HomeMy Public PortalAboutinstall agreementAGREEMENT
for
METER DEPLOYMENT SERVICES
between
Indian River County
and
National Metering Services, Inc.
TABLE OF CONTENTS
ARTICLE 1. BACKGROUND AND BUSINESS OBJECTIVES............................................................ 8
1.01
Background.......................................................................................................................8
1.02
Business Objectives...........................................................................................................
8
ARTICLE 2. DEFINITIONS AND INTERPRETATION......................................................................
8
2.01
Definitions.........................................................................................................................8
2.02
Other Terms......................................................................................................................
8
2.03
Construction......................................................................................................................8
2.04
References.........................................................................................................................9
2.05
Headings and Cross-References........................................................................................
9
ARTICLE3. TERM.....................................................................................................................
10
3.01
Term................................................................................................................................
10
ARTICLE
4. SERVICES...............................................................................................................
10
4.01
General............................................................................................................................10
4.02
Implied Services..............................................................................................................
10
4.03
National Responsibility...................................................................................................
10
4.04
Non -Exclusivity; Right to In -source and Re -source the Services .....................................
10
4.05
Out -of -Scope Services.....................................................................................................
10
ARTICLE
5. METER DEPLOYMENT PLAN..................................................................................
11
5.01
General............................................................................................................................11
5.02
Contents of Deployment Plan.........................................................................................
11
5.03
Preparation and Completion of Deployment Schedule ..................................................
13
5.04
National's Performance..................................................................................................
13
ARTICLE
6. BOARD APPROVALS AND CONSENTS....................................................................
14
6.01
Board Approvals..............................................................................................................
14
6.02
Consents..........................................................................................................................14
ARTICLE
7. COMPLIANCE WITH LAW AND REGULATIONS......................................................
14
7.01
Compliance with Law......................................................................................................
14
7.02
Changes in Law and Regulations.....................................................................................
14
ARTICLE
8. COMPLIANCE WITH INDIAN RIVER COUNTY POLICIES AND PROCEDURES ..........
15
8.01
Installation, Testing and Product Standards...................................................................
15
2
8.02
Safety and Security Procedures......................................................................................
15
8.03
Computing System Access and Security Review Obligations .........................................
15
8.04
Workforce Requirements and Fitness for Duty..............................................................
16
ARTICLE
9. SERVICE LEVELS AND QUALITY ASSURANCE.........................................................
18
9.02
Failure to Perform...........................................................................................................
18
9.03
Excused Performance......................................................................................................
18
9.04
Measurement and Monitoring Tools..............................................................................
18
9.05
Service Level Reporting...................................................................................................
19
9.06
Quality Assurance...........................................................................................................
19
ARTICLE
10. CUSTOMER SATISFACTION...................................................................................
19
10.01
Customer Satisfaction...................................................................................................
19
ARTICLE
11. INDIAN RIVER COUNTY RESPONSIBILITIES............................................................
19
11.01
IRC Responsibilities.......................................................................................................
19
ARTICLE
12. SERVICE LOCATIONS AND FACILITIES....................................................................
20
12.01
Service Locations...........................................................................................................
20
12.02
National Safety and Security Procedures......................................................................
20
12.03
National Data Connections...........................................................................................
20
12.04
Data Connection Security..............................................................................................
21
ARTICLE
13. NATIONAL PERSONNEL.........................................................................................
21
13.01
National Project Coordinator........................................................................................
21
13.02
Key National Positions..................................................................................................
21
13.03
Qualifications, Retention and Replacement of National Personnel .............................
22
13.04
Subcontractors..............................................................................................................23
13.05
Conduct of National Personnel.....................................................................................
23
ARTICLE
14. INTENTIONALLY LEFT BLANK.................................................................................
23
ARTICLE
15. CONTROL AND MANAGEMENT.............................................................................
24
15.01
Reports and Meetings...................................................................................................
24
ARTICLE
16. INTELLECTUAL PROPERTY RIGHTS........................................................................
24
16.01
National Software.........................................................................................................
24
16.02
IRC Software..................................................................................................................
24
16.03
Export............................................................................................................................25
16.04
Bankruptcy Code...........................................................................................................
25
ARTICLE
17. APPROVAL OF DOCUMENTS.................................................................................
25
3
17.01
Submission and Approval of Documents......................................................................
25
17.02
Non -conforming Documents........................................................................................
25
17.03
Change Control Procedures..........................................................................................
26
ARTICLE 18. PROTECTION OF INDIAN RIVER COUNTY DATA ........................................................
26
18.01
Ownership of IRC Data..................................................................................................
27
18.02
Data Security.................................................................................................................
27
18.03
Privacy Requirements...................................................................................................
27
18.04
Notification of Breach...................................................................................................
27
18.05
Correction of Errors.......................................................................................................
28
18.06
Return of Data...............................................................................................................
28
ARTICLE 19. CONTINUED PROVISION OF SERVICES..................................................................
28
19.01
Force Majeure...............................................................................................................
28
19.02
Business Continuity and Disaster Recovery Plan..........................................................
28
19.03
Termination...................................................................................................................29
ARTICLE 20. PAYMENTS TO NATIONAL.....................................................................................
29
20.01
Charges..........................................................................................................................29
20.02
Detailed Invoices...........................................................................................................
29
20.03
Progress Payments........................................................................................................
29
20.04
Pay Requests.................................................................................................................
30
20.05
Billing and Payment Disputes........................................................................................
30
20.06
Liquidated Damages......................................................................................................
30
20.07
Accountability...............................................................................................................30
20.08
Taxes..............................................................................................................................31
ARTICLE21.
AUDITS..................................................................................................................
31
21.01
Services.........................................................................................................................31
21.02
Charges..........................................................................................................................31
21.03
Data...............................................................................................................................32
21.04
Audit Follow-Up............................................................................................................
32
21.05
Compliance Requirements............................................................................................
32
21.06
Record Retention..........................................................................................................
32
ARTICLE
22. CONFIDENTIALITY.................................................................................................
32
22.01
General Obligations.......................................................................................................32
22.02
Exclusions......................................................................................................................33
4
22.03 Unauthorized Acts......................................................................................................... 33
22.04 No Implied Rights.......................................................................................................... 34
22.05 Return or Destruction of Confidential Information...................................................... 34
22.06 Public Records Compliance........................................................................................... 34
ARTICLE 23. REPRESENTATIONS AND WARRANTIES................................................................ 35
23.01 By IRC............................................................................................................................ 35
23.02 By National. National represents and warrants that: .................................................. 35
23.03 DISCLAIMER...................................................................................................................36
ARTICLE 24. ADDITIONAL COVENANTS..................................................................................... 36
24.01 By IRC............................................................................................................................ 36
24.02 By National.................................................................................................................... 36
ARTICLE 25. DISPUTE RESOLUTION........................................................................................... 38
25.01 General..........................................................................................................................38
25.02 Dispute Resolution........................................................................................................ 38
25.03 Jurisdiction....................................................................................................................39
25.04 Equitable Remedies.......................................................................................................40
25.05 Continued Performance................................................................................................ 40
ARTICLE 26. TERMINATION....................................................................................................... 40
26.01 Termination for Cause.................................................................................................. 40
26.02 Termination for Convenience....................................................................................... 41
26.03 Termination in Regards to F.S. 287.135........................................................................ 41
ARTICLE 27. INTENTIONALLY LEFT BLANK................................................................................. 42
ARTICLE28. SUSPENSION.......................................................................................................... 42
28.01 Suspension....................................................................................................................42
ARTICLE 29. INDEMNIFICATION................................................................................................ 42
29.01 Indemnification............................................................................................................. 42
ARTICLE30. DAMAGES.............................................................................................................. 42
30.01 Direct Damages............................................................................................................. 42
30.02 Consequential Damages................................................................................................ 43
30.03 Exclusions......................................................................................................................43
ARTICLE31. INSURANCE........................................................................................................... 43
31.01 Insurance Coverage....................................................................................................... 43
31.02 Insurance Conditions.................................................................................................... 44
A
31.03 Insurance Documentation............................................................................................. 44
31.04 Risk of Loss.................................................................................................................... 44
31.05 Reporting Claims........................................................................................................... 45
ARTICLE 32. MISCELLANEOUS PROVISIONS.............................................................................. 45
32.01 Assignment....................................................................................................................45
32.02 Notices..........................................................................................................................45
32.03 Counterparts.................................................................................................................46
32.04 Relationship...................................................................................................................46
32.05 Consents, Approvals and Requests............................................................................... 46
32.06 Severability....................................................................................................................46
32.07 Waivers..........................................................................................................................46
32.08 Publicity.........................................................................................................................46
32.09 Entire Agreement.......................................................................................................... 47
32.10 Amendments.................................................................................................................47
32.11 Survival..........................................................................................................................47
32.12 Third -Party Beneficiaries............................................................................................... 47
32.13 Governing Law.............................................................................................................. 47
32.14 Sole and Exclusive Venue.............................................................................................. 47
32.15 Covenant of Further Assurances................................................................................... 48
32.16 Negotiated Terms.......................................................................................................... 48
32.17 Conflict of Interest........................................................................................................ 48
EXHIBIT1-SERVICES..................................................................................................................... 50
1. PROJECT OVERVIEW.......................................................................................................... 50
2. PROJECT RESOURCES........................................................................................................ 50
3. PROJECT MANAGEMENT.................................................................................................. 53
3.1 Description................................................................................................................ 53
3.2 Project Management Roles and Responsibilities Matrix .......................................... 53
4. METER INSTALLATION....................................................................................................... 55
4.1 Description................................................................................................................ 55
4.2 Meter Installation Roles and Responsibilities Matrix ............................................... 56
5. CUSTOMER COMMUNICATIONS....................................................................................... 59
5.1 Description................................................................................................................ 59
5.2 Customer Communications Roles and Responsibilities Matrix ................................ 59
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6. MDM PORTAL................................................................................................................... 60
6.1 Description................................................................................................................60
6.2 MDM Portal Roles and Responsibilities Matrix........................................................ 61
7. SOFTWARE, TOOLS, AND METHODOLOGIES.................................................................... 63
8. DEPLOYMENT SCHEDULE.................................................................................................. 63
EXHIBIT 2 - CHARGES AND PERFORMANCE.................................................................................. 64
SERVICE PRICING....................................................................................................................... 64
WARRANTEE.............................................................................................................................. 66
PERFORMANCE CRITERA........................................................................................................... 66
EXHIBIT 3 — CUSTOMER NOTIFICATION POSTCARD..................................................................... 68
EXHIBIT 4 —CUSTOMER NOTIFICATION DOOR HANGERS............................................................ 69
EXHIBIT5 - DEFINITIONS............................................................................................................... 70
7
This Agreement for Meter Deployment Services (this "Agreement"), dated as of 2019
(the "Effective Date"), is made and entered into by and between National Metering Serivices,
Inc. ("National"), and Indian River County ("IRC"), each of National Metering Service, Inc. and
Indian River County sometimes referred to individually as a "Party" and together as the
"Parties".
ARTICLE 1. BACKGROUND AND BUSINESS OBJECTIVES
1.01 Background.
(1) Through the competitive Request for Proposal (RFP) process, IRC has selected
National to provide the planning, design, deployment, implementation, and
acceptance testing of the AMR System within Indian River County's service
territory and MDM Portal (collectively, the "AMR Solution") services.
1.02 Business Objectives. IRC and National acknowledge that the specific business objectives
of this Agreement are:
(1) for National to provide services in connection with the deployment and
installation of AMR meters in accordance with an IRC-approved deployment plan
and schedule;
(2) for National to manage the supply chain for AMR meter deployment from
coordination of meter vendor shipments through installation;
(3) for National to manage logistics and all equipment associated with AMR meter
deployment;
(4) for National to manage its personnel in accordance with applicable safety rules;
(5) for National to provide all information and performance reporting requirements;
and
(6) for National to coordinate all customer contact processes and activities.
ARTICLE 2. DEFINITIONS AND INTERPRETATION
2.01 Definitions. Unless otherwise defined in this Agreement, capitalized terms used in this
Agreement shall have the meanings set forth in Exhibit 5.
2.02 Other Terms. Unless otherwise defined in this Agreement, those terms, acronyms and
phrases utilized in the metrology, communications and/or utilities industries or other pertinent
business context shall be interpreted in accordance with their generally understood meaning in
such industry or business context.
2.03 Construction. The provisions of Article 1 are intended to be a general introduction to
q:3
this Agreement and are not intended to expand the scope of the obligations of IRC or National
under this Agreement or to alter the plain meaning of the terms and conditions of the
Agreement. However, to the extent the terms and conditions of this Agreement do not address
a particular circumstance or are otherwise unclear or ambiguous, such terms and conditions are
to be interpreted and construed so as to give full effect to the provisions in Article 1.
2.04 References. Unless otherwise specified, in this Agreement and the Exhibits and
Appendices to this Agreement:
(1) shall be incorporated into and deemed part of this Agreement and all references
to this Agreement shall include the Exhibits hereto attached to this Agreement;
(2) a reference to a person shall include its permitted successors and permitted
assigns;
(3) accounting terms shall have the meanings assigned to them by generally
accepted accounting principles, consistently applied;
(4) references to and use of the words "include," "includes" and "including" or the
phrase "e.g." shall not be limiting;
(5) the words "hereof," "herein" and "hereunder" and words of similar import shall
refer to this Agreement as a whole and not to any particular provision, unless
otherwise indicated;
(6) references to any Law shall mean references to such Law in changed or
supplemented form, or to a newly adopted Law replacing a previous Law;
(7) references to and use of the word "days" shall mean calendar days, unless
otherwise specified;
(8) references to and use of the word "hours" shall mean hours as determined on a
247 basis and not business hours, unless otherwise specified;
(9) references to an Exhibit or Appendix shall mean such Exhibit or Appendix as
amended, modified, supplemented or replaced from time to time, with any
changes thereto subject to the Change Control Procedures or written
amendment; and
(10) references to National include National Agents, Equipment providers, Software
providers and service providers, where such entities are performing services or
providing Equipment necessary for the performance of the deployment services.
2.05 Headings and Cross -References. The Article and Section headings and the table of
contents used in the Agreement are for reference and convenience only and shall not enter into
the interpretation of the Agreement. Any reference in the Agreement to a particular Article or
Section number or Exhibit or Appendix shall mean that the reference is to the specified Article,
Section, Exhibit or Appendix to the Agreement, except to the extent that the cross-reference
expressly refers to another document.
O]
ARTICLE 3. TERM
3.01 Term. The term of this Agreement shall commence on the Effective Date
and shall continue until 3 months after completion of the deployment test of final installed
meters (the "Agreement Expiration Date"), or such earlier date upon which this Agreement may
be terminated pursuant to Article 26.
