Contract - Xylem Inc. - 2013-04-09 AGREEMENT FOR
ANNUAL PUMP STATION PREVENTIVE MAINTENANCE
(Xylem, Inc.)
This Agreement ("AGREEMENT") is made and effective as of A c ,\R ,
, between the Costa Mesa Sanitary District, a sanitary district ("DISTRICT"), and
Xylem, Inc, a Delaware Corporation ("CONTRACTOR"). In consideration of the mutual
covenants and conditions set forth herein, the parties agree as follows:
1. TERM
The term of this AGREEMENT shall be for three (3) years beginning on
`MIC , 2013 and ending on 4QC T< , 2016 ("Original
Term"), unless extended pursuant to this Section. DISTRICT and CONTRACTOR by
mutual written agreement may extend the Term for two (2) additional one year terms
("Additional Term"). To exercise an extension, the DISTRICT shall submit an extension
request to CONTRACTOR at least sixty days prior to the end of the Original Term or
Additional Term. CONTRACTOR shall notify DISTRICT as to the ability to extend the
AGREEMENT. Each Additional Term may be exercised upon the condition that at the
time of the exercise, both parties are then in compliance with the material terms and
conditions of this AGREEMENT on its part to be performed.
2. SERVICES
CONTRACTOR shall perform annual preventive maintenance to the twenty
sewer pump stations for the DISTRICT's annual maintenance program ("PROJECT").
The SERVICES to be provided are more particularly described in the Scope of
Services attached hereto as Exhibit "A" and incorporated herein by reference.
3. PERFORMANCE
CONTRACTOR shall perform all SERVICES under this AGREEMENT in a skillful
and competent manner, consistent with the standards generally recognized as being
employed by CONTRACTORs in the same discipline in the State of California and
consistent with all applicable laws. CONTRACTOR shall provide DISTRICT its work
product in "turnkey" form. DISTRICT reserves the right to perform reasonable testing of
CONTRACTOR's work product before accepting the same. CONTRACTOR shall
warrant that all services provided and equipment installed shall perform in a
workmanlike manner and be fit for its particular purpose.
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4. COMPENSATION
Compensation for the SERVICES shall be based on the actual amount of time
spent in adequately performing the SERVICES and shall be billed at the hourly rate(s)
of $125.00 However, unless expressly agreed in a written change order in advance by
DISTRICT, the cost to DISTRICT for the SERVICES shall not exceed thirty five
thousand dollars per year ($35,000) The written change order requirement cannot be
waived. Failure to submit a written change order and receive written approval by the
DISTRICT prior to performing extra work shall constitute a waiver of a claim for
additional time or compensation.
Invoices shall be submitted to DISTRICT monthly as performance of the
SERVICES progresses. DISTRICT shall review and pay the approved charges on such
invoices in a timely manner. SERVICES on the PROJECT shall begin immediately and
be completed by 45 days from the date the "Notice to Proceed" was issued unless
extended by DISTRICT in writing.
CONTRACTOR may request a compensation increase that is equal to the
February-to-February Consumer Price Index for all Urban Consumers for Los Angeles,
Riverside and Orange Counties (CPI-U) beginning in 2014.
CONTRACTOR understand that this job, if over One Thousand Dollars
($1,000.00) in value and not exempt, requires compliance with the prevailing wage law.
(Labor Code §§ 1720 et seq.) As such, DISTRICT will ascertain the prevailing wages to
be paid on this job from the Director of Industrial Relations. Said amounts are listed at
http://www.dir.ca.gov/dIsr/pwd/index/htm. CONTRACTOR agrees to pay prevailing
wages and maintain prevailing wage records regarding those payment. CONTRACTOR
is also required to comply with the apprentice requirements. CONTRACTOR shall
defend, indemnify, and hold the DISTRICT, its elected officials, officers, employees, and
agents free and harmless from any claim or liability arising out of any failure or alleged
failure to comply with the Prevailing Wage Laws. CONTRACTOR recognizes that state
law makes eight (8) hours a day's work, and any worker working in excess of that time
must be paid over time. ((Labor Code §§ 1813).
5. INSURANCE
CONTRACTOR shall, at its expense, procure and maintain for the duration of
this AGREEMENT insurance against claims for injuries to persons or damages to
property which may arise from or in connection with the performance of this
AGREEMENT by the CONTRACTOR, its agents, representatives, employees, or
subcontractors. CONTRACTOR shall also require all of its subcontractors to procure
and maintain the same insurance for the duration of this AGREEMENT. If
CONTRACTOR is an employer or otherwise hires one (1) or more employees during
the term of this PROJECT, CONTRACTOR shall procure and maintain workers'
compensation coverage for such employees which meets all requirements of state law
(Labor Code § 1861).
