance to the CITY
evidencing that all such insurance is in effect prior to the issuance of the first
Purchase/Work Order under this Agreement from the CITY. These Certificates of
Insurance shall become part of this Agreement. Neither approval by the CITY nor
failure to disapprove the insurance furnished by a CONSULTANT shall relieve the
CONSULTANT of the CONSULTANT's full responsibility for performance of any
obligation including the CONSULTANT's indemnification of the CITY under this
Agreement. If, during the period which an insurance company is providing the insurance
coverage required by this Agreement, an insurance company shall: (1) lose its
Certificate of Authority, (2) no longer comply with Section 440.57, Florida Statutes, or
(3) fail to maintain the requisite Best's Rating and Financial Size Category, the
CONSULTANT shall, as soon as the CONSULTANT has knowledge of any such
circumstance, immediately notify the CITY and immediately replace the insurance
coverage provided by the insurance company with a different insurance company
meeting the requirements of this Agreement. Until such time as the CONSULTANT has
replaced the unacceptable insurer with insurance acceptable to the CITY, the
CONSULTANT shall be deemed to be in default of this Agreement.
(d). The insurance coverage shall contain a provision that requires that prior to
any changes in the coverage, except increases in aggregate coverage, thirty (30) days
prior notice will be given to the CITY by submission of a new Certificate of Insurance.
(e). The CONSULTANT shall furnish Certificate of Insurance directly to the
CITY's designated representative. The certificates shall clearly indicate that the
CONSULTANT has obtained insurance of the type, amount and classification required
by this Agreement.
(f). Nothing in this Agreement or any action relating to this Agreement shall be
construed as the CITY's waiver of sovereign immunity beyond the limits set forth in
Section 768.28, Florida Statutes.
(g). The CITY shall not be obligated or liable under the terms of this
Agreement to any party other than the CONSULTANT. There are no third party
beneficiaries to this Agreement.
(h). The CONSULTANT is an independent contractor and is not an agent,
representative, or employee of the CITY. The CITY shall have no liability except as
specifically provided in this Agreement.
(i). All insurance shall be primary to, and not contribute with, any insurance or
self-insurance maintained by the CITY.
15
\' ...
SECTION 21: STANDARDS OF CONDUCT.
(a). The CONSULTANT warrants that it has not employed or retained any
company or person, other than a bona fide employee working solely for the
CONSULTANT, to solicit or secure this Agreement and that the CONSULTANT has not
paid or agreed to pay any person, company, corporation, individual or firm other than a
bona fide employee working solely for the CONSULTANT, any fee, commission,
percentage, gift, or any other consideration, contingent upon or resulting from the award
of making this Agreement.
(b). The CONSULTANT shall not discriminate on the grounds of race, color,
religion, sex, or national origin in the performance of work under this Agreement or
violate any laws pertaining to civil rights, equal protection or discrimination.
(c). The CONSULTANT hereby certifies that no undisclosed (in writing)
conflict of interest exists with respect to the Agreement, including, but not limited to, any
conflicts that may be due to representation of other clients, customers or vendees, other
contractual relationships of the CONSULTANT, or any interest in property that the
CONSULTANT may have. The CONSULTANT further certifies that any conflict of
interest that arises during the term of this Agreement shall be immediately disclosed in
writing to the CITY. Violation of this Section shall be considered as justification for
immediate termination of this Agreement.
(d). The CONSULTANT shall ensure that all taxes due from the
CONSULTANT are paid in a timely and complete manner including, but not limited to,
occupational license tax.
(e). If the CITY determines that any employee or representative of the
CONSULTANT is not satisfactorily performing his or her assigned duties or is
demonstrating improper conduct pursuant to any assignment or work performed under
this Agreement, the CITY shall so notify the CONSULTANT, in writing. The
CONSULTANT shall immediately remove such employee or representative of the
CONSULTANT from such assignment.
(f). The CONSULTANT shall not publish any documents or release
information regarding this Agreement to the media without prior approval of the CITY.
(g). The CONSULTANT shall certify, upon request by the CITY, that the
CONSULTANT maintains a drug free workplace policy in accordance with Section
287.0878, Florida Statutes. Failure to submit this certification may result in termination.