ARTICLE 4. SERVICES
4.01 General. Commencing as of the Effective Date and continuing throughout the Term,
National shall provide the services, functions and Documents, and perform the responsibilities
described in this Agreement, as they may be supplemented, enhanced, modified or replaced,
including the services, functions, Documents and responsibilities described in Exhibit 1
(collectively, the "Services").
4.02 Implied Services. If any services, functions, deliverables or responsibilities not
specifically described in this Agreement are required for the proper performance of the
Services, such services, functions, responsibilities or deliverables shall be deemed to be implied
by and included within the scope of the Services to the same extent and in the same manner as
if expressly described in this Agreement.
4.03 National Responsibility. National shall be responsible for (1) providing the
Services in accordance with this Agreement even if, by agreement of the Parties, such Services
are actually performed by persons other than National Personnel acting under the
management and direction of National, and (2) providing the facilities, personnel, Equipment,
Software, materials, technical knowledge, training, expertise and other recourses necessary for
the proper performance of the Services. National shall not be responsible for providing the
AMR meter, except as specifically set forth in this Agreement.
4.04 Non -Exclusivity; Right to In -source and Re -source the Services. This Agreement
does not give National any exclusive rights with respect to the provision of any services,
including the Services. At any time during the Term, IRC shall have the right to perform itself
("In- source"), or retain third parties to perform ("Re -source"), any of the Services. To the
extent IRC In -sources or Re -sources any of the Services, National shall cooperate with IRC and
any applicable Third -Party Providers.
4.05 Out -of -Scope Services. IRC may from time to time during the Term request
that National perform an Out -of -Scope Service. Any Out -of -Scope Service, including IRC's
request for and approval of a National's proposal and deliverables for such Out -of -Scope
Service, shall be processed in accordance with the Change Control Procedures.
Otel
ARTICLE 5. METER DEPLOYMENT PLAN
5.01 General.
(1) National shall provide the Services and Documents for the deployment and
installation of AMR Meters (the "Deployment") in accordance with the
deployment and installation plan (the "Deployment Plan") as described in
Section 5.02.
(2) IRC shall perform the IRC Responsibilities in accordance with the Deployment
Plan.
5.02 Contents of Deployment Plan. The Deployment Plan shall, as a minimum, include the
following information:
(1) a detailed description of the strategy, approach and activities that National will
undertake to deploy, install and test the AMR Meters, including specifics as to
(a) mapping and scheduling; (b) route saturation, route acceptance, route
commissioning and AMR Meter commissioning; (c) accommodating IRC
constraints (e.g., labor constraints, operations schedules and plans, scheduled
meter readings (blackout periods) and planned outages); (d) identifying AMR
Meter inventories required to support deployment/installation schedules and
coordinating with IRC personel on purchases; (e) warehousing of AMR Meters
(including quarantine procedures), transporting IRC accepted AMR Meters to
warehouse, and returning Rejected Meters to AMR Meter supplier(s) for
replacement; allocation of warehouse by service territory administrative regions
(including details regarding start-up, duration of operation, close-out and
relocation of cross -docks); (f) transportation of AMR Meters and fleet
management; (g) work order management (e.g., National's methodology to
manage individual customer installations from a scheduling, completion and
close out perspective); (h) transfer or hand-off of responsibility for AMR Meters
from the manufacturer/vendor to National; (i) meter asset tracking (e.g.,
inventory control procedures) of AMR Meters, including use of barcodes ; (j)
quality assurance and quality control procedures to ensure that employees are
adequately trained to follow procedures, and perform accurate and quality
installations; (k) removal and disposal of Replaced Meters, including temporary
storage and transfer of such Replaced Meters to disposal sites; (1) procedures for
the handoff of non -accessible meters to IRC (m) performance of On -Site Repairs
and removal and re -installation, or installation, of lock rings; (n) National's
proposed management and administration of the Deployment, including
National's organization structure, National's procedures for
interfacing/interaction with IRC's AMR field deployment organization, National's
procedures for ensuring coordination, maintaining up-to-date operating plans,
11
solving real-time problems and otherwise tracking and managing National's
performance, National's problem definition and escalation processes;
(2) a detailed description of the responsibilities to be performed by National in
order for National to properly complete the Deployment, including (a) National's
process for identifying, procuring and maintaining all necessary Consents (i.e.,
legal and regulatory permits and approvals) for the Deployment; and (b)
National's proposed approach to cooperating with Third -Party Providers (e.g.,
meter suppliers, communications suppliers), including exchanging information;
(3) a detailed description of (a) the technology, Equipment, Tools, office space,
warehouses and other physical facilities, vehicles, methodologies, procedures,
personnel and organization that National will use to perform the Services; and
(b) National's procedures with respect to the loss of or damage to Equipment or
Tools;
(4) a detailed description of the approach and activities that National will undertake
in respect of human resources and labor requirements necessary to perform the
Services, including (a) training personnel to install AMR Meters in accordance
with then current manufacturer's requirements; (b) training, auditing and
enforcing compliance of National personnel with respect to National and IRC
safety practices, policies and procedures relating to the Services; (c) hiring and
managing personnel, including administering pre -employment background
checks and random drug testing; (d) licensing and certification of National
Personnel as required to perform the Services;
(5) a detailed description of the approach and activities that National will undertake
in respect of data management and security, including (a) data security (e.g.,
secure transmission and storage, data encryption); (b) data transfer (e.g.,
transfer of data from field to FTP Server); (c) data storage (e.g., secure storage,
provision of FTP Server, provision of handheld devices); (d) data access by IRC
(e.g., provision of secure, web -based, real-time information on progress and
performance of Services such as customer information and location, and AMR
Meter GPS coordinates); and (e) data management and reporting (e.g., field data
management processes used to track, record, and capture field installation and
billing data, including information upload and download methods/schedules, and
proposed National reporting contents and schedules);
(6) a detailed description of the approach and activities that National will undertake
in respect of National contact with IRC customers, including (a) ensuring minimal
service disruption; (b) scheduling customer appointments in connection with
overall schedule for deployment and installation of AMR Meters, and
communicating same to IRC (c) ensuring a quality customer experience in
relation to the Services; (d) managing customer claims filed with IRC and (e)
providing a call center and related services;
(7) a detailed description of the IRC Responsibilities that IRC is required to complete
in connection with the Deployment;
12
(8) a detailed description of the potential risks associated with the Deployment and
the risk management, mitigation and control strategies that will be used by
National to eliminate or minimize such risks;
(9) a detailed description of the process National will use to resolve or settle third -
party claims;
(10) any other information or planning necessary to ensure that the Deployment
takes place on schedule and without disruption to IRC's business.
5.03 Preparation and Completion of Deployment Schedule.
(1) National shall be responsible for preparing and maintaining the Deployment
Schedule. The current draft of the Deployment Schedule as of the Effective Date
is attached as Exhibit 1, Section 8. Within 30 days of the Effective Date, National
shall revise and finalize the Deployment Schedule, and provide it to IRC for IRC's
review and comment. All revisions proposed by National after the Effective Date
shall be for the purpose of adding additional detail and shall be consistent with
the terms and conditions in this Contract. IRC shall provide its comments in
writing within 15 days after receiving the Deployment Schedule. Thereafter,
National shall cooperate and work closely with IRC in finalizing the Deployment
Plan, including incorporating IRC's reasonable comments, and working with IRC
to resolve any matter with respect to which the Parties are not in agreement. If
IRC does not approve the final Deployment Schedule, it shall state in writing its
reasons for such disapproval, and the Parties shall work together to resolve the
disputed matters in accordance with Article 25. To the extent that any
disapproval is based upon what IRC in good faith believes to be inconsistencies
between the National -proposed changes and the terms and conditions in this
Contract, such disapproval shall conclusively be deemed reasonable and IRC shall
not be acting in bad faith if it declines to agree to such changes or to
compromise its position.
(2) Any subsequent changes to the Deployment Schedule shall be made in
accordance with the Change Control Procedures set forth in Section 17.03.
(3) At least once each quarter beginning in the first full calendar quarter after the
final Deployment Plan is approved, National shall submit a revised Deployment
Schedule reflecting all changes made in accordance with the Change Control
Procedures and any other agreed -upon change.
5.04 National's Performance. National shall perform the Deployment in accordance
with the Deployment Plan and in such a manner so as to not disrupt IRC's business operations
(except to the extent that National has provided IRC with reasonable advance written notice of
such disruption and IRC has agreed in writing that such disruption is acceptable). National shall
provide all cooperation and assistance reasonably required and requested by IRC in connection
with IRC's evaluation of the Services.
13
ARTICLE 6. BOARD APPROVALS AND CONSENTS
6.01 Board Approvals. IRC shall use commercially reasonable efforts to obtain and maintain
the Board Approvals. Upon IRC's request, National will cooperate with and assist IRC in
obtaining and maintaining any such Board Approvals.
6.02 Consents. National shall use commercially reasonable efforts to obtain and maintain
all Consents, with IRC's cooperation.
ARTICLE 7. COMPLIANCE WITH LAW AND REGULATIONS
7.01 Compliance with Law. National shall comply with all applicable federal, state, local
or other Laws applicable to National and/or its performance of the Services, and shall obtain all
applicable permits and licenses required of National in connection with its obligations under
this Agreement. Without limiting the generality of the foregoing, National shall (1) comply with
the applicable employment practice requirements of Executive Order 11246 of September 24,
1965, and applicable regulations promulgated thereunder, and (2) be solely responsible for
being aware of and initiating, maintaining and supervising compliance with all safety Laws,
precautions, and programs in connection with the performance of the Services. Prior to
performing any Services, National shall ensure that National Personnel and National Agents are
fully informed of all safety, health, and security Laws pertaining to the Services they are to
perform.
7.02 Changes in Law and Regulations.
(1) National shall promptly identify and notify IRC of any changes in Law that may
relate to IRC's use of the Services or National's delivery of the Services. National
and IRC shall work together to identify the impact of such changes on how IRC
uses, and National delivers, the Services. National shall be responsible for any
fines and penalties arising from any noncompliance with any Law, except that
IRC shall be responsible for any fines and penalties arising from any
noncompliance by IRC with any Law relating to IRC's use of the Services, to the
extent such noncompliance was not caused by National.
(2) National shall perform the Services regardless of changes in Law, unless such
changes in Law would make it unlawful to continue to perform the Services or a
portion thereof. If such changes in Law impact how National or IRC performs its
obligations under this Agreement, National shall develop and, upon IRC's
approval, implement a suitable workaround until such time as National or IRC, as
applicable, can perform its obligations under this Agreement without such
workaround; provided, however, that if such workaround results in an increase
in the Charges or IRC's costs, then (a) IRC may, upon notice to National,
terminate this Agreement, in whole or in part, as of the termination date
specified in the notice, without cost or penalty and without the payment of any
14
termination charges, or (b) IRC may request that such workaround be
implemented, and the Parties shall negotiate and implement an equitable
adjustment to the applicable Charges.
(3) Any Changes in the Services required for the Services to comply with a change in
any Law shall be the subject of a Change Order.
ARTICLE 8. COMPLIANCE WITH INDIAN RIVER COUNTY POLICIES AND
PROCEDURES
8.01 Installation, Testing and Product Standards. National shall comply with the installation,
testing and quality standards as described in Exhibit 1.
8.02 Safety and Security Procedures. National shall comply with the safety and security
procedures of IRC and its customers.
8.03 Computing System Access and Security Review Obligations.
(1) If IRC determines in its sole discretion that, in order for National to perform the
Services, National may require access to IRC's communications and computing
systems, which include computers, servers, applications, files, electronic mail,
electronic equipment, wireless devices, data resources, and IRC-sponsored
connections to the Internet communications network (collectively, "Computing
Systems"), then IRC shall grant National access to such Computing Systems,
provided that such access shall be subject to the conditions herein provided. IRC
authorizes National to access the Computing Systems only for the purpose of
National performing the Services in accordance with the terms of the
Agreement. In the event National was previously granted access, or is granted
access, to IRC's Computing Systems, National represents, warrants and
covenants that (a) if applicable, it has accessed such Computing Systems only as
required to perform the Services and in compliance with the requirements set
forth in this Section, and (b) it shall only access such Computing Systems as
required to perform the Services in accordance with the terms of the
Agreement.
(2) National shall promptly identify in writing to IRC those National Personnel who
will, in order to perform the Services, require access to such Computing Systems,
and IRC shall, issue appropriate computer and/or e-mail accounts, passwords
and access authorizations to National and such National Personnel. When any
National Personnel with Computing Systems access is reassigned to non-IRC
work or is no longer employed by National or National Agents (as applicable),
National shall immediately notify the IRC Project Manager by email that such
personnel will no longer be performing any of the Services and IRC may
immediately delete Computing System access for such employee or agent.
15
National shall confirm such verbal notification in writing to the IRC Project
Manager, or designee, within 24 hours of the verbal notification. Upon delivery
of written notice to the IRC Project Manager, National shall immediately deliver
all IRC-owned Computing Systems equipment that may have been issued or
loaned to such re- assigned or terminated National Personnel.
(3) National shall comply, and shall cause National Personnel who access the
Computing Systems to comply, with all IRC policies and procedures in regard to
such access. National shall ensure that the Computing Systems, any user
accounts, passwords or any other access authorizations, and all IRC information
and data contained in the Computing Systems, remain secure during National
access and that the Computing Systems and all information and data retrieved
during such access remain confidential, secure and protected from disclosure to
unauthorized parties.
(4) National shall be responsible for any breach of this Section by National
Personnel, or by any other person who obtained access to the Computing
Systems from National in violation of this Section, and National shall notify IRC
immediately in the event National has reason to know or suspect that a breach
of this Section may have occurred. In the event IRC determines that any
National Personnel may have breached this Section, IRC may immediately revoke
or terminate National's or National Agents' access to IRC Computing Systems;
provided, however, that such revocation or termination shall not relieve National
of its obligations to perform the Services in accordance with the terms of the
Agreement. Notwithstanding the foregoing right to revoke or terminate
National's access to IRC's Computing Systems, IRC may exercise any other legal
or equitable right to terminate the Agreement and may exercise any other
remedy that may be available to it at Law or in equity or under the Agreement.
(5) National shall execute, and shall cause the National Personnel and National
Agents' personnel to execute, any documents IRC may deem reasonably
necessary to ensure compliance with this Section.
(6) National represents, warrants and covenants to IRC that it and National Agents
have each taken, and will continue to take, all commercially reasonable steps
necessary, including the implementation of security industry best practices, to
maintain the confidentiality, integrity and availability of its own computing
systems. IRC or its authorized representative shall have the right at any time to
examine National's and National Agents' records and reports relating to their
respective security policies, practices and procedures, including any internal,
external or regulatory audit reports or reviews relating to the security of
National's or National Agents' computing systems, and their compliance
therewith, and National represents and warrants that it has the authority to
grant IRC or its authorized representatives such access to National Agents'
records and reports.
