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HomeMy WebLinkAboutC-3032 AFAR ORIGINAL _ 17 AMENDMENT NO. 3 TO THE PROFESSIONAL SERVICES AGREEMENT FOR A.graTv3 THE LARGE WATER METER MAINTENANCE PROGRAM vwxtgewBY AND BETWEEN THE CITY OF ARCADIA c°0Tyot�`°� AND WESTERLY METER SERVCE COMPANY \C This Amendment No. 3 ("Amendment No. 3") is hereby entered into this — day of tAkgr" ^, , 2019 by and between the City of Arcadia, a municipal corporation of the State of California, and Westerly Meter Service Company, a Sole Proprietorship, with respect to that certain Professional Services Agreement ("Agreement") between the Parties dated April 4, 2016, further amended by Amendment No. 1 dated March 24, 2017, and further amended by Amendment No. 2 dated March 29, 2018. The Parties agree as follows: 1. Section 3.1.2 of the Professional Services Agreement, the Term is hereby extended from April 4, 2019 to April 4, 2020 ("Extended Term"). 2. All terms and provisions of the Agreement not amended by this Amendment No. 3 are hereby reaffirmed. In witness whereof the Parties have executed this Amendment No. 3 on the date set forth below. CITY OF ARCADIA WE ERLY METER SERVICE COMPANY By: �� Dominic Lazzaretto City Manager Title: Out _ Dated: 1- 4 23 `Lo i c\ Date • rr-L By: :ATTEST: Title: /In + 4 (sa-' t, Dated: "4,t-t• C ty I 'k APPROVED AS TO FORM CONCUR: 'S-TfE r7 / Stephe P. Deitsch Tait City Attorney Public Works Services Director Cj Cierk's ' ' ORIGINAL kte -i41116"1 AMENDMENT NO. 2 TO THE PROFESSIONAL SERVICES AGREEMENT FOR - jZ ,. .....7..-41.1, _ THE LARGE WATER METER MAINTENANCE PROGRAM _ BY AND BETWEEN THE CITY OF ARCADIA ��0 �- AND WESTERLY METER SERVCE COMPANY 0, This Amendment No. 2 ("Amendment No. 2") is hereby entered into this MA day of 1 , 2018 by and between the City of Arcadia, a municipal corporation of the State oCf alifornia, and Westerly Meter Service Company, a Sole Proprietorship, with respect to that certain Professional Services Agreement ("Agreement") between the parties dated April 4, 2016 and further amended by Amendment No. 1 dated March 24, 2017. The Parties agree as follows: 1. Section 3.1.2 of the Professional Services Agreement, the Term is hereby extended from April 4, 2018 to April 4, 2019 ("Extended Term"). 2. All terms and provisions of the Agreement not amended by this Amendment No. 2 are hereby reaffirmed. In witness whereof the Parties have executed this Amendment No. 2 on the date set forth below. CITY OF ARCADIA WE.T :LYMETER SERVICE COMPANY f-- ) ' illteb_,Iik'''''' fki,--------- By: ____( = ,, Dominic Lazzarett City Manager Title: . C g"" -t`5ks ;.) (1),;uv7 Dated: `^netEz - Zet 1 20i¢3 Date :"-'3- t- -i s a Br-,„ ATI-Kr: . Title: L : Mst '-$ [QA,— " '#�� A , �; lifi,47 Dated: `� :ice --4iy erk k APPROVED AS TO FORM , CONCUR: c). r Stephen P. Deitsch m Tait City Attorney Public Works Services Director C*c-t&ts ORIGINAL CITY OF ARCADIA PROFESSIONAL SERVICES AGREEMENT REGARDING C 303 4, LARGE WATER METER MAINTENANCE PROGRAM \VO 1. PARTIES AND DATE. This Agreement is made and entered into this 2"` day o `(1 , 2016 by and between the City of Arcadia, a charer city organ zed under- the Constitution and laws of the State of California with its principal place of business at,240 West Huntington Drive, Arcadia, California 91066-6021 ("City") and Westerly Meter Service Company, a Sole Proprietorship, with its principal place of business at 403 East Carlin Street, Compton, CA 90222 ("Consultant"). City and Consultant are sometimes individually referred to as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing testing, calibration, and maintenance/repair of large water meters services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. _ City desires to engage Consultant to render such services for the large water meter maintenance program project ("Project") as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant rees to romises and a 1 p 9 furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional large water meter testing consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and ,all applicable local, state and federal laws, rules and regulations. Revised 04/13 1 _ I 3.1.2 Term. The term of this Agreement shall be for one year from the date of execution, with three optional one year extensions per City Council approval, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 3.2 Responsibilities of Consultant. 3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and, not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the prior written approval of City. 3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon prior written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at Revised 04/13 2 the request of the City. The key personnel for performance of this Agreement are as follows: Lane Matsuno, Owner. 