(h). If the CONSULTANT or an affiliate is placed on the convicted vendor list
following a conviction for a public entity crime, such action may result in termination by
the CITY. The CONSULTANT shall provide a certification of compliance regarding the
16
public crime requirements set forth in State law upon request by the CITY.
(i). The CITY reserves the right to unilaterally terminate this Agreement if the
CONSULTANT refuses to allow public access to all documents, papers, letters, or other
materials subject to provisions of Chapter 119, Florida Statutes, and other applicable
law, and made or received by the CONSULTANT in conjunction, in any way, with this
Agreement.
(j). The CONSULTANT shall comply with the requirements of the Americans
with Disabilities Act (ADA), and any and all related Federal or State laws which prohibits
discrimination by public and private entities on the basis of disability.
(k). The CITY will not intentionally award publicly-funded contracts to any
CONSULTANT who knowingly employs unauthorized alien workers, constituting a
violation of the employment provisions contained in 8 U.S.C. Section 1324a(e) Section
274A(e) of the Immigration and Nationally Act (lNA)]. The CITY shall consider the
employment by the CONSULTANT of unauthorized aliens, a violation of Section 274A
(e) of the INA. Such violation by the CONSULTANT of the employment provisions
contained in Section 274A (e) of the INA shall be grounds for immediate termination of
this Agreement by the CITY.
(I). The CONSULTANT agrees to comply with Federal, State, and local
intellectual property, environmental, health, and safety laws and regulations applicable
to the goods and/or services provided to the CITY. The CONSULTANT agrees that any
program or initiative involving the work that could adversely affect any personnel
involved, citizens, residents, users, neighbors or the surrounding environment will
ensure compliance with any and all employment safety, environmental and health laws.
(m). The CONSULTANT shall ensure that all goods and/or services are
provided to the CITY after the CONSULTANT has obtained, at its sole and exclusive
expense, any and all permits, licenses, permissions, approvals or similar consents.
(n). If applicable, in accordance with Section 216.347, Florida Statutes, the
CONSULTANT shall not use funds provided by this Agreement for the purpose of
lobbying the Legislature, the judicial branch or State agency.
(0). The CONSULTANT shall advise the CITY in writing if it has been placed
on a discriminatory vendor list, may not submit a bid on a contract to provide goods or
services to a public entity, or may not transact business with any public entity.
(p). The CONSULTANT shall not knowingly engage in any action that would
create a conflict of interest in the performance of that actions of any CITY employee or
other person during the course of performance of, or otherwise related to, this
Agreement or which would violate or cause others to violate the provisions of Part III,
Chapter 112, Florida Statutes, relating to ethics in government.
17
t.
SECTION 22: ACCESS TO RECORDS/AUDIT /PUBLlC RECORDS.
(a). The CONSULTANT shall maintain books, records, documents, time and
costs accounts and other evidence directly related to its provision or performance of
services under this Agreement. All time records and cost data shall be maintained in
accordance with generally accepted accounting principles.
(b). The CONSULTANT shall maintain and allow access to the records
required under this Section for a minimum period of five (5) years after the completion of
the provision or performance goods and/or services under this Agreement and date of
final payment for said goods and/or services, or date of termination of this Agreement.
(c). The CITY may perform, or cause to have performed, an audit of the
records of the CONSULTANT before or after final payment to support final payment
under any Purchase/Work Order issued hereunder. This audit shall be performed at a
time mutually agreeable to the CONSULTANT and the CITY subsequent to the close of
the final fiscal period in which goods and/or services are provided or performed. Total
compensation to the CONSULTANT may be determined subsequent to an audit as
provided for in this Section, and the total compensation so determined shall be used to
calculate final payment to the CONSULTANT. Conduct of this audit shall not delay final
payment as required by this Section.
(d). In addition to the above, if Federal, State, County, or other entity funds are
used for any goods and/or services under this Agreement, the Comptroller General of
the United States or the Chief Financial Officer of the State of Florida, or the County of
Seminole, or any representatives, shall have access to any books, documents, papers,
and records of the CONSULTANT which are directly pertinent to goods and/or services
provided or performed under this Agreement for purposes of making audit, examination,
excerpts, and transcriptions.