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At a minimum, CONTRACTOR is required to submit proof of insurance in
accordance with the following standards:
Minimum Scope of Insurance: Coverage shall be at least as broad as the
latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001): (2) Automobile
Liability: Insurance Services Office Business Auto Coverage form number CA 0001,
code 1 (any auto); and (3) Workers' Compensation and Employer's Liability: Workers'
Compensation insurance as required by the State of California and Employer's Liability
Insurance.
Minimum Limits of Insurance: CONTRACTOR shall maintain limits of no less
than:
(A)General Liability. One Million Dollars ($1,000,000.00) per occurrence for
bodily injury, personal injury and property damage. 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.
(B)Automobile Liability. One Million Dollars ($1,000,000.00) per accident for
bodily injury and property damage.
(C)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 One Million Dollars ($1,000,000.00) per accident for bodily
injury or disease.
Insurance Endorsements: The insurance policies shall contain the following
provisions, and a separate endorsement stating to add the following provisions to the
insurance policies shall be submitted and approved by DISTRICT:
(A)General Liability. The general liability policy shall be endorsed to state that:
(1) DISTRICT, its directors, officials, officers, employees, agents, and volunteers shall
be covered as additional insureds with respect to the work or operations performed by
or on behalf of the CONTRACTOR, including materials, parts, or equipment furnished in
connection with such work; and (2) the insurance coverage shall be primary insurance
as respects DISTRICT, its directors, officials, officers, employees, agents, and
volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the
CONTRACTOR's scheduled underlying coverage. Any insurance or self-insurance
maintained by DISTRICT, its directors, officials, officers, employees, agents, and
volunteers shall be excess of the CONTRACTOR's insurance and shall not be called
upon to contribute with it in any way.
(B)Workers' Compensation and Employer's Liability Coverage. The insurer
shall agree to waive all rights of subrogation against DISTRICT, its directors, officials,
officers, employees, agents, and volunteers for losses paid under the terms of the
insurance policy which arise from work performed by the CONTRACTOR.
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(C)AII Coverage. Each insurance policy required by this AGREEMENT shall be
endorsed to state that: (A) coverage shall not be suspended, voided, reduced, or
canceled except after thirty (30) days prior written notice by certified mail, return receipt
requested, has been given to DISTRICT, and (B) any failure to comply with reporting or
other provisions of the policies, including breaches or warranties, shall not affect
coverage provided to DISTRICT, its directors, official, officers, employees, agents, and
volunteers.
Acceptability of Insurers: Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A-:VIII, licensed to do business in California, and
satisfactory to DISTRICT.
All insurance documents must be submitted and approved by the District's Risk
Manager prior to execution of any AGREEMENT with DISTRICT.
6. INDEMNIFICATION
(a) Indemnification for Professional Liability. When the law establishes a
professional standard of care for CONTRACTOR's services, to the fullest extent
permitted by law, CONTRACTOR shall indemnify, protect, defend, and hold harmless
DISTRICT and any and all of its officials, employees, and agents from and against any
and all losses, liabilities, damages, costs, and expenses, including attorney's fees and
costs to the extent the same arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of CONTRACTOR, its officers, agents, employees,
or subcontractors (or any entity or individual that CONTRACTOR shall bear the legal
liability thereof) in the performance of professional services under this AGREEMENT.
(b) Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the fullest extent permitted by law,
CONTRACTOR shall indemnify, defend, and hold harmless DISTRICT and any and all
of its employees, officials, and agents from and against any liability (including liability for
claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory
proceedings, losses, expenses, or costs of any kind, whether actual, alleged, or
threatened, including attorney's fees and costs, court costs, interest, defense costs, and
expert witness fees) where the same arise out of, pertain to, relate to, are a
consequence of, or are in any way attributable to, in whole or in part, the performance of
this AGREEMENT by CONTRACTOR or by any individual or entity for which
CONTRACTOR is legally liable, including, but not limited to, officers, agents,
employees, or subcontractors of CONTRACTOR.
8. TERMINATION
DISTRICT may terminate this AGREEMENT at any time with or without cause. If
DISTRICT terminates this AGREEMENT without cause before PROJECT completion,
CONTRACTOR shall be entitled to be paid for SERVICES adequately completed prior
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to the notification of termination. CONTRACTOR may terminate this AGREEMENT for
cause only.