3.2.5 City's Representative. The City hereby designates Tom Tait, Public Works Services Director, or his or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than the City's Representative or his or her designee. 3.2.6 Consultant's Representative. Consultant hereby designates Lane Matsuno, Owner, or his or her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub- consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all Revised 04/13 3 violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Consultant shall be solely•responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, and employees free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure:or alleged failure to comply with such laws, rules or regulations. 3.2.9.1 Immigration Reform and Control Act. Consultant acknowledges that Consultant, and all subcontractors hired by Consultant to perform services under this Agreement, are aware of and understand the Immigration Reform and Control Act ("IRCA"). Consultant is and shall remain in compliance with the IRCA and shall ensure that any subcontractors hired by Consultant to perform services under this Agreement are in compliance with the IRCA. In addition, Consultant agrees to indemnify, defend and hold harmless the City, its directors, officials, officers and employees, from any liability, damages or causes of action arising out of or relating to any claims that Consultant's employees, or the employees of any subcontractor hired by Consultant, are not authorized to work in the United States for Consultant or its subcontractor and/or any other claims based upon alleged IRCA violations committed by Consultant or Consultant's subcontractor(s). 3.2.10 Insurance. 3.2.10.1 Time for Compliance. Consultant shall not commence Work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section; provided, however, that in lieu thereof, the • Consultant may provide evidence to the City that all subcontractors are additional insureds under the Consultant's policies of insurance. 3.2.10.2 Minimum Requirements. Consultant shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees, subcontractors and volunteers. Consultant shall also name and obtain insurer's consent to naming City, its directors, officials, officers, and employees as an additional insured with proof of certificate of insurance that they are an additional insured. Such insurance shall meet at least the following minimum levels of coverage: (A) Minimum Scope of Insurance. Coverage shall be when commercially available (occurrence based) at least as broad as the latest version of the following: (1) General Liability. Insurance Services Office Commercial General Liability coverage for premises and operations, contractual liability, personal injury, Revised 04/13 4 bodily injury, independent contractors, broadform property damage, explosion, collapse, and underground, products and completed operations; (2) Automobile Liability Insurance Services Office Business Auto coverage for any auto owned, leased, hired, and borrowed by Consultant or for which Consultant is responsible; and (3) Workers' Compensation and Employer's Liability: Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. The City, its directors, officials, officers, and employees shall be listed as additional insured. Any deductibles or self-insured retentions must be declared to and approved by City and conform to the requirements provided in Section 3.2.10.6 herein. (B) Minimum Limits of Insurance. Consultant shall maintain limits no less than: (1) General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage, with an aggregate limit of$1,000,000. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employer's Liability limits of $1,000,000 per accident for bodily injury or disease. 3.2.10.3 Professional Liability. INTENTIONALLY OMITTED 3.2.10.4 Insurance Endorsements. The insurance policies - shall contain the following provisions, or Consultant shall provide endorsements, on forms supplied or approved by the City to add the following provisions to the insurance policies: (A) General Liability. The general liability policy shall, be endorsed to state that: (1) the City, its directors, officials, officers, and employees,shall be covered as additional insured with respect to liability arising out of Services operations and for completed operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and, (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, and employees, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. (B) Automobile Liability. The automobile liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, and employees shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or • Revised 04/13 5 borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, and employees, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, and employees shall be excess of the Consultant's insurance and shall not be called upon to contribute with it in any way. , (C) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, and employees for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages. Each insurance policy required by'this Agreement shall be endorsed to state that: (A) coverage shall not be, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested of cancellation, of intended non-renewal or endorsement reduction in limit or scope of coverage; provided, however, that in the event of cancellation due solely to non-payment of premium, ten (10) days notice of cancellation for non-payment of premium may instead be given to the City.; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, and employees. 3.2.10.5 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, and employees. 3.2.10.6 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, and employees; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 3.2.10.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VII, admitted or approved to do business in California, and satisfactory to the City. 3.2.10.8 Verification of Coverage. Consultant shall furnish City with complete and accurate copies of current certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory' to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. Copies of all certificates and endorsements must be received and approved by the City before work commences. The City reserves Revised 04/13 6 the right to require complete, certified copies of all required insurance policies, at any time. 3.2.10.9 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.2.10.10 Material Breach. Lack of insurance does not negate Consultant's obligations under this Agreement. Maintenance of proper insurance coverage is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of the Agreement. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including reimbursements which receive the City's prior written authorization, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total annual compensation shall not exceed TWENTY-EIGHT THOUSAND DOLLARS AND NO CENTS ($28,000.00) without written approval of the City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. City shall, within forty-five (45) days of receiving such statement, review the statement and pay all approved charges thereon. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless prior written authorization is obtained from the City. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means Revised 04/13 any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement.- Consultant shall not perform, nor be compensated for, Extra Work without prior written authorization from City's Representative. 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. A termination without cause by City shall.not act as or be deemed a waiver of any potential known or unknown City claims associated with Consultant's performance prior to the date of termination. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Revised 04/13 8 Consultant: Lane Matsuno, Owner Westerly Meter Service Co. 403 East Carlin Street Compton, CA 90222 City: City of Arcadia 240 West Huntington drive Arcadia, CA 91007 Attn: Craig Clark, Utilities Superintendent Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality. 3.5.3.1 Documents & Data: Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 3.5.3.2 Confidentiality. Except as otherwise required by California law, all ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or Revised 04/13 9 the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Indemnification. 3.5.5.1 To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its officials, officers, and employees free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorney's fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. Consultant shall defend with Legal Counsel of City's choosing, at Consultant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, and employees. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, and employees, in any such suit, action or other legal proceeding arising from Consultant's performance of the Services, the Project or this Agreement; except to the extent that liability is caused by the active negligence or willful misconduct by the City or its directors, officials, officers, and employees. Consultant shall reimburse City and its directors, officials, officers, and employees, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, and employees, and shall take effect immediately upon execution of this Agreement. 