8.04 Workforce Requirements and Fitness for Duty. National Personnel shall comply
16
with the requirements set forth in this Section. Failure to comply with these requirements may
result in the withholding of payment of invoices until such requirements are satisfied and/or
IRC's cancellation of the Contract without any penalty or notice. In addition, National shall be
liable for any additional expenses related to special processing, investigations and badging,
which result from non-compliance with these requirements.
(1) During the provision of the Services, National shall immediately notify IRC
whenever National becomes aware of evidence that any National Personnel,
who has, or will have, any involvement in the provision of the Services, has been
convicted of a felony or any crime of fraudulent nature.
(2) IRC supports a diverse work force and prohibits unlawful employment
discrimination and harassment of every kind, including sexual harassment, in
accordance with state and federal Laws. Whenever present on IRC property or
facilities, National shall require National Personnel, and National Agents to
comply with all applicable federal and state statutes, acts, regulations, codes and
standards prohibiting conduct that might reasonably be construed as violating
state or federal equal opportunity Laws, including conduct such as making
sexually suggestive jokes or remarks, touching, assaulting, making gestures of a
sexual or suggestive nature, and impeding or blocking any IRC employee's or IRC
Agents' movement.
(3) National shall require that the National Personnel and the personnel of National
Agents: (a) shall report for work in a manner fit to do their job; (b) shall not be
under the influence of or in possession of any alcoholic beverages or of any
controlled substance (except a controlled substance as prescribed by a physician
for such person so long as the performance or safety of the Services is not
affected thereby); and (c) shall not have been convicted of a felony, any crime of
a fraudulent nature, or any criminal offense that may have a discernible adverse
impact on IRC. Searches by IRC authorized representatives may be made of
lockers, storage areas, vehicles, persons or personal effects on IRC-owned or
leased property at various times without prior announcement. Such facility
inspections may be conducted using detection dog teams to search work areas
and other common areas in order to detect evidence of unlawful drug use or any
prohibited items, including pyrotechnics, explosives, firearms, weapons, or
facsimiles thereof, alcohol and illegal drugs ("Prohibited Items"). Prohibited
Items must not be brought onto or kept on IRC property. National shall advise
National Personnel of the requirements set forth in this Section before National
Personnel enter a Service Location or access a jobsite, and National shall
immediately remove from such Service Location or jobsite any person
determined to be in violation of this Section. National shall impose the
requirements set forth in this Section on National Agents. IRC may cancel any
portion of the Services if National violates this Section.
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ARTICLE 9. SERVICE LEVELS AND QUALITY ASSURANCE
9.01 Service Levels. National shall perform the Services in accordance with the Service
Levels set forth in Exhibit 1 and Exhibit 2. With respect to those components of the Services for
which a Service Level is not defined, the performance of such Services by National shall be at a
level at least equal to the service levels satisfied by well -managed operations performing
services similar to the Services.
9.02 Failure to Perform.
(1) In the event of a Service Level Default, National shall immediately (a) investigate,
assemble and preserve pertinent information with respect to, and report on the
causes of, the problem, including performing a root cause analysis of the
problem; (b) advise IRC, as and to the extent requested by IRC, of the status of
remedial efforts being undertaken with respect to such problem; (c) minimize
the impact of and correct the problem and begin meeting the Service Level; and
(d) take appropriate preventive measures so that the problem does not recur.
(2) National recognizes that a Service Level Default may have a material adverse
impact on the business and operations of IRC. Accordingly, in the event that the
Services fail to meet an applicable Service Level for reasons other than those
that are excused pursuant to Section 9.03, then in addition to any other
remedies available to IRC under this Agreement, at Law or in equity, IRC may
elect to recover for such Service Level Default the respective Corrective Action as
set forth in Exhibit 2.
9.03 Excused Performance. To the extent that any Service Level Default is directly
attributable to: (1) a Force Majeure Event; (2) a breach of this Agreement by IRC that prevents
National from meeting the applicable Service Level; or (3) acts or omissions of IRC or a Third -
Party Provider not under National's direction or control, then such Service Level shall be
excused, and no Corrective Action shall accrue with respect to such Service Level Default,
provided that (a) National was unable to alert IRC of the consequences of such acts or
omissions or IRC disregarded any such alert by National as to the consequences of such acts or
omissions, and (b) National was unable to take reasonable steps to avert such consequences.
9.04 Measurement and Monitoring Tools. As of the Effective Date, National shall
implement the measurement and monitoring tools and procedures required to measure and
report (as contemplated by Section 9.05) National's performance of the Services against the
applicable Service Levels. Such measurement and monitoring tools and procedures shall (1)
permit reporting at a level of detail sufficient to verify compliance with the Service Levels and
(2) be subject to audit by IRC or its designee. Upon request, National shall provide IRC and its
designees with information concerning access to such measurement and monitoring tools and
procedures for inspection and verification purposes.
m
9.05 Service Level Reporting. No later than the fifth day of each month during the Term
and Termination Assistance Period, National shall provide IRC with a monthly performance
report describing, as measured pursuant to Section 9.04, National's performance of the
Services in the preceding month, which report shall be made available to IRC in an online,
electronic form (the "Monthly Service Level Report"). The Monthly Service Level Report shall:
(1) assess the degree to which National has attained or failed to attain the Service Levels: (2)
explain any Service Level Defaults and include a plan for corrective action where appropriate;
(3) identify any problems or issues that are being caused by the acts or omissions of any third -
party providers known to National and the steps being taken to resolve any such problems or
issues: and (4) include such documentation and other information as IRC may reasonable
request to verify compliance with the Service Levels.
9.06 Quality Assurance. National, as part of its total quality management process and
without limiting any other National obligations set forth in this Agreement, shall provide
continuous quality assurance and quality improvement through (1) the identification and
application of proven techniques, tools, processes and methodologies being used elsewhere
within its operations (i.e., "best practices"), and (2) the implementation of programs, practices
and measures designed to improve the Service Levels. Such procedures shall include
checkpoint reviews, testing, acceptance, and other procedures for IRC to confirm the quality of
National's performance. National shall utilize project management tools and methodologies,
including productivity aids and project management systems, as appropriate in performing the
Services.
ARTICLE 10. CUSTOMER SATISFACTION
10.01 Customer Satisfaction. IRC may, from time to time during the Term, request National
to participate in customer satisfaction surveys, in respect of any aspect of the Services. The
timing, content, scope and method of the survey shall be determined by IRC. National shall use
its best efforts to promptly correct deficiencies identified by such customer satisfaction surveys
that are attributable to National, including National's performance of the Services.
ARTICLE 11. INDIAN RIVER COUNTY RESPONSIBILITIES
11.01 IRC Responsibilities.
(1) IRC shall appoint an individual (the "IRC Project Manager") who from the
Effective Date shall serve as the primary IRC representative under this
Agreement. IRC shall notify National upon appointment of the IRC Project
Manager. The IRC Project Manager shall (a) have overall responsibility for
managing and coordinating the performance of IRC's obligations under this
Agreement, and (b) be authorized to act for and on behalf of IRC with respect to
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all matters relating to this Agreement. Notwithstanding the foregoing, the IRC
Project Manager may, upon notice to National, delegate such of his or her
responsibilities to other IRC employees or representatives, as the IRC Project
Manager deems appropriate. Only the IRC Project Manager, or personnel
expressly designated as the IRC Project Manager's delegates shall be authorized
to make commitments on the part of IRC that commit IRC resources. IRC
reserves the right to change the IRC Project Manager at any time during the
Term and Termination Assistance Period.
(2) In connection with the provision of the Services, IRC shall (a) cooperate with
National, including by making available management decisions, information,
approvals and acceptances as reasonably requested by National, and (b) perform
the responsibilities (the "Indian River County Responsibilities").
(3) IRC's failure to perform its responsibilities set forth in this Agreement shall not
be deemed to be grounds for termination by National. National's
nonperformance of its obligations under this Agreement shall be excused if and
to the extent (a) such nonperformance by National results from IRC's failure to
perform any responsibilities of IRC that are set forth in this Agreement; and(b)
National provides IRC with reasonable notice of such nonperformance and uses
commercially reasonable efforts to perform notwithstanding IRC's failure to
perform.
ARTICLE 12. SERVICE LOCATIONS AND FACILITIES
12.01 Service Locations. The Services shall be from the Designated National Service
Locations. National and National Agents may not provide or market services to a third -party
from a Designated National Service Location without IRC's consent.
12.02 National Safety and Security Procedures. National shall maintain and enforce at the
Designated National Service Locations safety and security procedures that are at least equal to
the highest of (1) industry standards for locations similar to the Designated National Service
Locations; (2) the procedure in effect at locations of other National customers; and (3) any
higher standard otherwise agreed upon by the Parties.
12.03 National Data Connections. National shall be responsible for providing any data
connection between any of the Designated National Service Locations and IRC-designated
points of access to the IRC data network, and for secure firewalls to be located at Designated
National Service Locations (the "National Data Connection") that are necessary to provide the
Services from a Designated National Service Location. National shall use the National Data
Connection to the IRC data network only for the purpose of delivering the Services. National
shall be responsible for managing and maintaining the National Data Connection, and for
managing and maintaining the firewalls at its end of the National Data Connection and all of its
networks and Equipment on its side of the firewall.
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12.04 Data Connection Security. National shall cause all National Data Connections to
comply with IRC's data and network security policies as such policies are provided by IRC to
National from time to time during the Term and Termination Assistance Period.
ARTICLE 13. NATIONAL PERSONNEL
13.01 National Project Coordinator. National shall appoint an individual (the "National
Project Coordinator") who shall be the primary National representative under this Agreement.
The National Project Coordinator or their designee shall be available to IRC at all times when
Services are being performed and shall make reasonable efforts to be reachable by cell phone
or other means at all other times. The National Project Coordinator shall (1) have overall
responsibility for managing and coordinating the performance of National's obligations under
this Agreement, (2) serve as the single point of accountability for National for the Services, and
(3) be authorized to act for and on behalf of National with respect to all matters relating to this
Agreement. The National Project Coordinator shall be a Key National Position.
13.02 Key National Positions.
(1) In addition to the position of National Project Coordinator, IRC may designate a
National position as "Key National Position". National shall cause each of the
National Personnel filling the Key National Positions to devote substantially full
time and effort to the provision of the Services for at least 12 months from the
date that such National Personnel are assigned to fill each Key National Position,
unless (a) a different period is specified in Exhibit 1, or (b) an individual
voluntarily resigns, is dismissed by National for cause, or dies or is unable to
work due to illness or disability.
(2) The National Personnel designated as of the Effective Date to fill the Key
National Positions are listed in Exhibit 1. IRC may from time to time change the
positions designated as Key National Positions under this Agreement, provided
that without National's consent, the number of Key National Positions shall not
exceed the number then currently specified in Exhibit 1.
(3) Before assigning an individual to a Key National Position, whether as an initial
assignment or a subsequent assignment, National shall notify IRC of the
proposed assignment, introduce the individual to appropriate IRC
representatives, provide such representatives upon request with the opportunity
to interview the individual, and provide IRC with a resume and other information
about the individual reasonably requested by IRC (except to the extent
prohibited by Law). If IRC in good faith objects to the proposed assignment, the
Parties shall attempt to resolve IRC's concerns to the reasonable satisfaction of
IRC. If the Parties have not been able to resolve IRC's concerns within five
business days, National shall (a) not assign the individual to that position, and (b)
propose to IRC the assignment of another individual of suitable ability and
qualifications. Individuals filling Key National Positions may not be transferred or
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re -assigned until a suitable replacement has been approved by IRC, and no such
transfer shall occur at a time or in a manner that would have an adverse impact
on delivery of the Services.
13.03 Qualifications, Retention and Replacement of National Personnel.
(1) National shall assign an adequate number of National Personnel to perform the
Services. National Personnel shall be properly educated, trained and qualified
with respect to the Services they are to perform. National acknowledges and
agrees that it shall be the responsibility of National to provide adequate levels of
training and education so that the National Personnel remain current as to
recent developments in meter deployment and installation practices, methods,
techniques, tools and processes and any other industry and technology
developments that are necessary for such National Personnel to properly
perform the Services. IRC shall not be required to pay to train or educate any
National Personnel.
(2) National shall provide IRC with a list of all National Personnel dedicated full-time
to providing the Services (a) at the end of every calendar month until completion
of Services in Exhibit 1, and (b) upon the occurrence of any change in such
National Personnel.
(3) All National Personnel shall (a) report for work in a manner fit to do their job, (b)
not be under the influence of or in possession of any alcoholic beverages or of
any controlled substance (except as prescribed by a physician so long as the
performance or safety of the work is not affected thereby) and (c) not have been
convicted of any serious criminal offense which may have a discernible adverse
impact on IRC.
(4) National will be solely responsible for compliance with immigration and visa
Laws and requirements in respect of the National Personnel. National
represents and warrants that all non -United States citizens who are assigned by
National or National Agents to perform the Services within the United States (a)
will hold appropriate and valid visas or other work authorizations, and (b) will
not be provided by National with any technology or information in violation of
any Laws applicable to National in the provision of the Services.
(5) National agree that it is in their best interests to keep the attrition rate of
National Personnel to a reasonably low level. National shall use commercially
reasonable efforts to keep such attrition rate to a reasonably low level.
Notwithstanding transfer, attrition or other turnover of National Personnel,
National remains obligated to perform the Services without degradation and in
accordance with the terms of this Agreement.
(6) In the event that IRC determines in good faith that the continued assignment to
IRC's account of any of the National Personnel is not in the best interests of IRC,
then IRC shall give National written notice to that effect and National shall
replace that person with another person of suitable ability and qualifications.
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13.04 Subcontractors. Prior to subcontracting any of the Services, National shall notify IRC of
the proposed subcontract and shall obtain IRC's written approval of such subcontract. Prior to
amending, modifying or otherwise supplementing any subcontract relating to the Services,
National shall notify IRC of the proposed amendment, modification or supplement and shall
obtain IRC's written approval thereof.
(1) No subcontracting arrangement shall release National from its responsibility for
its obligations under this Agreement. National shall be responsible for the work
and activities of each of its subcontractors, including compliance with the terms
of this Agreement. National shall be responsible for all payments to its
subcontractors.
(2) National shall promptly pay for all services, materials, equipment and labor used
by National in providing the Services and shall indemnify IRC from, and defend
IRC against, any liabilities or expenses (including reasonable attorneys' fees and
expenses) connected with National's failure to promptly pay for such services,
materials, equipment or labor and shall keep the IRC premises free of all liens.