(e). In the event of any audit or inspection conducted reveals any overpayment
by the CITY under the terms of the Agreement, the CONSULTANT shall refund such
overpayment to the CITY within thirty (30) days of notice by the CITY of the request for
the refund.
(f). The CONSULTANT agrees to fully comply with all State laws relating to
public records.
(g). The CONSULTANT agrees that if any litigation, claim, or audit is started
before the expiration of the record retention period established above, the records shall
be retained until all litigation, claims or audit findings involving the records have been
resolved and final action taken.
SECTION 23: CODES AND DESIGN STANDARDS.
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(a). All the goods and/or services to be provided for performed by the
CONSULTANT shall in the minimum be in conformance with commonly accepted
industry and professional codes and standards, standards of the CITY, and the laws of
any Federal, State or local regulatory agencies.
(b). The CONSULTANT shall be responsible for keeping apprised of any
changing laws, applicable to the goods and/or services to be performed under this
Agreement.
(c). The CONSULTANT shall ensure compliance with all applicable laws
relating to intellectual property.
SECTION 24: ASSIGNABILITY.
(a). The CONSULTANT shall not sublet, assign or transfer any interest in this
Agreement, or claims for the money due or to become due out of this Agreement
without the prior written consent of the City.
(b). The CONSULTANT agrees to reasonably participate in the contract
"piggybacking" programs pertinent to local governments.
SECTION 25: SUBCONTRACTORS.
(a). Any CONSULTANT proposed subcontractors shall be submitted to the
CITY for written approval prior to the CONSULTANT entering into a subcontract.
Subcontractor information shall include, but not be limited to, State registrations,
business address, occupational license tax proof of payment, and insurance
certifications.
(b). The CONSULTANT shall coordinate the provIsion of goods and/or
services and work product of any CITY approved subcontractors, and remain fully
responsible for such goods and/or services and work under the terms of this
Agreement.
(c). Any subcontract shall be in writing and shall incorporate this Agreement
and require the subcontractor to assume performance of the CONSULTANT's duties
commensurately with the CONSULTANT's duties to the CITY under this Agreement, it
being understood that nothing herein shall in any way relieve the CONSULTANT from
any of its duties under this Agreement. The CONSULTANT shall provide the CITY with
executed copies of all subcontracts.
(d). The CONSULTANT shall reasonably cooperate at all times with the CITY
and other CITY contractors and professionals.
19
SECTION 26: CONTROLLING LAWSNENUE/INTERPRETATION.
(a). This Agreement is to be governed by the laws of the State of Florida.
(b). Venue for any legal proceeding related to this Agreement shall be in the
Eighteenth Judicial Circuit Court in and for Seminole County, Florida.
(c). This Agreement is the result of bona fide arms length negotiations
between the CITY and the CONSULTANT and all parties have contributed substantially
and materially to the preparation of the Contract. Accordingly, this Agreement shall not
be construed or interpreted more strictly against anyone party than against any other
party.
SECTION 27: FORCE MAJEURE.
Neither party shall be considered in default in performance of its obligations
hereunder to the extent that performance of such obligations, or any of them, is delayed
or prevented by Force Majeure. Force Majeure shall include, but not be limited to,
hostility, terrorism, revolution, civil commotion, strike, epidemic, fire, flood, wind,
earthquake, explosion, any law, proclamation, regulation, or ordinance or other act of
government, or any act of God or any cause whether of the same or different nature,
existing or future; provided that the cause whether or not enumerated in this Section is
beyond the control and without the fault or negligence of the party seeking relief under
this Section.
SECTION 28: EXTENT OF AGREEMENT/INTEGRATION/AMENDMENT.
(a). This Agreement, together with the exhibits, if any, constitutes the entire
integrated Agreement between the CITY and the CONSULTANT and supersedes all
prior written or oral understandings in connection therewith. This Agreement, and all
the terms and provisions contained herein, including without limitation the Exhibits
hereto, constitute the full and complete agreement between the parties hereto to the
date hereof, and supersedes and controls over any and all prior agreements,
understandings, representations, correspondence and statements whether written or
oral.