3.5.5.2 The duty to defend and to hold harmless, as set forth above, shall include the duty to defend as established by Section 2778 of the California Civil Code, and the duty to defend shall arise upon the making of any claim or demand against the City, its respective officials, officers, agents, employees and representatives, Revised 04/13 10 notwithstanding that no adjudication of the underlying facts has occurred, and whether or not Consultant has been named in the claim or lawsuit. 3.5.6 Entire Agreement. This Agreement contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties. 3.5.7 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys' fees and all other costs of such action. 3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. 3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, and employees except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. Revised 04/13 11 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party beheficiaries of any right or obligation assumed by the Parties. 3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18'Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies . that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement., Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. Revised 04/13 12 3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.5.23 Exhibits and Recitals. All Exhibits and Recitals contained herein are hereby incorporated into this Agreement by this reference. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. In witness whereof the Parties have executed this Professional Services Agreement on the date set forth below. CITY OF ARCADIA W RLY METER SERVICE CO. By ----""---- i--'5 ---Ns/'''*' '. . ,A Dominic Lazzaretto nature City Manager Date: Dc 1 t_ 11., 2JDlb 44.-4z 1`' izacu-a) 0...v.4...- Print Name and Title A . EST: .. Date: 3- 11- -( e i , - 0 11 _A 11 By - ^,_C f lerk , Signature APPROVED AS TO FORM: (� Print Name and Title P.. Date: Steph n P. Deitsch City Attorney CO CUR: om Tait Public Works Services Director Revised 04/13 13 EXHIBIT"A" SCOPE OF SERVICES Scope of services for the Large Meter Maintenance Program shall include, but not limited, to the following: The service provider will furnish all labor, material, transportation, tools, and equipment necessary to test, repair, and retest after repair of large meters. The service provider is required to provide skilled and trained personnel and equipment necessary to complete large meter testing. The large water meter testing program is based on a three year cycle. There are 123. large meters in the water meter program. Approximately 45 large meters are tested each year. The total number of meters tested each year can be higher or lower depending on the usage patterns, repairs needed, or new installations of large meters. The City plans on awarding a one year contract with three optional extensions, subject to City Council approval { SCOPE OF PLANNED SERVICES A. The successful firm shall be responsible for all necessary activities associated with meter testing, repair, and calibration. The firm shall provide two (2) copies of each meter test report to the Utilities Superintendent or his designee. The report is to be in a legible format containing all of the following information. • Setting information (i.e. apartment, restaurant, schools, park, etc.). • Site address. • Site number. • Meter information (serial number, size, manufacturer, type, etc.). • Reading on meter before and after testing. • Hydrostatic pressure and residual pressure. • Testing equipment information (type, manufacturer, date last calibrated). - • Testing hose length. • Test results. • Vault conditions. • Any additional remarks pertaining to the condition of meters or comments on repairs performed and any other recommendations regarding specific meter tested/repaired. B. The firm shall submit to the City of Arcadia on a weekly basis, an updated listing of the meters tested, the dates that they were tested, and the meters remaining to be tested. C. Firm must maintain copies of all conducted tests for a period of three years. D. Testing and calibration shall include testing of the meter for accuracy, any work to modify the performance of the meter by adjusting the calibration vane or change gears externally, and retest. A-1 E. Firm must provide all necessary new manufactured parts for meters and equipment needed for testing (no refurbished parts). F. The firm shall test all meters in accordance with the latest AWWA standards. Included for every meter, the following minimum shall be performed: • 3 test points for each measuring element. • 3 test.points for Turbine and Octave meters. • 6 test