13.05 Conduct of National Personnel. While in performance of Services, National and
National Agents shall (1) comply with the requests, standard rules and regulations of IRC and
IRC customers regarding safety and health, personal and professional conduct (including the
wearing of a particular uniform, identification badge or personal protective equipment and
adhering to facility regulations and general safety practices or procedures), including those IRC
policies and procedures, and (2) otherwise conduct themselves in a businesslike manner.
National shall cause the National Personnel to maintain and enforce the confidentiality
provisions of this Agreement. If IRC determines that a particular member of the National
Personnel is not conducting himself or herself in accordance with this Section, IRC may notify
National of such conduct. Upon receipt of such notice, and provided that immediate removal of
the applicable person would not be required under Section 8.03(4), National shall promptly
investigate the matter and take appropriate action which may include (a) removing the
applicable person from the IRC account and providing IRC with prompt notice of such removal
and replacing the applicable person with a similarly qualified individual or (b) taking other
appropriate disciplinary action to prevent a recurrence. In the event of a violation of Section
8.03 by a particular member of the National Personnel, National shall promptly remove the
individual as set forth in (a) in the preceding sentence. In the event of repeat violations of this
Section by a particular member of the National Personnel, National shall promptly remove the
individual from the IRC account as set forth in (a) above; provided, however, that any
disagreement between IRC and National in respect of any such repeat violations shall be
resolved in accordance with Article 25.
ARTICLE 14. INTENTIONALLY LEFT BLANK
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ARTICLE 15. CONTROL AND MANAGEMENT
15.01 Reports and Meetings.
(1) National shall provide to IRC those reports described in Exhibit 1 at the
frequencies set forth therein.
(2) National shall participate in the meetings described in Exhibit 1 and any other
meetings reasonably requested by IRC in connection with this Agreement.
National shall prepare and circulate an agenda sufficiently in advance of each
meeting to give participants an opportunity to prepare for the meeting. National
shall incorporate into such agenda items that IRC desires to discuss. National
shall prepare and circulate minutes promptly after each meeting.
ARTICLE 16. INTELLECTUAL PROPERTY RIGHTS
16.01 National Software.
(1) National shall be responsible in all respects for the National Software, Tools and
methodologies it uses in connection with providing the Services. Upon IRC's
request, National shall provide IRC with a list of all National Software, Tools and
methodologies being used in connection with the Services as of the date of such
request. As of the Effective Date, the National Software, Tools and
methodologies that will be used by National to provide the Services are listed in
Exhibit 1.
(2) To the extent IRC (or any Third -Party Provider) requires the use of any National
Software, Tools or Methodologies in order to work with National in the
Deployment or receive the benefit of the Services, National hereby grants to IRC
a non-exclusive, worldwide, fully paid up, royalty free license to Use (and to
allow third parties to Use solely for the benefit of IRC to support and operate
IRC's business) the National Software, Tools and Methodologies for use in
connection with the Services during the Contract Term.
16.02 IRC Software. As between IRC and National, all right, title and interest in and to the IRC
Software shall remain the exclusive property of IRC. IRC hereby grants to National, solely as
required to provide the Services, a non-exclusive, non -transferable, limited right to have access
to and (1) use the IRC Proprietary Software, (2) use, to the extent permissible under the
applicable third -party agreements, the IRC Third -Party Software and (3) use, to the extent
permissible under the applicable third -party agreements, any Related Documentation in IRC's
possession on or after the Effective Date. National may sublicense, to the extent permissible
under the applicable third -party agreements, to National Agents the right to have access to and
use the IRC Software solely to provide those Services that such National Agents are responsible
for providing and as may otherwise be agreed to by the Parties.
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16.03 Export. The Parties acknowledge that certain Documents, Software, Equipment and
technical data to be provided hereunder and certain transactions hereunder may be subject to
export controls under the Laws of the United States and other countries. Neither Party shall
export or re- export any such items or any direct product thereof or undertake any transaction
in violation of any such Laws. To the extent within National's control, National shall be
responsible for, and shall coordinate and oversee, compliance with such export Laws in respect
of such items exported or imported under this Agreement.
16.04 Bankruptcy Code. Any license granted by National under this Agreement shall be a
license of "intellectual property rights" as defined in Section 365(n) of title XI, U.S. Bankruptcy
Code, and any such license shall be governed by such Section of the Bankruptcy Code in the
event that National seeks or is involuntarily placed under the protection of the Bankruptcy
Code.
ARTICLE 17. APPROVAL OF DOCUMENTS
17.01 Submission and Approval of Documents.
(1) Upon delivery by National to IRC of any Documents, IRC shall review such
Documents to determine if it conforms to IRC's requirements for such
Documents, including those requirements set forth in Exhibit 1.
(2) If IRC reasonably determines that such Documents do not conform to the
applicable Documents Requirements, IRC shall so notify National in writing
setting forth in reasonable detail (to the extent possible) any errors or
deficiencies. National shall correct or rework such Documents so that it
conforms to the applicable Documents Requirements, within 10 days (or such
other time period as agreed upon by the Parties) of National's receipt of notice
of non -acceptance. Such correction shall be performed by National at no
additional charge to IRC.
(3) Upon redelivery of such Documents to IRC, IRC shall review such Documents and
advise National within five days whether it conforms to its Documents
Requirements; provided, however, that after the earlier of (a) two attempts by
National to correct such Documents, and (b) 21 days after the initial delivery of
such Documents, such Documents shall be deemed to not conform to the
applicable Documents Requirements and Section 17.02 shall apply.
(4) If IRC determines that a Documents conforms to its Documents Requirements,
IRC shall, in a timely manner, notify National in writing of IRC's acceptance of
such Documents.
17.02 Non -conforming Documents. If Documents do not conform to the Documents
Requirements, pursuant to Section 17.01(3), then IRC shall be entitled, at its option, to accept
25
the non -conforming Documents subject to such reduction in the applicable Charges payable
under Exhibit 2, as determined (a) by agreement of the Parties, or (b) pursuant to the dispute
resolution procedures set forth in Article 25 if the Parties cannot agree to the amount of
reduction within 30 days after IRC requests a reduction.
17.03 Change Control Procedures.
(1) No Change shall be implemented without IRC's approval, except as may be
necessary on a temporary basis to maintain the continuity of the Services.
(2) IRC shall describe all Changes, whether proposed by IRC or National, in a Change
Order and submit the proposed Change Order to National for approval.
(National shall propose any Change in a request to the IRC Project Manager and
IRC may, at its sole discretion, elect to prepare a proposed Change Order in
respect of such Change.) National shall promptly review any proposed Change
Order. Within two working days after National receives a proposed Change
Order from IRC, National shall notify IRC of any objections to such proposed
Change Order and National shall work with IRC to promptly resolve those
objections. If any proposed Change Order would result in an increase in the cost
to National of providing the Services or in a change to the schedule upon which
any Services are to be provided, the Parties shall negotiate an equitable
adjustment to the Charges, the schedule, or both, as appropriate. National's
delivery to IRC of a Change Order (as approved by IRC) signed by National, or
National's implementation of the Changes in such order, constitutes National's
agreement to such order and all Changes therein. All Change Orders issued by
IRC and accepted by National as described herein shall amend where applicable
the terms of this Agreement. Change Orders resulting in an increase in cost or a
substantial change in the expectations set forth in this agreement may require
Board Approval and will not be deemed accepted until such approval is obtained.
(3) With respect to all Changes, National shall (a) other than those Changes made on
a temporary basis to maintain the continuity of the Services, schedule Changes
so as not to unreasonably interrupt IRC's business operations, (b) prepare and
deliver to IRC each month a rolling schedule for ongoing and planned Changes
for the next three month period and (c) monitor the status of Changes against
the applicable schedule.
(4) With respect to any Change made on a temporary basis to maintain the
continuity of the Services, National shall document and provide to IRC
notification (which may be given orally provided that any oral notice must be
confirmed in writing to IRC within three business days) of the Change no later
than the next business day after the Change is made.
ARTICLE 18. PROTECTION OF INDIAN RIVER COUNTY DATA
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18.01 Ownership of IRC Data. All IRC Data is and shall remain the property of IRC and shall
be deemed Confidential Information of IRC. National shall not possess or assert any lien or
other right against or to the IRC Data. Without IRC's approval (in its sole discretion), the IRC
Data shall not be (1) used by National or National Agents other than in connection with
providing the Services, (2) disclosed, sold, assigned, leased or otherwise provided to third
parties by National or National Agents unless required by law or (3) commercially exploited by
or on behalf of National or National Agents. National hereby irrevocably assigns, transfers and
conveys, and shall cause National Agents to assign, transfer and convey, to IRC without further
consideration all of its and their right, title and interest in and to the IRC Data. Upon request by
IRC, National shall execute and deliver, and shall cause National Agents to execute and deliver,
any financing statements or other documents that may be necessary or desirable under any
federal, state, or local Law to preserve, or enable IRC to enforce, its rights hereunder with
respect to the IRC Data.
18.02 Data Security. National shall establish and maintain safeguards against the destruction,
loss or alteration of the IRC Data in the possession or control of National (the "Data
Safeguards") that shall be no less rigorous than those (1) required by applicable Federal, state,
local or other Laws, (2) IRC data security policies in effect as of the Effective Date, (3) National's
data security policies in effect as of the Effective Date at each Designated National Service
Location. National shall revise and maintain the Data Safeguards at IRC's request. In the event
National intends to implement a change to the Data Safeguards (including pursuant to IRC's
request), National shall notify IRC and, upon IRC's approval, implement such change.
18.03 Privacy Requirements. National shall perform its obligations under this Agreement
with respect to all IRC Perconally Identifiable Infomration ("PII") in compliance with all
applicable Laws relating to the collection, dissemination, transfer and use of data, and the
privacy and security of confidential, personal, sensitive or other protected data (collectively,
"Privacy Laws") as applicable to National's use of, access to and custody of IRC PII. Without
limiting the generality of the foregoing, certain Privacy Laws may require National to cause
National Personnel with access to applicable IRC PH to execute confidentiality and non-
disclosure agreements. National shall reasonably cooperate with IRC in connection with IRC's
efforts to comply with applicable Privacy Laws. Nothing in this Agreement shall be deemed to
prevent any Party from taking the steps it reasonably deems necessary to comply with any
Privacy Laws applicable to it in connection with this Agreement. The Parties acknowledge that
IRC alone shall determine the purposes for which any IRC PII shall be processed in the
performance, provision or receipt of the Services. IRC shall not provide National with access to
IRC PII unless it is reasonably necessary for National to have access to such IRC PH in connection
with performing the Services.
18.04 Notification of Breach. In the event National or National Agents discovers or is notified
of a breach or potential breach of security relating to the IRC Data, National shall immediately
(1) notify the IRC Project Manager of such breach or potential breach and (2) if the applicable
IRC Data was in the possession of National or National Agents at the time of such breach or
27
potential breach, National shall (a) investigate and cure the breach or potential breach and (b)
provide IRC with assurance satisfactory to IRC that such breach or potential breach will not
recur.
18.05 Correction of Errors. At National's expense, National shall promptly correct any errors
or inaccuracies in the IRC Data and the reports delivered to IRC under this Agreement, to the
extent caused by National or National Agents. At IRC's request, and at National's expense,
National shall promptly correct any other errors or inaccuracies in the IRC Data or such reports
caused by input of National processes or resources.
18.06 Return of Data. Upon request by IRC at any time during the Term, upon expiration or
termination of this Agreement or during the Termination Assistance Period, National shall (1)
promptly return to IRC, in the format and on the media requested by IRC, all or any part of the
IRC Data and (2) erase or destroy all or any part of the IRC Data in National's possession, in each
case to the extent so requested by IRC. Any archival mediums containing IRC Data shall be used
by National and National Agents solely for back-up purposes.
ARTICLE 19. CONTINUED PROVISION OF SERVICES
19.01 Force Majeure. If and to the extent that a Party's performance of any of its obligations
pursuant to this Agreement is prevented, hindered or delayed by fire, flood, earthquake,
hurricane, elements of nature or acts of God, union work stoppages, acts of war, terrorism,
riots, civil disorders, rebellions or revolutions or any other similar cause beyond the reasonable
control of such Party (each, a "Force Majeure Event"), or by the declaration of a Force Majeure
Event of a Third -Party Provider, and such non-performance, hindrance or delay could not have
been prevented by reasonable precautions, then that Party shall be excused for such non-
performance, hindrance or delay, as applicable, of those obligations affected by the Force
Majeure Event for as long as such Force Majeure Event continues and such Party continues to
use its best efforts to recommence performance whenever and to whatever extent possible
without delay, including through the use of alternate sources, workaround plans or other
means. The Party whose performance is prevented, hindered or delayed by a Force Majeure
Event shall immediately notify the other Party of the occurrence of the Force Majeure Event
and describe in reasonable detail the nature of the Force Majeure Event. The occurrence of a
Force Majeure Event does not excuse, limit or otherwise affect National's obligation to provide
either normal recovery procedures or any other Disaster recovery services described in Section
19.02.
19.02 Business Continuity and Disaster Recovery Plan.
(1) National shall (a) develop, submit to IRC for IRC's review and approval, and
implement a business continuity and disaster recovery plan ( a "DRP")
acceptable to IRC within 10 days of the Effective Date, (b) periodically update
:
and test the operability of the DRP during every 12 month period that the DRP is
fully operational, (c) certify to IRC at least twice during every 12 month period
that the DRP is fully operational and (d) implement the DRP upon the occurrence
of a Disaster. National shall use its best efforts to ensure that the DRP
incorporates industry standards and proven technologies in the planning and
recovery from disasters. National shall also define and implement regular
system backup and recovery procedures as set forth in the DRP. After approval
by IRC, the DRP shall be incorporated into Exhibit 1.
(2) National shall (a) notify IRC on or before the next business day after the
occurrence of a Disaster affecting the Services identified in Exhibit 1 (b) on or
before the fifth business day after the occurrence of such a Disaster either (i)
reinstate such Services or (ii) present to IRC a written plan for the reinstatement
of such Services and reinstate such Services on or before the twentieth business
day after the occurrence of such a Disaster.
(3) In the event of a Disaster, National shall not increase its charges under this
Agreement or charge IRC usage fees in addition to the Charges.
19.03 Termination. If a Disaster occurs and National is unable to provide the Services, and
IRC is unable to perform or receive the Services from a third -party service provider for a period
of 10 days or more, IRC may, in its sole discretion, terminate this Agreement or remove such
impacted Services from the scope of this Agreement. IRC will not be liable to National for any
early termination charges for any such termination. IRC's rights under this Section shall be
cumulative with all of its other rights and remedies under this Agreement.