(b). This Agreement may only be amended, supplemented or modified by a
formal written amendment.
(c). Any alterations, amendments, deletions, or waivers of the provisions of
this Agreement shall be valid only when expressed in writing and duly signed by the
parties.
SECTION 29: NOTICES.
20
..
(a). Whenever either party desires to give notice unto the other, it must be
given by written notice, sent by registered United States mail, with return receipt
requested, addressed to the party for whom it is intended, at the place last specified,
and the place for giving of notice shall remain such until it shall have been changed by
written notice in compliance with the provisions of this Section.
(b). For the present, the parties designate the following as the representative
places for giving of notice, to-wit:
(1). For the CITY:
Bill Smith, Purchasing Director
City of Sanford
City Hall
300 North Park Avenue
Sanford, Florida 32771
Telephone Number: 407-330-5600
(2). For the CONSULTANT:
Steven Hooper
Vice President
ISI Water Company, Inc.
711 Rankin Road
Houston, Texas 77073
(c). Written notice requirements of this Agreement shall be strictly construed
and such requirements are a condition precedent to pursuing any rights or remedies
hereunder. The CONSULTANT agrees not to claim any waiver by CITY of such notice
requirements based upon CITY having actual knowledge, implied, verbal or constructive
notice, lack of prejudice or any other grounds as a substitute for the failure of the
CONSULTANT to comply with the express written notice requirements herein.
Computer notification (e-mails and message boards) shall not constitute proper written
notice under the terms of the Agreement.
SECTION 30. WAIVER.
The failure of the CITY to insist in any instance upon the strict performance of
any provision of this Agreement, or to exercise any right or privilege granted to the CITY
hereunder shall not constitute or be construed as a waiver of any such provision or right
and the same shall continue in force.
SECTION 31. NO GENERAL CITY OBLIGATION.
(a). In no event shall any obligation of the CITY under this Agreement be or
21
constitute a general obligation or indebtedness of the CITY, a pledge of the ad valorem
taxing power of the CITY or a general obligation or indebtedness of the CITY within the
meaning of the Constitution of the State of Florida or any other applicable laws, but shall
be payable solely from legally available revenues and funds.
(b). The CONSULTANT shall not have the right to compel the exercise of the
ad valorem taxing power of the CITY.
SECTION 32. EXHIBITS.
Each exhibit referred to and attached to this Agreement is an essential part of
this Agreement. The exhibits and any amendments or revisions thereto, even if not
physically attached hereto, shall be treated as if they are part of this Agreement.
SECTION 33. CAPTIONS.
The Section headings and captions of this Agreement are for convenience and
reference only and in no way define, limit, describe the scope or intent of this
Agreement or any part thereof, or in any way affect this Agreement or construe any
provision of this Agreement.
SECTION 34. SEVERABILITY/CONSTRUCTION.
(a). If any term, provision or condition contained in this Agreement shall, to
any extent, be held invalid or unenforceable, the remainder of this Agreement, or the
application of such term, provision or condition to persons or circumstances other than
those in respect of which it is invalid or unenforceable, shall not be affected thereby,
and each term, provision and condition of this Agreement shall be valid and enforceable
to the fullest extent permitted by law when consistent with equity and the public interest.
(b). All provisions of this Agreement shall be read and applied in para materia
with all other provisions hereof.
SECTION 35. ALTERNATIVE DISPUTE RESOLUTION (ADR).
(a). In the event of a dispute related to any performance or payment obligation
arising under this Agreement, the parties agree to exercise best efforts to resolve
disputes through voluntary mediation. Section 5.03 - Arbitration - in the Lakeland
agreement is hereby superseded by this provision.
(b). Mediator selection and the procedures to be employed in voluntary
mediation shall be mutually acceptable to both parties. Costs of voluntary mediation
shall be shared equally among the parties participating in the mediation.
SECTION 36. COUNTERPARTS. This Agreement may be executed in any
22
number of counterparts, each of which shall be deemed an original, but all of which,
taken together, shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement .on the. respective dat~nder eaCh~nat~re: the CITY through its City
Council taking action on the ,4lP.!!1-day of '.1'1-11'....---- , 2006, and the
CONSULTANT signing by and - through its duly a thorized corporate officer having the
full and complete authority to execute same.