9. MISCELLANEOUS
This AGREEMENT shall be interpreted according to the laws of the State of
California and any action arising from this AGREEMENT shall be brought in the superior
or federal district court with jurisdiction over DISTRICT.
This AGREEMENT and the attachments hereto shall contain the entire
agreement between the parties. This AGREEMENT cannot be modified except in a
writing signed by both parties. In the event of inconsistency between this AGREEMENT
and any attachment hereto, this AGREEMENT shall control in all respects.
DISTRICT shall own all work product prepared in the course of providing the
SERVICES under this AGREEMENT. In the event of termination of this AGREEMENT,
CONTRACTOR shall immediately turn all work product over to DISTRICT. If
specialized software or computer hardware is required to view or transmit said work
product, CONTRACTOR shall make that software and hardware available to the
DISTRICT at no cost during normal business hours.
This AGREEMENT cannot be assigned without the prior written consent of the
DISTRICT.
CONTRACTOR is and shall at all times remain as to DISTRICT an independent
contractor. No employee benefits shall be available to CONTRACTOR in connection
with the performance of this AGREEMENT. Except for the fees paid to CONTRACTOR
as provided in this AGREEMENT, DISTRICT shall not pay salaries, wages, or other
compensation to CONTRACTOR for performing any services hereunder for DISTRICT.
DISTRICT shall not be liable for compensation or indemnification to CONTRACTOR for
injury or sickness arising out of performing any services hereunder.
All information gained by CONTRACTOR in the performance of this
AGREEMENT shall be considered confidential and shall not be released by
CONTRACTOR without DISTRICT's prior written authorization. CONTRACTOR shall
not, without written authorization from the General Manager or unless requested by the
District Counsel, voluntarily provide declarations, letters of support, testimony at
depositions, response to interrogatories, or other information concerning the work
performed under this AGREEMENT. Response to a subpoena or court order shall not
be considered "voluntary" provided CONTRACTOR gives DISTRICT notice of such
court order or subpoena.
CONTRACTOR warrants that the individual who has signed this AGREEMENT
has the legal power, right, and authority to make this AGREEMENT and bind the
CONTRACTOR hereto. If you agree with the terms of this AGREEMENT, indicate by
signing and dating two original agreements where indicated below and return both to
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the undersigned. Once the documents are fully executed, one original will be returned
to you for your records.
DISTRICT CONTRACTOR
Approved by: Reviewed_an. Accepted by:
General Manager Signature
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iff.i111_■( Typed Name
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Title
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Date
APPROVED AS TO FORM:
Harper & Burns LLP
Associate District Counsel
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EXHIBIT A
SCOPE OF WORK
Bid No. CMSD-12-12
Provide two factory trained field technicians and one service truck with 5 ton
crane to perform annual preventive maintenance on 20 sewer pump stations.
Technicians must be confined space trained. The following scope of work will be
performed at each pump station.
• Remove the motors to examine the impellers for wear and torque;
• Change the oil;
• Check the motor windings for resistance;
• Test and check the general condition of the pumps;
• Re-install the pumps and test the system, which must include the following
functions:
✓ Check the general condition of the electrical control panel and internal
components. Inspect and tighten all electrical connections within the
panel using Thermal Imaging Instrument or equal.
✓ Record the run time meters and compare with last recordings for correct
run times. Enter into onsite log.
✓ Take amperage reading for each motor and compare with last recording
for correct operating amperage under load. Record in onsite log.
✓ Visually inspect motor chords and check resistance.
✓ Inspect the motor starter contact points, circuit breakers and control fuses.
✓ Test SCADA system.
✓ Test alarm lights and telemetry. (Where applicable).
✓ Examine pump well for excessive debris and grease. An assessment and
percentage of debris must be indicated on the service report,
recommending clean out if needed.
✓ Inspect pump well walls, piping, ladder rungs for any damage from
hydrogen sulfide.
✓ Observe the pumps in normal (automatic) operation and in hand
operation.
✓ Inspect, clean, exercise, lubricate and adjust check valve. Visually
inspected for operation, leaks and excessive corrosion.
✓ Inspect and exercise gate/plug valves
✓ Record pumps down and fill times.
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✓ Observe station in a normal working operation and with all control
enclosures closed.
✓ After each service, submit in writing any potential problems and/or
recommendations.
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