ARTICLE 20. PAYMENTS TO NATIONAL
20.01 Charges. In consideration of National providing the Services, IRC shall pay to National
the Charges set forth in Exhibit 2. Except as expressly set forth in Exhibit 2, there shall be no
charges or fees payable by IRC in respect of National's performance of its obligations pursuant
to this Agreement.
20.02 Detailed Invoices. National shall provide to IRC's Accounts Payable Division invoices
with the detail described in Exhibit 2.
20.03 Progress Payments. IRC shall make progress payments to National on the basis of the
approved partial payment request as recommended by the IRC PM in accordance with the
provisions of the Local Government Prompt Payment Act, Florida Statutes Section 218.70 et.
seq. IRC shall retain ten percent (10%) of the payment amounts due to National until fifty
percent (50%) completion of the work. After fifty percent (50%) completion of the work is
attained as certified to IRC by the IRC PM in writing, IRC shall retain five percent (5%) of the
payment amount due to National until final completion and acceptance of all work to be
performed by National under the Contract Documents. Pursuant to Florida Statutes Section
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218.735(8)(b), fifty percent (50%) completion means the point at which the County has
expended fifty percent (50%) of the total cost of the construction services work purchased
under Exhibit 1, together with all costs associated with existing change orders and other
additions or modifications to the construction services work provided under the Contract
Documents.
20.04 Pay Requests. Each request for a progress payment shall contain National's
certification. All progress payments will be on the basis of progress of the work measured by
the schedule of values established, or in the case of unit price work based on the number of
units completed. After fifty percent (50%) completion, and pursuant to Florida Statutes Section
218.735(8)(d), National may submit a pay request to IRC for up to one half (1/2) of the
retainage held by IRC, and IRC shall promptly make payment to National unless such amounts
are the subject of a good faith dispute; the subject of a claim pursuant to Florida Statutes
Section 255.05(2005); or otherwise the subject of a claim or demand by IRC or National.
National acknowledges that where such retainage is attributable to the labor, services, or
materials supplied by one or more subcontractors or suppliers, National shall timely remit
payment of such retainage to those subcontractors and suppliers. Pursuant to Florida Statutes
Section 218.735(8)(c)(2005), National further acknowledges and agrees that: 1) the IRC shall
receive immediate written notice of all decisions made by National to withhold retainage on
any subcontractor at greater than five percent (5%) after fifty percent (50%) completion; and 2)
National will not seek release from the IRC of the withheld retainage until the final pay request.
20.05 Billing and Payment Disputes. Billing and payment disputes shall be subject Florida
Statutes Section 218.76.
20.06 Liquidated Damages. National and IRC recognize that time is of the essence of this
Agreement and that IRC will suffer financial loss if the Work is not completed within the times
specified in Exhibit 1, plus any extensions thereof allowed in writing as a Change Order to this
Agreement. Liquidated damages will commence for this portion of work. The parties also
recognize the delays, expense, and difficulties involved in proving in a legal proceeding the
actual loss suffered by IRC if the Work is not completed on time. Accordingly, instead of
requiring any such proof, IRC and National agree that as liquidated damages for delay (but not
as a penalty), National shall pay IRC $1,148.00 for each calendar day that expires after the time
specified in Exhibit 1 for completion and readiness for final payment until the Work is
completed and ready for final payment.
20.07 Accountability. National shall maintain complete and accurate records of and
supporting documentation for the amounts billable to and payments made by IRC hereunder in
accordance with generally accepted accounting principles applied on a consistent basis.
National agrees to provide IRC with documentation and other information with respect to each
invoice as may be reasonably requested by IRC to verify accuracy and compliance with the
provisions of this Agreement.
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20.08 Taxes. The Parties' respective responsibilities for taxes arising under or in connection
with the Agreement shall be as follows:
(1) Each Party shall be responsible for any personal property taxes on property it
owns or leases, for franchise and privilege taxes on its business, and for taxes
based on its net income or gross receipts.
(2) National shall be responsible for any sales, use, excise, value-added, services,
consumption and other taxes and duties payable by National on the goods or
services used or consumed by National in providing the Services where the tax is
imposed on National's acquisition or use of such goods or services and the
amount of tax is measured by National's costs in acquiring such goods or
services.
(3) National shall be responsibile for any sales, use, excise, value- added, services,
consumption or other tax becoming applicable during the Term or during the
Termination Assistance Period (or that is increased during the Term or the
Termination Assistance Period) that is assessed on the provision of the Services
as a whole, or on any particular component of the Services. IRC is tax exempt.
ARTICLE 21. AUDITS
21.01 Services. Upon notice from IRC, National and National Agents shall provide IRC or IRC
Agents with access to any information and any assistance that they may require for the purpose
of performing audits or inspections of the Services and the business of IRC relating to the
Services. If any audit by an auditor designated by IRC or an IRC Agent results in National being
notified that National or National Agents are not in compliance with any Law, regulation or
audit requirement, National shall, and shall cause National Agents to, promptly take actions to
comply with such Law, regulation or audit requirement. National shall bear the expense of any
such response that is (a) required by a Law, regulation or other audit requirement relating to
National's business or (b) necessary due to National's noncompliance with any Law, regulation
or audit requirement imposed on National. To the extent the expense is not payable by
National pursuant to the preceding sentence, IRC shall bear the expense of any such
compliance that is (a) required by a Law, regulation or other audit requirement relating to IRC's
business or (b) necessary due to IRC's noncompliance with any Law, regulation or audit
requirement imposed on IRC.
21.02 Charges. Upon notice from IRC, National shall provide IRC and IRC Agents with access
to such financial records and supporting documentation as may be requested by IRC and IRC
and IRC Agents may audit the Charges charged to IRC to determine if such Charges are accurate
and in accordance with this Agreement.
(1) If, as a result of such audit, IRC determines that National has overcharged IRC,
IRC shall notify National of the amount of such overcharge and National shall
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promptly pay to IRC the amount of the overcharge, plus Interest calculated from
the date of receipt by National of IRC's payment of the overcharged amount until
the date of payment reimbursing IRC.
(2) In addition to IRC's rights set forth in Section 21.02(1), in the event any such
audit reveals cumulative overcharges to IRC of $10,000 or more in any rolling 12-
month period, National shall reimburse IRC for the reasonable cost of each audit
that revealed such overcharges.
21.03 Data. Upon notice from IRC, National and National Agents shall provide IRC and IRC
Agents with access to any information and any assistance that they may require for the purpose
of performing audits or inspections to verify the integrity of IRC Data and examine the Systems
that process, store, secure and transmit that data.
21.04 Audit Follow -Up. Following an audit, IRC shall conduct, or request its external auditors
to conduct, an exit conference with National to discuss the issues identified in the review.
National and IRC shall meet to review each audit report promptly after the issuance thereof and
agree upon the appropriate manner, if any, in which to respond to the changes suggested by
the audit report.
21.05 Compliance Requirements. National recognizes that IRC will be subject to Compliance
Requirements. National shall provide reasonable assistance to the extent necessary to assist
IRC to comply with such requirements solely as they relate to National's provision of Services
hereunder in connection with the Deployment. National will comply with IRC's financial
reporting and control processes communicated to National by IRC and provide IRC with copies
of related records, reports and data maintained by National as necessary for IRC to satisfy
Compliance Requirements.
21.06 Record Retention. National shall retain records and supporting documentation
sufficient to document the Services and the Charges paid or payable by IRC under this
Agreement for a period of two years from the billing for such Services, notwithstanding the
expiration or termination of this Agreement.
ARTICLE 22. CONFIDENTIALITY
22.01 General Obligations. All Confidential Information relating to or obtained from IRC or
National, including the terms and conditions of this Agreement, shall be held in confidence by
the recipient to the same extent and in at least the same manner as the recipient protects its
own confidential or proprietary information, but in no event less than reasonable means.
Neither IRC nor National shall, or shall cause or permit any third -party to, disclose, publish,
release, announce, transfer or otherwise make available Confidential Information of, or
obtained from, the other in any form to, or for the use or benefit of, any person or entity
without the disclosing Party's consent. Each of IRC and National shall, however, be permitted
32
to disclose relevant aspects of the other's Confidential Information to (1) its officers, directors,
agents, professional advisors, lenders, lender's independent advisors, National, subcontractors
and employees to the extent that such disclosure is reasonably necessary for the performance
of its duties and obligations under this Agreement or for corporate governance purposes;
provided, however, that the recipient shall take all reasonable measures to ensure that
Confidential Information of the disclosing Party is not disclosed or duplicated in contravention
of the provisions of this Agreement by such officers, directors, agents, professional advisors,
lenders, lender's independent advisors, National, subcontractors and employees, and (2) to
Third -Party Providers, as and to the extent necessary for IRC to obtain the benefits of this
Agreement in the conduct of its business and to coordinate National's services with those of
such Third -Party Providers, where in each such case, the receiving Third -Party Provider first
agrees in writing to the obligations described in this Section.
22.02 Exclusions. The obligations in this Section shall not restrict any disclosure pursuant to
any applicable Law or by order of any court or government agency, or a formal or informal
request by the County or any member or employee of the County (provided that the recipient
shall give prompt notice to the disclosing Party of such order) and, except to the extent that
local law provides otherwise, shall not apply with respect to information that (1) is
independently developed by the recipient without violating the disclosing Party's proprietary
rights as shown by the recipient's written records, (2) is or becomes publicly known (other than
through unauthorized disclosure), including any information contained in and retrievable from
the public files of the County or any Federal or state agency, (3) is disclosed by the owner of
such information to a third -party free of any obligation of confidentiality, (4) is already known
by the recipient at the time of disclosure, as shown by the recipient's written records, and the
recipient has no obligation of confidentiality other than pursuant to this Agreement or any
confidentiality agreements entered into before the Effective Date between IRC and National or
(5) is rightfully received by a Party free of any obligation of confidentiality. Notwithstanding
anything to the contrary in this Article, it shall not be a violation or breach of confidentiality if
IRC provides information to the public or public officials concerning schedules, delays, numbers
of AMR Meters installed, or other information that IRC reasonably believes will increase the
public's or government's understanding of the deployment and installation of an AMR System.
Further, IRC shall be under no obligation to discuss or seek approval of press announcements,
media statements, or similar communications intended to make the public or public officials
more aware of IRC's deployment and installation of an AMR System.
22.03 Unauthorized Acts. Without limiting either Party's rights in respect of a breach of this
Article, each Party shall:
(1) promptly notify the other Party of any unauthorized possession, use or
knowledge, or attempt thereof, of the other Party's Confidential Information by
any person or entity that may become known to such Party;
(2) promptly furnish to the other Party full details of the unauthorized possession,
use or knowledge, or attempt thereof, and assist the other Party in investigating
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or preventing the recurrence of any unauthorized possession, use or knowledge,
or attempt thereof, of Confidential Information;
(3) cooperate with the other Party in any litigation and investigation against third
parties reasonably deemed necessary by the other Party to protect its
proprietary rights; and
(4) promptly use its best efforts to prevent a recurrence of any such unauthorized
possession, use or knowledge, or attempt thereof, of Confidential Information.
22.04 No Implied Rights. Each Party's Confidential Information shall remain the property of
that Party. Unless otherwise expressly set forth in this Agreement, nothing herein shall be
construed as obligating a Party to disclose its Confidential Information to the other Party, or as
granting to or conferring on a Party, expressly or impliedly, any rights or license to the
Confidential Information of the other Party.
22.05 Return or Destruction of Confidential Information. As requested by IRC during the
Term, upon expiration or any termination of the Agreement, during the Termination Assistance
Period, or upon completion of National's obligations under this Agreement, National shall
return or destroy, as IRC may direct, all material in any medium that contains, refers to, or
relates to IRC's Confidential Information, and retain no copies.
Each Party shall bear the costs it incurs as a result of compliance with this Section.
22.06 Public Records Compliance. Indian River County is a public agency subject to Chapter
119, Florida Statutes. National shall comply with Florida's Public Records Law. Specifically,
National shall:
(1) Keep and maintain public records required by IRC to perform the service.
(2) Upon request from IRC's Custodian of Public Records, provide IRC with a copy of
the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in Chapter 119 or as
otherwise provided by law.
(3) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by law for
the duration of the contract term and following completion of the contract if National
does not transfer the records to IRC.
(4) Upon completion of the contract, transfer, at no cost, to IRC all public records in
possession of National or keep and maintain public records required by IRC to perform
the service. If National transfers all public records to IRC upon completion of the
contract, National shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If National keeps
34
and maintains public records upon completion of the contract, National shall meet all
applicable requirements for retaining public records. All records stored electronically
must be provided to IRC, upon request from the Custodian of Public Records, in a format
that is compatible with the information technology systems of IRC.
IF NATIONAL HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER
119, FLORIDA STATUTES, TO NATIONAL'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT:
(772) 226-1424
publicrecords@ircgov.com
Indian River County Office of the County Attorney
180127th Street
Vero Beach, FL 32960
Failure of National to comply with these requirements shall be a material breach of this
Agreement.
ARTICLE 23. REPRESENTATIONS AND WARRANTIES
23.01 By IRC. IRC represents and warrants that:
(1) IRC is a public agency;
(2) IRC has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement;
(3) the execution, delivery and performance of this Agreement has been duly
authorized by IRC; and
(4) to the best of its knowledge, IRC is in compliance with all applicable federal,
state, local or other Laws applicable to IRC and has obtained, or will use
commercially reasonable efforts to obtain, all applicable permits and licenses
required of IRC in connection with its obligations under this Agreement.
23.02 By National. National represents and warrants that:
(1) National is a corporation duly incorporated, validly existing and in good standing
under the Laws of New Jersey;
(2) National has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement;
(3) National is duly licensed, authorized or qualified to do business and is in good
standing in every jurisdiction in which a license, authorization or qualification is
35
required for the ownership or leasing of its assets or the transaction of business
of the character transacted by it, except where the failure to be so licensed,
authorized or qualified would not have a material adverse effect on National's
ability to fulfill its obligations under this Agreement;
(4) the execution, delivery and performance of this Agreement has been duly
authorized by National;
(5) to the best of its knowledge, National is in compliance with all applicable federal,
state, local or other Laws applicable to National and has obtained all applicable
permits and licenses required of National in connection with its obligations
under this Agreement;
(6) there is no outstanding litigation, arbitrated matter or other dispute to which
National is a party which, if decided unfavorably to National, would reasonably
be expected to have a potential or actual material adverse effect on IRC's or
National's ability to fulfill its respective obligations under this Agreement;
(7) the National Software, and the Equipment and Tools provided by National do not
infringe upon the proprietary rights of any third -party; and
(8) any Equipment furnished under the Purchase Order that is subject to Part 68 of
the Federal Communications Commission's Rules and Regulations (the "FCC
Rules and Regulations") is registered under and complies with Part 68 of the FCC
Rules and Regulations, including, all labeling and instruction requirements.