ATTEST:
151 Water Company, INC.
a.k.a. WATER COMPANY OF ,'ERICA
BwI~ pt.,/f~
Steven M. Hooper, General Manager
~A/~
Thomas L. Lothrop, P.E. Consulta t
Date: $A L- ;Z q , ,7.00 lJ,
ATTEST:
CITY OF SANFORD
B~~~
Linda hn, Mayor
--
.
Date: ? -D" -0"
For the use and reliance of the City of
Sanford only. Approved as to form
and legal sufficiency.
/~ William L. Colbert
William L. Colbert, Esquire, City Attorney
23
CONTRACT
FOR
SERVICES
THE STATE OF: FLORIDA
COUNTY OF: POLK
KNOWN ALL MEN BY THESE PRESENTS:
1\ ---H#IS CONTRACT FOR SERVICES ("Contract") is made on this I &~day of
~-'\......, , 2004, by and between the City of Lakeland ("City"), and Infrastructure
Services Inc. (referred to herein as Water Company of America "WCA"), a Delaware
corporation, with its principal office in Houston, Harris County, Texas. The initial addresses of
the parties are as follows:
WCA
Infrastructure Services, Inc.
711 Rankin Road
Houston, Texas 77073
City
City of Lakeland
501 East Lemon St.
Lakeland, FI. 33801
WITNESSETH:
WHEREAS, the City desires to secure the performance of services of the highest quality
by trained, skilled personnel; and
WHEREAS, WCA desires to provide such services in exchange for the fees hereinafter
specified;
NOW, THEREFORE, for and in consideration of the premises and mutual covenants
herein contained, it is agreed as follows:
1
ARTICLE I
Definitions
As used in this Contract, the following terms shall have meanings as set out below:
"Account" is defined as a particular Water and/or Wastewater Service of the City. This
definition includes all unauthorized taps discovered by WCA that previously had not been given
an Account number by the City.
"Base Revenue" is defined as the average monthly billing on an Account listed for up to
the twelve month period immediately preceding the completion of the Work.
"WCA Share" is defined as the fee to be paid by the City to WCA for performance of
duties under this Contract, computed in accordance with Section 5.5.02 hereof.
"City" is defined in the preamble of this Contract and includes its successors and
assigns.
"WCA" is defined in the preamble of this Contract and includes its successors and
assigns.
"Customer Information System" (or "CIS") is defined as the system used by the City
to bill and to account for water and sewer customer activities. This City system utilizes software
under the acronym of "UMS".
"Contract Administrator" is defined as that person designated by the Director by
notice to WCA, to administer this Contract on behalf of the City. This individual shall have a
working knowledge of City protocol and operating procedures of the City, and shall have the
authority and responsibility of administering all day-to-day aspects of this contract on behalf of
the City.
"Director" is defined as the City's designated Utility manager who has ultimate authority
and responsibility over this Contract.
"Documenting The Find" is defined as the notation by WCA on the Research report to
the City or the approval of a submitted Formal Work Order.
"Find" is defined as the discovery by WCA of an Account condition, as the result of the
Work, that causes a specific Water or Wastewater Service to be improperly or inaccurately
billed.
"Force Majeure" as used herein, shall include but not be limited to, acts of God, acts of
the public enemy, war, blockades, insurrection, riots, epidemics, landslides, lightning,
earthquakes, fires, storms, floods, washouts, tornadoes, hurricanes, arrests, and restraints of
government and people, explosions, breakage or damage to machinery or equipment and any
other abilities of either party, whether similar to those enumerated or otherwise, and not within
the reasonable control of the party claiming such inability.
2
"Increased Revenue" is defined as the amount of monthly income received by the City
on an Account, over and above the monthly Base Revenue, subsequent to corrective action
being taken on that Account, including both income derived from ongoing usage, as well as
retroactive billing determined to be appropriate by the City.
Work.
"Notice to Proceed" is defined as the written notification by the City to WCA to initiate
"Research Report" is defined as the reports delivered to the City by WCA pursuant to
Section 2.01 (C) (1) hereof.