points for Compound meters. • 3 test points for Fire Service Assembly. G. The firm shall notify the Utilities Superintendent or his designee of scheduled appointments two weeks in advance so that end user customers can be notified at least one week in advance of testing. Specific information pertaining to each site should be addressed. This shall include whether there will be an interruption of service and the time frame for interruption. The firm shall notify the Utilities Superintendent or his designee of the entire work schedule. This should include work during, before, or after regular working hours. H. The firm shall utilize all safety precautions and be well versed in all safety related aspects of testing, including confined space entry, water contamination, precautions, and traffic control. I. Firm will be responsible for any damages to the meter. If damages occur on the consumer(s) line or on site-facilities, firm will report it to the Utilities Superintendent or his designee immediately. J. In compliance with the City's NPDES Permit, the firm shall be responsible for de- chlorinating the water prior to discharging water into the street by using de chlorination tablets. K. Testing Equipment: The firm shall perform "comparison testing" by placing a factory calibrated meter in series with the subject meter, and for every test point, allow the same water to flow through both meters. Proof of certification of the factory calibrated meter shall be provided to the City prior to commencement of testing the subject meters. The certification needs to be submitted to the City of Arcadia on an annual basis throughout the duration of the program. L. Firms must have hardware and software program when testing digital/AMR registers and Octaves from Master Meter so testing at low flow ranges can be- achieved. All settings must be returned back as originally found unless approved by the utilities superintendent. M. Replacement parts should not be included in the Per Meter Price, but shall be billed as a separate line item at the material cost (documented or as indicated on price list). A-1 • N. After repairs are made, firm will warranty the meter for one (1) year from date of repair. This warranty will include the quality of the meter and all parts. 0. Any meter that has been repaired shall be re-tested and both test results will be provided to the Utilities Superintendent or his designee. • • A-1 Exhibit "B" SCHEDULE OF SERVICES All work shall be completed in accordance with the following schedule: - Work to be done for one year from the date of execution. B-1 Exhibit "C" COMPENSATION Compensation shall be based on time and materials spent in accordance with the following tasks, not to exceed the total compensation listed below. The schedule of prices is attached as attachment "A" to this Exhibit "C". Maximum Large Water Meter Maintenance Program - $28,000.00 Maximum Total Annual Compensation $28,000.00 The total compensation shall not exceed the total listed without written authorization in accordance with Section 3.3.4 of this agreement. c-1 Schedule of Prices (Attachment A) The following is an estimate quantity of large meters. Please complete highlighted sections: Turbine Meters Repair Size Test Only Total Size & Retest Total 3" $\-1( /ea x 4=$---)01) 3" $ k /ea x 1= $ i o3 4" $0( /ea x 3=$ .\--)-( 4" $ /ea x 1= $ ‘,.%0 6" $11' /ea x 4=$ 7/0J 6" $ 1' /eax1= $ IOU 8" $11 /ea x 2=$"1:1) 8" $ :-`) /eax1= $ .ov Subtotal$111((A) Subtotal$ '' (B) Compound Meters Repair Size Test Only Total Size &Retest Total 3" $11( /ea x15=$161 3" $k )3 /ea x1= $ 1-;‘) 4" $ 1.1■ /ea x10=$ \ ) 1J 4" $ 1;,,3 /eax1= $ 6" $ 1--i /ea x 3 =$ 5 - 6" $ '") /eax1= $ b: O 8" $ 11` /ea x 2=$ '3'�y 8" $ 1'`) /eax1= $ i J Subtotal$a ti`ti (C) Subtotal $ av' (D) Octave Meters Repair Size Test Only Total Size &Retest Total 3" $'1i /ea x 3=$ � L� 3" $ "D'-') /ea x 1= $ i..^ 4" $ ,_►;./ea x 3=$ V,.t 4" $ /eax1= $ 6" $ 11a/ea x 3=$ '-ti-(. 6" $ i ) ' /eax1= $ ) Subtotal$1S1%-- (E) Subtotal$ 3)t) (F) (Continued) / Schedule of Prices Continued Fire Service Assemblies(1 Main line meter+1 Bypass meter) - Repair Size Test Only Total Size &Retest Total 4"x2" 01:/ea x 1=$ 1-1; 3" $ I\--',7 /ea x 1= $ 1,-.%,) 6"x2" $ 1-1(/ea x 2=$ ), a 4" $ O.;J /eax1= $ i .:...; �u (H) Subtotal$ 3�97 (G) Subtotal$ .z Test Outlets Install Test Outlets $ 3 \ /each x 5= $ '' (I) - Parts The City of Arcadia's allowance for parts and materials $ 8,000 - Markup on Allowance for parts = $ i>,w,: Total City Allowance for parts materials($8,000)+Markup =$ ) °° (J) Total Cost (A+B+C+D+E+F+G+H+I+J) = $ Z `I .S-1 - (Total Cost in Numbers) (Total Cost in Written Form) Note:A spare parts and cost list shall accompany this schedule of prices.