23.03 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER IRC NOR
NATIONAL MAKES ANY OTHER WARRANTIES WITH RESPECT TO THE SERVICES OR THE SYSTEMS
AND EACH EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE.
ARTICLE 24. ADDITIONAL COVENANTS
24.01 By IRC, IRC covenants and agrees with National that during the Term and the
Termination Assistance Period, IRC shall comply with all applicable federal, state, local or other
Laws applicable to IRC and, except as otherwise provided in this Agreement, shall obtain all
applicable permits and licenses required of IRC in connection with its obligations under this
Agreement.
24.02 By National. National covenants and agrees with IRC that during the Term and the
Termination Assistance Period:
(1) National shall comply with all applicable federal, state, local or other Laws
applicable to National and, except as expressly provided otherwise in this
Agreement, shall obtain all applicable permits and licenses required of National
in connection with its obligations under this Agreement;
36
(2) the Services shall be rendered with promptness and diligence and in a
workmanlike manner, in accordance with the practices and high professional
standards used by professional services organizations performing services similar
to the Services;
(3) National shall be aware of, and familiar with, all collective bargaining
agreements that do or may pertain to or affect the Services or other work at the
job sites. National shall plan and conduct its operations so that National
Personnel and National Agents will work with the IRC personnel in a manner that
avoids delays, work stoppages, excessive labor costs, or other labor difficulties;
(4) National shall perform all Services under this Agreement, and otherwise conduct
its operations in a manner so as to avoid the risk of bodily harm to persons or
risk of damage to any property. In the event National fails to promptly correct
any violation of safety or health regulations, IRC may suspend all or any part of
the Services, and National shall not be entitled to any extension of time or
reimbursement for costs caused by any such suspension order. The failure of IRC
to order suspension of any or all of the Services shall not relieve National of its
responsibility for the safety of persons or property. National shall maintain an
accurate record of and shall promptly report to IRC all cases of property damage
in excess of $100 and of death, occupational diseases, or injury to National
Personnel or any third -parties arising from or related to the performance of the
Services. National shall promptly notify IRC and provide a copy of any safety
citation issued by any governmental entity.
(5) National shall keep all work areas in which it is performing Services free from
accumulation of waste materials or rubbish arising out of the Services, and prior
to completion of the Services shall remove and properly dispose of any such
rubbish, as well as remove all Equipment and materials not property of IRC or its
customers. Upon completion of Services, National shall leave the work area in a
condition satisfactory to IRC or its customers. In the event of National's failure
within a reasonable amount of time to comply with any of the foregoing, IRC
may, after notice to National of such failure, perform the cleanup and removal at
the expense of National;
(6) neither the National Software, nor the Tools, Systems or Equipment provided by
National, nor the Services or Documents will infringe upon the proprietary rights
of any third -party;
(7) National shall use current industry standard virus detection practices to ensure
that no viruses or similar items are coded or introduced into IRC Software or
Computing Systems. National agrees that, in the event a virus is found to have
been introduced into the IRC Software or Computing Systems, National shall use
commercially reasonable efforts to assist IRC in reducing the effects of the virus
and, if the virus causes a loss of operational efficiency or loss of data, to assist
IRC to the same extent to mitigate and restore such losses at no additional
expense to IRC; and
(8) without the consent of IRC, National shall not insert into the Software or Systems
used to provide the Services any code that would have the effect of disabling or
37
otherwise shutting down all or any portion of the Services. National further
covenants that, with respect to any disabling code that may be part of the
Software used to provide the Services, National shall not invoke such disabling
code at any time, including upon expiration or termination of this Agreement,
without IRC's prior written consent.
ARTICLE 25. DISPUTE RESOLUTION
25.01 General. Any dispute between the Parties arising out of or relating to the Agreement,
including with respect to the interpretation of any provision of the Agreement and with respect
to the performance by National or IRC shall be resolved as provided in this Article.
25.02 Dispute Resolution
(1) Notice of Dispute. Either Party asserting the existence of a material dispute
under, arising out of, in connection with or related to the Contract shall deliver a
written Notice (a "Dispute Notice") to the other Party describing the nature and
substance of the dispute. The Dispute Notice shall be delivered to the attention
of the other Party's designated recipient for notices under the Agreement.
(2) Initial Negotiation. The Parties shall then attempt in good faith to resolve the
dispute through negotiations by their respective authorized representatives
during the fifteen (15) Days following delivery of the Dispute Notice; provided,
that upon the written agreement of the Parties, such fifteen -Day period may be
extended up to an additional fifteen (15) Days. If such negotiations result in an
agreement in principle among such negotiators to settle the dispute, they shall
cause a written settlement agreement to be prepared and signed by the Parties,
whereupon the dispute shall be deemed settled, and not subject to further
dispute resolution hereunder.
(3) Executive Negotiation. If the Parties do not resolve and/or settle the dispute
within the negotiation period set forth in Section 25.02(2), the Parties shall then
attempt in good faith to resolve the dispute through negotiations by their
respective authorized executive officers during the ten (10) Days following the
end of the negotiation period under Section 25.02(2) before pursuing any of the
further means of dispute resolution hereunder. Upon the written agreement of
the Parties, the negotiation period may be extended up to an additional ten (10)
Days. If such negotiations result in an agreement in principle among such
negotiators to settle the dispute, they shall cause a written settlement
agreement to be prepared and signed by the Parties, whereupon the dispute
shall be deemed settled, and not subject to further dispute resolution.
(4) Mediation. Subject to Section 25.02(5), if the Parties do not resolve and/or
settle the dispute through the negotiations described in Section 25.02(2) and (3),
all remaining disputes shall then be submitted to mediation within ten (10) Days
from written notice of concluded negotiations following the Commercial
Mediation Rules published by the American Arbitration Association. Unless the
Parties agree otherwise, mediation shall be held in Vero Beach, Florida. This
agreement to mediate and any other agreement or consent to mediate entered
into in accordance with this agreement shall be specifically enforceable under
the prevailing laws of Florida. Notice of the demand for mediation shall be filed
in writing with the other Party to this Agreement. The demand for mediation
shall be made within a reasonable time, and in no event shall it be made after
the date when institution of legal or equitable proceedings based on such claim,
dispute or other matter in question would be barred by any applicable statute of
limitations.
(5) Other Dispute Resolution Procedures. Notwithstanding the provisions set forth
above in this Section 25.02, the Parties may, by mutual agreement, submit any
dispute for resolution in any other manner that they may agree to in writing at
the time such dispute arises; provided, however, that a Party's agreement to any
such other dispute resolution procedure with respect to any particular dispute
shall not act as a waiver of the right of any Party to have any other dispute
resolved in accordance with the dispute resolution procedures set forth above in
this Section 25.02.
(6) In the event the dispute resolution procedures set forth in this Section 25.02 are
unsuccessful, the provisions of Section 25.03 shall apply.
(7) Confidential Settlement Context. All negotiations, discussions, offers, counter
offers, data exchanges, proposed agreements and other communications
between the Parties in connection with any of the pre -litigation negotiations or
other dispute resolution procedures contemplated by this Section 25.02 are to
be deemed as having been made, exchanged and taken in confidence subject to
the confidentiality provisions hereof. Without limiting the preceding sentence,
all such communications shall be deemed to be in the context of attempting to
settle a disputed claim, shall not be construed, or be admitted in evidence in any
related or unrelated arbitration, litigation or other adversary proceeding, as an
admission or agreement as to the liability of any Party to such proceeding.
However such communications may be disclosed as required by law.
25.03 Jurisdiction. The Parties hereto submit to the exclusive jurisdiction of and venue in the
state courts located in Indian River County, Florida for purposes of any suit arising hereunder
instituted by any party. Any party hereto not domiciled in the State of Florida expressly assents
to extra -territorial service of process.
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25.04 Equitable Remedies. National acknowledges that, in the event it breaches (or attempts
or threatens to breach its obligations provided in Article 18 and Article 22, IRC may be
irreparably harmed. In such a circumstance, IRC may proceed directly to court. If a court of
competent jurisdiction should find that National has breached (or attempted or threatened to
breach) any such obligations, National agrees that, without any additional findings of
irreparable injury or other conditions to injunctive relief, it shall not oppose the entry of an
appropriate order compelling performance by National and restraining it from any further
breaches (or attempted or threatened breaches).
25.05 Continued Performance. Each Party agrees to continue performing its obligations
under the Agreement while a dispute is being resolved except to the extent the issue in dispute
precludes performance (dispute over payment shall not be deemed to preclude performance)
and without limiting either Party's right to terminate the Agreement as provided in Article 26.
ARTICLE 26. TERMINATION
26.01 Termination for Cause.
(1) The occurrence of any of the following shall constitute a default by National and
shall provide IRC with a right to terminate this Contract in accordance with this
Article, in addition to pursuing any other remedies which IRC may have under
this Contract or under law:
a. if in IRC's opinion National is improperly performing work or violating any
provision(s) of the Contract Documents;
b. if National neglects or refuses to correct defective work or replace
defective parts or equipment, as directed by the Engineer pursuant to an
inspection;
C. if in IRC's opinion National's work is being unnecessarily delayed and will
not be finished within the prescribed time;
d. if National assigns this Contract or any money accruing thereon or
approved thereon; or
e. if National abandons the work, is adjudged bankrupt, or if it makes a
general assignment for the benefit of it creditors, or if a trustee or
receiver is appointed for National or for any of his property.
(2) IRC shall, before terminating the Contract for any of the foregoing reasons,
notify National in writing of the grounds for termination and provide National
with ten (10) calendar days to cure the default to the reasonable satisfaction of
IRC.
(3) If National fails to correct or cure within the time provided in the preceding Sub -
Section (2), IRC may terminate this Contract by notifying National in writing.
40
Upon receiving such notification, National shall immediately cease all work
hereunder and shall forfeit any further right to possess or occupy the site or any
materials thereon; provided, however, that IRC may authorize National to
restore any work sites.
(4) National shall be liable for:
a. any new cost incurred by IRC in soliciting bids or proposals for and letting
a new contract; and
b. the difference between the cost of completing the new contract and the
cost of completing this Contract;
any court costs and attorney's fees associated with any lawsuit
undertaken by IRC to enforce its rights herein.
26.02 Termination for Convenience. IRC may at anytime and for any reason terminate
National's services and work for IRC's convenience. Upon receipt of notice of such termination
National shall, unless the notice directs otherwise, immediately discontinue the work and
immediately cease ordering of any materials, labor, equipment, facilities, or supplies in
connection with the performance of this Contract. Upon such termination National shall be
entitled to payment only as follows:
(1) the actual cost of the work completed in conformity with this Contract and the
specifications; plus,
(2) such other costs actually incurred by National as are permitted by the prime
contract and approved by IRC.
(3) National shall not be entitled to any other claim for compensation or damages
against IRC in the event of such termination.
26.03 Termination in Regards to F.S. 287.135. National certifies that it and those related
entities of respondent as defined by Florida law are not on the Scrutinized Companies that
Boycott Israel List, created pursuant to s. 215.4725 of the Florida Statutes, and are not engaged
in a boycott of Israel. In addition, if this agreement is for goods or services of one million dollars
or more, National certifies that it and those related entities of respondent as defined above by
Florida law are not on the Scrutinized Companies with Activities in Sudan List or the Scrutinized
Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to Section
215.473 of the Florida Statutes and are not engaged in business operations in Cuba or Syria.
IRC may terminate this Contract if National is found to have submitted a false certification as
provided under section 287.135(5), Florida Statutes, been placed on the Scrutinized Companies
with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum
Energy Sector List, or been engaged in business operations in Cuba or Syria, as defined by
section 287.135, Florida Statutes.
IRC may terminate this Contract if National, including all wholly owned subsidiaries, majority -
owned subsidiaries, and parent companies, that exist for the purpose of making profit is found
91
to have been placed on the Scrutinized Companies that Boycott Israel List or is engaged in a
boycott of Israel as set forth in Section 215.4725, Florida Statutes.
ARTICLE 27. INTENTIONALLY LEFT BLANK
ARTICLE 28. SUSPENSION
28.01 Suspension. IRC may order National to suspend, and to subsequently resume,
performance of all or of any part of the Services at any time by the issuance of a notice of
suspension to National and such notice shall not require acceptance by National for such
suspension to take effect. If IRC orders suspension of performance or provision of all or any
part of the Services, IRC shall: (1) complete the payments due up to the effective date of the
suspension notice and shall resume payments as of the effective date that the suspended
Services are ordered resumed, and (2) pay for any Out -of -Pocket Expenses incurred by National
as a result of such suspension. In the event that IRC requests that National resume the
provision of the suspended Services, National shall provide IRC with revised Milestones or
plans, including a revised Deployment Plan, if applicable, that take into account the suspension
and resumption of the suspended Services. Such revised Milestones or plans shall be subject to
IRC's review and approval. Once approved, National shall resume the suspended Services in
accordance with such revised Milestones or plans. National shall provide IRC with sufficient
supporting data for evaluation of the reasonableness of the expenses for item (2) above. The
provisions of this Section shall be National's sole remedy as a result of any suspension of the
Services, in whole or in part.
ARTICLE 29. INDEMNIFICATION
29.01 Indemnification. Each Party hereto shall indemnify and hold harmless the other Party,
including its respective officers and employees, from liabilities, damages, losses and costs,
including, but not limited to, reasonable attorney's fees, to the extent caused by the negligence,
recklessness, or intentional wrongful misconduct of the indemnifying party and persons
employed or utilized by the indemnifying party in the performance of the Services
ARTICLE 30. DAMAGES
30.01 Direct Damages.
(1) Each Party shall be liable to the other Party for any direct damages arising out of
or relating to its performance or failure to perform under this Agreement.
(2) Subject to Section 30.03, the liability of a Party to the other Party, whether based
on an action or claim in contract, equity, negligence, tort or otherwise, for any
single event, act or omission, shall not exceed the total contract fees as defined
in Exhibit 2.
[IN
30.02 Consequential Damages. Subject to Section 30.03, neither IRC nor National shall be
liable for, nor will the measure of damages include, any indirect, incidental, special or
consequential damages of the other Party arising out of or relating to its performance or failure
to perform under this Agreement.
30.03 Exclusions. The limitations on direct damages set forth in Section 30.01(2) shall not
apply to (1) the failure of IRC to make payments or the failure of National to issue refunds or
Performance Credits due under this Agreement. The limitations on indirect, incidental, special
or consequential damages set forth in Section 30.02 shall not apply to any indemnification
obligations of the Parties set forth in Article 29.