"Water and/or Wastewater Service" is defined as the physical location of a City
consumer, both known and unknown to the City, which utilizes services provided by the City.
"Work" is defined as all of WCA's efforts towards determining needed changes and
recommending the corrective actions necessary in order for the specific Water and Wastewater
Service to be properly and accurately billed.
"Work Order" shall be defined to mean that certain standard document that defines
relevant information about a City Account that WCA has evaluated and determined to be
defective.
ARTICLE II
Scope of Service
2.01 - Basic Service
Upon receipt of the Notice to Proceed, WCA shall provide the investigation, Work Orders, and
field services necessary to maximize the billable revenue for the City's Water and Wastewater
Service.
A) Investigation and Field Work
B) Upon receiving the Account information described in Section 3.01 (A) hereof WCA shall:
1) Investigate each Account and determine if there is a loss of revenue to the City
associated with that Account.
2) Submit Work Orders with recommendation for changes in billing procedures and/or
changes in physical service. This information will be provided for each Account.
C) Reports
1) WCA shall provide to the City on a periodic basis a complete list of all Accounts
researched on which WCA has identified potential increased revenues to the City. This
Research Report shall be submitted for the purpose of "Documenting the Find" and
WCA shall be entitled to its portion of the Increased Revenues on said Accounts, if the
Work Order(s) included therein are subsequently approved by the Contract
Administrator.
2) WCA shall provide the Contract Administrator a monthly status report. This report is to
be inclusive of all Accounts that are deemed by WCA to justify action and on which a
3
Work Order has been generated in the prior month. This report shall be due on or
before the 10th calendar day each month.
D) WCA warrants that all work shall be performed in a good and workmanlike manner meeting
the standards of quality prevailing for services of like kind. WCA further warrants that
trained and skilled persons who have been previously approved by the City shall perform all
Work. .
2.02 - Services in General
WCA shall coordinate all of its activities herein described with the City, the Director. WCA
Administrator, or their designated representative(s).
2.03 - Finds Exempted
In certain rare cases, WCA may discover a Find on an account of which the City has prior
knowledge and is attempting to remedy. These remedies are typically the result of various City
reports and procedures that already exist which are designed to identify and correct certain
system and billing errors or "inconsistencies", These "inconsistencies" subsequently detected
separately by WCA are exempted and not to be considered as a "Find". These cases may fall
into two categories and require that WCA shall: 1) for a period of 120 calendar days from the
date of the inception of a new Account problem that originates during the term of this
agreement, refrain from submitting a Work Order related to that Find. and 2) for a period of 120
calendar days beginning at the Notice to Proceed date, refrain from submitting a Work Order
for any specific account problem known to the City and made known to WCA, that the City is in
the process of remedying.
It is agreed by the parties hereto that the purpose of this Section 2.03 is to define and agree to
the period of time for the City to remedy new problems that it discovers, and/or to remedy
known situations. This will minimize duplication of effort, thus keeping project resources
focused on providing maximum benefit to the City.
ARTICLE III
City Duties. Data Records. Work Products. Etc.
3.01 - Certain Duties of the City:
A) In addition to its other duties under this Contract, the City shall, to the extent permitted by
law fqr each Account, promptly provide access to all the data and records in the possession
of the City and provide copies of any documents in the possession or control of the City or
available to the City which are requested by WCA and are reasonably necessary for WCA
to perform its duties under this Contract. Upon request and subject to the terms and
conditions set forth in Exhibit "A," attached hereto and incorporated herein by reference, the
City shall make available to WCA the Customer Service Information System via a computer
link for the viewing and extracting of real time information or a FTP (File Transfer Protocol)
site. At no time shall WCA input a change or modification to an Account by way of any link.
B) Upon execution of this Contract by all parties, the City will coordinate a post-award meeting
with WCA and all designated management personnel representing the City under this
Contract in order to fully explain all the aspects of this Contract.
4
I .
C) The City shall review all Work Orders submitted by WCA under Section 2.01 (B) hereof and
within twenty-one (21) calendar days of the date of submittal, the City shall advise WCA of
the disposition of the Work Order request (approved or denied). The Contract Administrator
shall coordinate the analysis of submittals with the appropriate City representative(s) in
determining approval or denial of the requests.