ARTICLE 31. INSURANCE
31.01 Insurance Coverage. National shall purchase and maintain, at its own expense, the
following types and amounts of insurance, primary and non-contributory with IRC's own
insurance, in form and companies satisfactory to IRC:
(1) Workers' Compensation insurance — As required by Florida Statutes, Chapter
440, Workers Compensation Insurance, for all employees of National, employed
at the site of work or in any way connected with the work, which is subject of the
Services.
The insurance required by this provision shall comply fully with the Florida
Workers' Compensation law and include Employers' Liability Insurance with
limits of not less than $500,000 per accident. Any associated or subsidiary
company involved in the service must be named in the Workers' Compensation
coverage.
(2) Liability Insurance — Commercial General Liability Insurance, including coverage
for operations, independent contractors, products -completed operations, broad
form property damage, collapse and underground, and personal injury on an
"occurrence" basis insuring National and any other interests, including but not
limited to any associated or subsidiary companies involved in the work.
Automobile Liability Insurance which shall insure claims for damages because of
bodily injury or death of any person or property damage arising out of the
ownership, maintenance or use of any motor vehicle used by National at the site
of the project or in any way connected with the Services
The Liability Insurance shall name IRC as an additional insured
43
The limit of liability shall be a combined single limit for bodily injury and property
damage of no less than $1,000,000 per occurrence. If insurance is provided with
a general aggregate, then the aggregate shall be in an amount of no less than
$1,000,000.
31.02 Insurance Conditions. The insurance coverages under Section 31.01 shall be primary,
and all non-contributing with respect to any other insurance or self-insurance which may be
maintained by IRC. All required insurance coverages shall include a waiver of subrogation and a
waiver of any insured -versus -insured exclusion regarding IRC. To the extent any coverage is
written on a claims -made basis, it shall have a retroactive date prior to the Effective Date and
shall allow for reporting of claims for at least one year after the Term.
31.03 Insurance Documentation. To the extent third -party insurance is obtained or
maintained pursuant to Section 31.01, National shall (1) within 30 days after the Effective Date
and (2) upon IRC's request, furnish to IRC certificates of insurance or other appropriate
documentation (including evidence of renewal of insurance) evidencing all coverages
referenced in Section 31.01 and, if and to the extent applicable, naming IRC as an additional
insured. Such certificates or other documentation shall include a provision whereby 30 days'
notice must be received by IRC prior to coverage cancellation or material alteration of the
coverage by either National or National Agents or the applicable insurer. Such cancellation or
material alteration shall not relieve National of its continuing obligation to maintain insurance
coverage in accordance with this Article. If any of the required insurance coverages contain
aggregate limits applying to other operations of National outside this Agreement, and such
limits are diminished by any incident, occurrence, claim, settlement or judgment against such
insurance, National shall take immediate steps to restore such aggregate limits or shall provide
other insurance protection for such aggregate limits.
31.04 Risk of Loss.
(1) Except as set forth in Section 31.04(2) National shall be responsible for the risk of
loss of, or damage to, any property of National, including the National
Equipment, unless such loss or damage was caused by the acts or omissions of
IRC or an IRC Agent and IRC shall be responsible for the risk of loss of, or damage
to, any property of IRC, including the AMR Meters, unless such loss or damage
was caused by the acts or omissions of National or a National Agent.
(2) National is responsible for the risk of loss of, or damage to, any property of IRC
at a Designated National Service Location, or otherwise in National's possession,
unless such loss or damage was caused by the acts or omissions of IRC or an IRC
Agent. IRC is responsible for the risk of loss of, or damage to, any property of
National at an IRC Service Location, unless such loss or damage was caused by
the acts or omissions of National or a National Agent.
(3) If National fails to comply with any of the provisions of this Article, National shall,
without regard to Section 29.01, at its own cost, defend, indemnify and hold
44
harmless IRC, its officers, agents, employees, assigns and successors in interest,
from and against any and all liability, damages, losses, claims, demands, actions,
causes of action, costs, including attorney's fees and expenses, or any of them,
resulting from the death of or injury to any person or damage to any property to
the extent that IRC would have been protected had National complied with all of
the provisions of this Article.
31.05 Reporting Claims. National shall report immediately to the IRC Project Manager and
confirm in writing any injury, loss, or damage incurred by National or its employees or Nationals
in connection with the Services, or its receipt of notice of any claim by a third -party, or of any
occurrence that might give rise to a claim.
ARTICLE 32. MISCELLANEOUS PROVISIONS
32.01 Assignment.
(1) Neither Party shall, without the prior written consent of the other Party, assign
this Agreement or any amounts payable pursuant to this Agreement, except that
IRC may assign this Agreement to an Affiliate or another entity or business unit
of IRC or pursuant to a reorganization or Change in Control of IRC without such
consent. Upon IRC's assignment of this Agreement to an Affiliate or another
entity or business unit of IRC or pursuant to a reorganization or Change in
Control of IRC, IRC shall be released from any obligation or liability under this
Agreement. The consent of a Party to any assignment of this Agreement shall
not constitute such Party's consent to further assignment. This Agreement shall
be binding on the Parties and their respective successors and permitted assigns.
Any assignment in contravention of this subsection shall be void.
(2) In the event that IRC divests an (a) entity, (b) business unit or (c) service territory
of IRC, including any group of AMR Meters, National shall, for the remainder of
the Term after such divestiture, at IRC's request, continue to provide the
Services through IRC under this Agreement for the benefit of such divested IRC
entity, business unit or service territory at the Charges then in effect.
32.02 Notices. Except as otherwise specified in this Agreement, all notices, requests,
consents, approvals, agreements, authorizations, acknowledgments, waivers and other
communications required or permitted under this Agreement shall be in writing and delivered
via certified mail or other priority mail verified by signature delivery to:
In the case of IRC
Indian River County Department of Utility Services
1801 271h St.
45
Vero Beach, FL 32960
Attention: Vincent Burke, Director
In the case of National:
163 Schuyler Avenue
P.O Box 491
Kearny, New Jersey
Attention: William Castle
Either Party may change its address or contact for notification purposes by giving the other
Party 10 days' notice of the new address or facsimile number and the date upon which it will
become effective.
32.03 Counterparts. This Agreement may be executed in any number of counterparts, each
of which will be deemed an original, but all of which taken together shall constitute one single
agreement between the Parties.
32.04 Relationship. The Parties intend to create an independent National relationship, and
nothing contained in this Agreement shall be construed to make either IRC or National
partners, joint venturers, principals, agents or employees of the other. No officer, director,
employee, agent, Affiliate or subcontractor retained by National to perform work on IRC's
behalf under this Agreement shall be deemed to be an employee, agent or subcontractor of IRC
Neither Party shall have any right, power or authority, express or implied, to bind the other.
32.05 Consents, Approvals and Requests. Except as specifically set forth in this Agreement,
all consents and approvals to be given by either Party under this Agreement shall not be
unreasonably withheld or delayed and each Party shall make only reasonable requests under
this Agreement.
32.06 Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, then the remaining provisions of this Agreement, if capable of
substantial performance, shall remain in full force and effect.
32.07 Waivers. No delay or omission by either Party to exercise any right or power it has
under this Agreement shall impair or be construed as a waiver of such right or power. A waiver
by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding
breach or any other covenant. All waivers must be signed by the Party waiving its rights.
32.08 Publicity. National shall (1) submit to IRC all advertising, written sales promotions,
press releases and other publicity matters relating to this Agreement in which the IRC's name or
mark is mentioned or which contains language from which the connection of said name or mark
46
may be inferred or implied and (2) not publish or use such advertising, sales promotions, press
releases or publicity matters without IRC's consent.
32.09 Entire Agreement. This Agreement and the Exhibits and Appendices to this Agreement
represent the entire agreement between the Parties with respect to its subject matter, and
there are no other representations, understandings or agreements between the Parties relative
to such subject matter.
32.10 Amendments. No amendment to, or change, waiver or discharge of, any provision of
this Agreement shall be valid unless in writing and signed by an authorized representative of
each of the Parties.
32.11 Survival. Any provision of this Agreement that contemplates performance or
observance subsequent to the termination or expiration of this Agreement or during the
Termination Assistance Period, shall survive the termination or expiration of this Agreement.
32.12 Third -Party Beneficiaries. Each Party intends that this Agreement shall not benefit, or
create any right or cause of action in or on behalf of, any person or entity other than the
Parties.
32.13 Governing Law. This Agreement and the rights and obligations of the Parties under this
Agreement shall be governed by and construed in accordance with the laws of the State of
Florida, without giving effect to the principles thereof relating to the conflicts of laws.
32.14 Sole and Exclusive Venue. Each Party irrevocably agrees that any legal action, suit or
proceeding brought by it in any way arising out of this Agreement must be brought solely and
exclusively in the United States District Court for the Southern District of Florida or in the state
courts of the State of Florida and irrevocably accepts and submits to the sole and exclusive
jurisdiction of each of the aforesaid courts in personam, generally and unconditionally with
respect to any action, suit or proceeding brought by it or against it by the other Party; provided,
however, that this Section shall not prevent a Party against whom any legal action, suit or
proceeding is brought by the other Party in the state courts of the State of Florida from seeking
to remove such legal action, suit or proceeding, pursuant to applicable Federal law, to the
district court of the United States for the district and division embracing the place where the
action is pending in the state courts of the State of Florida, and in the event an action is so
removed each Party irrevocably accepts and submits to the jurisdiction of the aforesaid district
court. Each Party hereto further irrevocably consents to the service of process from any of the
aforesaid courts by mailing copies thereof by registered or certified mail, postage prepaid, to
such Party at its address designated pursuant to this Agreement, with such service of process to
become effective 30 days after such
mailing.
47
32.15 Covenant of Further Assurances. IRC and National covenant and agree that,
subsequent to the execution and delivery of this Agreement and, without any additional
consideration, each of IRC and National shall execute and deliver any further legal instruments
and perform any acts that are or may become necessary to effectuate the purposes of this
Agreement.
32.16 Negotiated Terms. The Parties agree that the terms and conditions of this Agreement
are the result of negotiations between the Parties and that this Agreement shall not be
construed in favor of or against any Party by reason of the extent to which any Party or its
professional advisors participated in the preparation of this Agreement.
32.17 Conflict of Interest.
(1) National affirms that, to the best of its knowledge, there is no actual or potential
conflict of interest between National, its employees or their families, National
agents, or business interest, and IRC. During the Term, neither Party, without
the consent of the other Party, shall hire or offer to hire any individual while that
individual is an employee of the other Party or employee's immediate family
member. National shall not pay any salaries, commissions, fees or make any
payments or rebates to any employee of IRC or to any designee of such
employee, or favor any employee of IRC or any designee of such employee, with
gifts or entertainment of significant cost or value or with services or goods sold
at less than full market value. National agrees that its obligation to IRC under
this Section shall also be binding upon National Agents. National further agrees
to insert the provisions of this Section in each contract with a National Agent.
(2) During the Term and for two years after the expiration or termination of this
Agreement, neither National nor the National Project Manager or a member of
the Project Staff shall, without IRC's prior consent, undertake any engagement
(a) to act as an expert for a third -party in any regulatory proceeding, litigation or
transaction in which IRC or any of its Affiliates is, or is reasonably expected to
become, adverse to the third -party or (b) for any third -party which is, or is
reasonably expected to become, adverse to IRC in a proceeding, litigation or
transaction related to this Agreement.
National shall notify IRC within 30 days of any violation of this Section and promptly use its best
efforts to minimize or eliminate any adverse impact on IRC.
OPP
IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in duplicate. One
counterpart each has been delivered to OWNER and CONTRACTOR. All portions of the Contract
Documents have been signed or identified by OWNER and CONTRACTOR or on their behalf.
This Agreement will be effective on , 20_ (the date the Agreement is approved
by the Indian River County Board of County Commissioners, which is the Effective Date of the
Agreement).
OWNER:
INDIAN RIVER COUNTY
By:
CONTRACTOR:
M
Bob Solari, Chairman (Contractor)
By: (CORPORATE SEAL)
Jason E. Brown, County Administrator
Attest
APPROVED AS TO FORM AND LEGAL
SUFFICIENCY:
Bv:
Dylan Reingold, County Attorney
Jeffrey R. Smith, Clerk of Court and Comptroller
Attest:
Deputy Clerk
(SEAL)
Designated Representative:
Name:
Title:
Address:
Phone
Email
Address for giving notices:
License No.
(Where applicable)
Agent for service of process:
Designated Representative:
Name:
Title:
Address:
Phone:
Email:
(If CONTRACTOR is a corporation or a
partnership, attach evidence of authority to sign.)
49
EXHIBIT 1-SERVICES
THIS DEPLOYMENT SERVICES STATEMENT OF WORK is subject to the terms and provisions, and is
made a part of that certain Agreement for Meter Deployment Services between Indian River
County and National Meter Services, Inc. dated , 2019 (the "Contract") by and
between Indian River County ("IRC") and National Metering Services, Inc. ("National"). Capitalized
terms used herein and not otherwise defined shall have the meaning ascribed to them in the
Contract.
This Exhibit 1 - Services, describes activities, roles and responsibilities of the Parties associated
with the planning, design, deployment, implementation, and testing of the AMR System within
Indian River County service territory and MDM Portal (collectively, the "AMR Solution").
1. PROJECT OVERVIEW
The Parties desire to and will deploy the AMR Solution as an end -to -end functional system
comprised of AMR Water Meters and National's MDM Portal. The Parties will deploy the AMR
Solution in accordance with the schedule as documented in Deployment Schedule, and as may
be updated, in the Deployment Plan. National will collaborate with Indian River County
throughout deployment of the AMR Solution as outlined in this Deployment Services SOW. The
Parties will continue to work together in good faith to further define specific Deliverables and
timelines.
National will deploy approximately 34,000 meters across the service territory. IRC will purchase
all appropriate AMR Meters, check valves, lids, meter boxes, and risers, and National will provide
to IRC the Services as described in this Deployment Services SOW.
This Deployment Services SOW sets forth in detail the specific tasks and the Parties' respective
roles and responsibilities for those tasks.
2. PROJECT RESOURCES
National's Project organization is described in the chart below.
50
..,-
rProject��JCoordinator
Executive
Management
Office Manager Warehouse Manager Department
ProjectSupervisor i Customer Service Unit
i
�+ f
Meter Installation
Crew
Lead Technician
(commercial &
industrial)
Group Leader
Meter installation
Crew(Rest dental)
Data Entry Unit
MeterTesting Unit
Executive Management — Includes the President, CEO, CFO, CTO, Vice President, Business
Development Director. The Executive Management oversees all operations and administrative
functions of NMS. It ensures that all projects run smoothly from both field operations and
administrative perspectives.