D) The City shall in a timely manner implement the recommended corrective action identified in
the Work Order once approved. Changes to account data such as billing code changes
shall be accomplished within forty-five calendar days. Should this not occur within the time
frame specified, the City shall issue to WCA written notification of a fifteen day extension.
Work Orders that involve changes to physical service shall be expedited with all reasonable
haste but in conjunction with the City's work order backlog. Both parties recognize and
agree that the purpose and intent of the project cannot be realized until approved changes
have been implemented and accounts are fairly and accurately billed.
E) The Contract Administrator shall assist WCA in its dealings with any City department.
F) The City shall acknowledge receipt of WCA's Research Report pursuant to Section 2.01 (C)
(1), by promptly entering the appropriate information related to the Account within the "CIS"
System. Receipt of this Research Report by the City shall preclude any action on the
Account by the City prior to or during the Work Order approval process.
G) On each Account for which WCA has Documented the Find and the City has subseauentlv
collected a billina, the City shall issue to WCA, at least monthly, a verification of the
following information:
1) Account Name
2) Account Number
3) Service Address
4) Amount Billed
5) Monthly Base Revenue in dollars
6) Amount Collected
7) Amount of moneys owed to W CA
8) WCA Work Order Number
H) Matters not specifically covered by this Contract will have procedures established by mutual
agreement of WCA and the Contract Administrator.
I) At all times, the spirit of this Contract will be upheld by both the City and WCA. WCA is
performing a service to the City by increasing revenue to the City. The City has given WCA
authorization to perform the defined duties of this Contract and will not hinder, restrict, delay
or compete with WCA's performance of these duties.
J) The City shall establish financial procedures by which the Finds are identified and deposited
in such a manner that the moneys owed to WCA can be easily retrieved; see Section 5.01.
5
ARTICLE IV
Indemnification and Insurance
4.01 - Indemnification
To the fullest extent permitted by laws and regulations, and in consideration of the amount
stated on any Purchase Order, the Contractor shall defend, indemnify, and hold harmless the
City, its officers, directors, agents, guests, invitees, and employees from and against all
liabilities, damages, losses, and costs, direct, indirect, or consequential (including but not
limited to reasonable fees and charges of engineers, architects, attorneys, and other
professionals and court and arbitration costs) arising out of or resulting from any acts of
negligence, recklessness or intentional wrongful misconduct in the performance of the work by
the Contractor, any Subcontractor, or any person or organization directly or indirectly employed
by any of them to perform or furnish any of the work or anyone for whose acts any of them may
be liable.
In any and all claims against the City, or any of its officers, directors, agents, or employees by
any employee of the Contractor, any Subcontractor, any person or organization directly or
indirectly employed by any of them to perform or furnish any of the work or anyone for whose
acts any of them may be liable, this indemnification obligation shall not be limited in any way by
any limitation on the amount or type of damages, compensation, or benefits payable by or for
the Contractor or any such Subcontractor or other person or organization under workers' or
workmen's compensation acts, disability benefit acts, or other employee benefit acts, nor shall
this indemnification obligation be limited in any way by any limitation on the amount or type of
insurance coverage provided by the City, the Contractor, or any of his Subcontractors. To the
extent this Indemnification conflicts with any provision of Florida Law or Statute, this
indemnification shall be deemed to be amended in such a manner as to be consistent with
such Law or Statute.
Applicabilitv: It is the express intent of the Contractor that this agreement shall apply for the
project(s) or time period indicated below. (Check and complete one):
/ Agreement is limited to Purchase Order #
dated ~.
,~
(OR)
Agreement is applicable to all contracts, purchase orders and other work
performed for the City of lakeland for the time period of
until
Subroaation: The Contractor and his Subcontractors agree by entering into this contract to
a Waiver of Subrogation for each required policy herein. When required by the insurer, or
should a policy condition not permit Contractor or Subcontractor to enter into a pre-loss
agreement to waive subrogation without an endorsement, then Contractor or Subcontractor
agrees to notify the insurer and request the policy be endorsed with a Waiver of Transfer of
Rights of Recovery Against Others, or its equivalent. This Waiver of Subrogation requirement
shall not apply to any policy, which includes a condition specifically prohibiting such an
endorsement, or voids coverage should Contractor or Subcontractor enter into such an
agreement on a pre-loss basis.
6
to .
Release of Liability: Acceptance by the Contractor of the last payment shall be a release to
the City and every officer and agent thereof, from all claims and liability hereunder for anything
done or furnished for, or relating to the work, or for any act or neglect of the City or of any
person relating to or affecting the work.
SavinQs Clause: The parties agree that to the extent the written terms of this
Indemnification conflict with any provisions of Florida laws or statutes, in particular Sections
725.06 and 725.08 of the Florida Statutes, the written terms of this indemnification shall be
deemed by any court of competent jurisdiction to be modified in such a manner as to be in full
and complete compliance with all such laws or statutes and to contain such limiting conditions,
or limitations of liability, or to not contain any unenforceable, or prohibited term or terms, such
that this Indemnification shall be enforceable in accordance with and to the greatest extent
permitted by Florida Law.
~
te Secretary or Witness
BY:
ATTEST:
STATE OF:
~(0V\r,^-P---
--PO' '\L-
COUNTY OF:
Th~Joreg~ instrument was acknowledged before me this ,3\ day of ~ IA..~ ,
200/4-- ~
by 1=N~~r~ ,of Ivtt~:::~p~~:S 11~G
He/She is personally known to me or has producedT'" eM.-S 016'3 otp I r
State Drivers License Number
as
identification, and did
I did not )0 take an oath.
A- Tl\l$~'d 1
aking ACknowledgment
Serial Number, if any
,,111',,/ Kimberly A. PJlssell
,,~~~'if.~,_ CQmm:'~;on #DD163 1 04
...~: .0" ~ ,,& }.iJ~L _
~*:'~':,;~ Expires: Nov 04,2006
0;\. ~,,~ Bonded ThtIt
-'()1i;,' Qi:~v,~' A ..........,. "-din'" Co" ~,
'ftJ1\\ .fl..U(.U.I'UVDUll! ""
Notary Seal
7
f,r . ..
ISI WATER COMPANY
and
LAKELAND, FLORIDA
AGREEMENT
related to
CHANGE OF NAME
This agreement is made and entered into this f~~day of May, 2006 by and between the
ISI Water Company, a corporation duly organized and existing under the laws of Texas
(referred to herein as "WCA"). and the City of Lakeland, a political subdivision of the
State of Florida ("City").
WITNESSETH:
WHEREAS, the City has entered into a contract (the "Contract") with
Infrastructure Services, Inc. (referred to as Water Company of America "WCA"), to
identify unbilled and/or misbilled water, sewer and stormwater service; and
WHEREAS, Infrastructure Services, Inc. has created a wholly owned subsidiary
of its utility consulting Division, with no transfer of interest, dated February 24, 2005,
known as ISI Water Company; and
WHEREAS, this amendment accomplishes recogmtIon of the creation of a
subsidiary corporation only and all rights and obligations of the City and WCA under the
Contract are unaffected by this change; and
WHEREAS, the documentary evidence of this change has been filed with the
City.
NOW, THEREFORE, in consideration of the promises contained herein and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the City and WCA agree as follows:
1. The Contract is hereby amended by substituting the name "ISI Water
Company" for the name "Infrastructure Services, Inc." wherever it appears in the
Contract: and
2. Except as herein modified or amended, the provision, conditions and terms of
the Contract shall remain unchanged and in full force and effect.
of-
"" '"
3. In the case of any inconsistency between a provision of the Contract and this
agreement, the provision of this agreement shall govern and control.
4. Nothing contained herein shall relieve Infrastructure Services, Inc. of any
duty. liability or obligation to the City under the Contract in the event of a breach or other
non-performance of any term or condition of the Contract by ISI Water Company.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto have
executed this agreement effective on the date first above written.
LAKELAND, FLORIDA
By: C~~ L-.. ~~
Title: ~ ~~-.. .:-t w.-~ ~
Date: ,S- - ,. S -L' (,
ISIWATERCO~PAN~Y _
By vi ~ -----'---~
Sleven Hooper
Title: General Manager
Date: jJ1 ar
9
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