Project Coordinator (Key National Position) —The Project Coordinator works with the Office and
Warehouse Managers to insure that tasks are assigned to office staff, monitors customer service
unit's interaction with customers, verifying work order information as entered by data processing
unit, supervising work order preparation & customer notices, scheduling of mailings, tracking
progress of project by area or route, scheduling follow-up mailings, time record keeping, payroll
certification, invoice preparation, execution of required AIA forms. All Project Coordinators
report directly to Executive Management regarding the status of a program, inventory, customer
service, field reports etc. Project Coordinator is an offsite resource.
Richard Verdiramo
RVerdiramo@nmsnj.com
201-628-2845
Office Manager— Manages the Customer Service and Data Entry Units. Ensures that both of these
functions are up to date with all customer and client facing aspects of all projects.
51
Warehouse Manager — Oversees warehouse operations, manages inventory of both new and old
meter stock in Kearny location.
IT Department — Manage and support NMS' proprietary MDM software. Upload and maintain all
clients' customer data. Process photos and append to premises records across all projects.
Project Supervisor (Key National Position) — The Project Supervisor monitors the activity of the
field personnel and interacts with the Utility staff to schedule deliveries of all ODP materials the
Utility as well as the return of old meter and materials back to the Utility. The Project Supervisor
monitors inventory and is available to respond to field emergencies when needed. The Project
Supervisor conducts field surveys of commercial and industrial meters and all OSHA vaults. The
Project Supervisor assists the Lead Technician and augments in the field when necessary. The
Project Supervisor reports directly to the Project Coordinator. Project Supervisor is an offsite
resource.
Kelly Dever
kdever@nmsnj.com
407-461-1527
Customer Service Unit — Includes all CSRs whose task it is to make and receive customer
telephone and mail contacts. The CSRs make all appointments with customers as needed across
all projects.
Data Entry Clerk/Customer Service Representative — Preparing customer notices & work orders
from electronic data provided by the Utility, processing completed work orders, processing
incomplete work orders by identifying the problem or violation and entering the data into the
new customer database, processing meter certification test results and entering results into a
comprehensive report, entering test results into the customer database.
Meter Testing Unit — Conducts all meter testing on new and old meter stock as applicable
depending on project parameters.
Lead Technician (Key National Position) — The Lead Technician is responsible for all interaction
with the utility, ordering, cataloging and distribution of inventory materials, assigning and
recovering work to & from installers daily. Progress meetings, customer concerns or callbacks,
distribution of appointments and schedules, forwarding completed work orders to the data
processing center, logging accounts that could not be installed (locked gates and dogs), keeping
daily time records of installers hours. The Lead Technician reports directly to the Project
Supervisor with daily reports and a weekly summary of installations, and project progress. Lead
Technician is an onsite resource.
James Ratcliff
jatcliff@nmsnj.com
828-335-7664
52
Group Leader —The Group Leader, is responsible for collection of old meters for testing, verifying
exit readings of old meters, re -supply of equipment to installers in the field, provide assistance
on difficult installations, survey large meter accounts, freeze service lines when shut down is not
possible using existing valves, verify conditions when a unit cannot be installed as reported,
locate and operate curb valves for shut down, cover appointments pending if an installer is
delayed or has other issues.
Meter Installation Technician — Our Installation Technicians have several years of experience,
installing water meters. National has a very low employee turnover rate. Many of our Installers
have been with the company over 5 years. The responsibilities of our Meter Installation
Technicians are: providing meter installation service by appointment and by solicitation, logging
pertinent data on installation order, final reading of meter and serial number confirmation,
tagging removed meter with an address verification tag, testing of meter installation with
manufacturers test equipment (IRC supplied), checking for leaks after installation is complete,
verifying service has been restored, updating account records if an account is missing or
indicating why the unit cannot be installed as per request.
3. PROJECT MANAGEMENT
3.1 Description
This Section describes the work to be performed to plan and manage the project including the
meter installation, customer communications, and MDM portal configuration.
National and IRC will work together to initiate and complete the development of the Project Plan
and Deployment Schedule as a part of this Deployment Services SOW. The mutually signed
Deployment Plan shall be deemed incorporated into this Deployment Services SOW and made a
part of it. Only mutually agreed on changes to the Deployment Plan shall be effective. Changes
will be documented and confirmed during Project Management meeting.
The Project is expected to last approximately two (2) years and includes the installation of
approximately 39,000 Meters, all customer communications necessary for planning installations
and addressing customer concerns, configuration of the MDM portal, and data support.
3.2 Project Management Roles and Responsibilities Matrix
Below is the Project Management roles and responsibilities matrix.
The following project roles and responsibilities descriptions establish base level requirements.
National will participate in joint planning sessions with IRC to further refine roles and
responsibilities as part of detailed planning. National will comply with all IRC policies and
procedures. IRC reserves the right to review and approve all final project roles and
responsibilities, designs and project plans.
53
Activity
3.2.1 Initiate Project
3.2.2 Project Resources
3.2.3 MDM Plan
3.2.4 Communication Plan
3.2.5 Deployment Plan
Tasks
National
• Provide dedicated project
coordinator for total
project accountability
• Review Contract
• Assign resources to Project
• Uncover initial
assumptions and risk
• Execute an Internal Kick-
off Meeting
• Initiate Project with IRC's
Project Manager
• Acquire facilities for
warehousing and local
management of project
• Assign team members
• Provide IRC with team
member names, contact
information and resumes
• Provide IRC with
information on vehicles to
be used on the project
• Document roles and
responsibilities
• Note any resource
constraints
• Develop the MDM plan
including data integration
requirements, training and
support.
• Import the customer data
into the MDM
• Develop Communication
plan including scripts,
answers to FAQs, follow-
up procedures
• Develop the Deployment
Plan that will detail
installation activities for
AMR Meters
• The Deployment Plan will
include detailed
deployment tasks, roles
and responsibilities, route
planning, safety
requirements, warehouse
operations, customer
contact &
communications strategy,
training, work procedures,
customer claims
management, deployment
plans / strategy /
sequence and blackout
dates, KPIs,
communications / status
IRC
• Assign IRC Project
Manager for single point of
contact or provide clear
path to appropriate parties
• Work jointly with National
to schedule the Kick-off
meeting
• Work jointly with National
in initiating the Project
• Assign IRC Project team
members and key Subject
Matter Experts
• Provide project contact list
• Document roles and
responsibilities of IRC
project team
• Provide Customer
/Account Information File
• Review and approve MDM
Plan
• Review and Approve
Communication Plan
• Provide route information
• Provide blackout dates
including holidays
• Approve the Deployment
Plan
National
Deliverables
• N/A
• Project Org Chart
• Project Contact List
• Deployment Plan
54
Activity
Tasks
National
National
IRC
Deliverables
reporting, and quality
assurance plan
3.2.6 Safety and Training
• Develop an Installation
• Review, comment on and
Plan
Training Plan including
approve National's
required technical and
training plan
safety training for
installers
• OSHA 10 certification is
required for all National
technicians.
3.2.7 Materials and Logistics
• Develop the material
• Review and approve
Plan
forecasts, schedules and
Materials and Logistics
inventory levels required
plans
to support deployment
3.2.8 Project Schedule
• Jointly develop Project
• Participate in developing
baseline schedule and
Project baseline schedule
milestones
and milestones
• Maintain Project Schedule
• Approve Project baseline
as reflected in MDM,
schedule
incorporate approved
• Review updated schedules
changes, and produce
to understand impact of
updated schedule versions
approved changes
as necessary
• Reflect in Deployment
Plan as necessary
3.2.9 Project Status
• Jointly participate in bi-
• Lead bi-weekly project
weekly project status
status meetings
meetings
• Monitor MDM for project
• Immediately inform IRC
status
PM of safety and customer
problems
3.2.10 Risk Management
• Jointly develop the Risk
• Jointly develop the Risk
Plan
Monitoring and Mitigation
Monitoring and Mitigation
Plans
Plans
• Assist IRC in developing
• Implement risk
risk mitigations strategies
mitigations when required
• Implement risk
mitigations when required
• Perform risk
identification, tracking,
and mitigation throughout
Project as required
3.2.11 Project Management
• Manage and supervise all
• Notify National of any
National resources
project personnel issues
• Address any issues
or conduct concerns
identified by IRC as severe
4. METER INSTALLATION
4.1 Description
This Section describes the work to be performed to field install the AMR Meters, check valves,
lids and other equipment.
55
National will install all meters and check valves in IRC service territory except those designated
as non -accessible or RTO. National considers meters temporarily non -accessible if the meter pit
is located behind a locked gate, near a loose animal, has a car parked over pit, under concrete or
asphalt, or is inaccessible due to overgrowth of tree roots in box. Multiple attempts will be made
to access meter as described in the accessible meter and non -accessible meter definitions in
Exhibit 5. National will contact the customer by phone and leave door hangers in all instances
advising the customer of the situation.
4.2 Meter Installation Roles and Responsibilities Matrix
Below is the Meter Installation roles and responsibilities matrix.
The following project roles and responsibilities descriptions establish base level requirements.
National will participate in joint planning sessions with IRC to further refine roles and
responsibilities as part of project kickoff and detailed planning. National will comply with all IRC
policies and procedures. IRC reserves the right to review and approve all final project roles and
responsibilities, designs and project plans.
Activity
Tasks
National
National
IRC
Deliverables
4.2.1 Material storage
• Take delivery of material
• Rectify shipment
• N/A
shipments
irregularities
• Inspect shipments provide
• Process RMAs and
list of all inventory
defective materials
received, size, quantity,
returns
serial numbers etc., to be
• Order all materials with
able to verify that every
appropriate lead times to
meter purchased ends up
ensure delivery of
in the ground and
materials according to
attached to a billing
Plan
account (or is leftover at
the end of the project)
• Identify shipment
irregularities
• Identify defective
materials and notify IRC
PM
• Provide all required
documentation and
electronic files associated
with shipments deliveries
• Provide warehousing and
inventory management
for Meters
• Report RMA and
warrantee to IRC, store
materials for IRC to
process
• Track inventory
4.2.2 Job Preparation
• Areas of operation are
• Provide route information
• N/A
issued each morning when
update
56
Activity
4.2.3 Meter Installation
Tasks
National
the installers are
preparing for work.
• Routes are followed per
the owners request so as
not to interfere with
reading routes or reading
operations.
• The Lead Tech will issue
the routes as confirmed
by the office according to
the preapproved
schedule.
• Any and all special
requests or revisits for
recalls, complaints are
issued with the work in
the morning.
• Special requests are also
addressed for IRC Staff's
immediate needs —IE high
Bill complaint or non -
reading meter or unit etc.
• Safety procedures are
reviewed
• Inventory is validated for
workday installations
• Inventory is visually
inspected for defects or
damages
• Coordinate with IRC staff
for any location assistance
prior to entering an area
for installation.
• Installation technician
arrives on customer site
for meter replacement
• Technician examines
existing condition if meter
setting and takes pre -
installation digital photo
• If any evidence of Tamper,
technician take picture
and notifies IRC PM
• If meter is not accessible,
Technician takes a picture
and notifies IRC PM of
Non -Accessible meter
• Technician clears debris
(sand, dirt) from meter
box and/or de -waters
meter pit as required
• Technician takes photo of
meter reading
• Technical shuts main valve
IRC
• Review National schedule
to assure no conflicts with
IRC Operations
• Support field activities
• Provide shut off assistance
if National is unable to
shut off service prior to
installation
• Provide location
assistance. Assess failure
and determine action
National
Deliverables
57
Activity Tasks National
National IRC Deliverables
• Technician replaces
existing meter with a new
meter and radio unit
• Replace meter valves,
check valves and curb
stops as necessary
• Technician takes photo of
new meter install
• Technician restores water
and checks for leak and
verifies that there is a
watertight seal at the
meter fittings
• Technician mounts pit
receptacle to meter pit lid
• Technician programs MIU
with Supplier's authorized
equipment as supplied by
IRC and enters the data
into the electric format
and paper work order
• Technician cleans work
area and takes the post
installation digital photo
showing mounted
antennae and secure
meter box lid
• Technician completes
meter change work order
indicating the following:
customer account
number, read sequence,
install date, meter size &
type, new meter serial
number, new MIU serial
number, reading on old
meter. Technician purges
the water lines from the
outside hose spigot (if
available).
• Technician informs the
customer of the successful
installation. In the event
the customer was not
home during the
installation a Flush the
Water line notice will be
left at the property.
• National Staff will be
equipped with the meter
reading unit for the
selected products.
• National will acquire the
appropriate units for
technicians to test read
m
Activity
Tasks
National
National
IRC
Deliverables
the RF unit after
installation.
• A photo of the positive
reading will be taken and
appended to the account
information with the
installation sequenced
photos
• Update MDM with
installation information,
photos and notes within
one workday
4.2.4 Post Installation
• Address any leaks
• Resolve Non -Accessible
• N/A
reported as a result of
meters after National has
meter replacement within
satisfied the attempts as
one hour from time the
described in the accessible
call is received.
meter and non -accessible
• National Technicians will
meter definitions in
remove all refuse created
Exhibit 5
by the installation process
4.2.5 Non-Accessible/RTO
• National will inform IRC of
• IRC to assist National in
• N/A
meters
RTO accounts per IRC
gaining access to meters
requirements and Non-
that are located inside
accessible meter
locked fences,
definition
inaccessible, etc.
• Address non -accessible
accounts
5. CUSTOMER COMMUNICATIONS
5.1 Description
This Section describes the work to be performed to inform customers of installations, address
questions and route concerns to appropriate IRC parties.
National will notify all customers of planned installations, schedule installations with businesses,
and difficult to access areas, handle customer calls, and provide 24/7 customer care. Prior to
beginning installation operations, National will direct mail customers in the selected area of
operation at least 1 week prior and no more than 3 weeks prior to commencement of installation
services. The mailer will be approved by the IRC prior to being issued, and will detail the
installation service, what to expect, and advise customers who may need an appointment to give
access to their property or meter with toll free phone number and National internet page where
they can schedule an appointment. This mailer must clearly explain that any questions or
concerns regarding the installation shall be directed to National at (phone or e-mail) and not IRC.
5.2 Customer Communications Roles and Responsibilities Matrix
Below is the Customer Communication roles and responsibilities matrix.
59
The following project roles and responsibilities descriptions establish base level requirements.
National will participate in joint planning sessions with IRC to further refine roles and
responsibilities as part of project kickoff and detailed planning. National will comply with all IRC
policies and procedures. IRC reserves the right to review and approve all final project roles and
responsibilities, designs and project plans.
Activity
Tasks
National
National
IRC
Deliverables
5.2.1 Public Information
• Prepare door hangers.
• Inform customers of
• Postcard
Campaign
See Exhibit 4
project
• Door hangers
• Mail notices as National
• Provide customer
moves into new areas (at
information at least 5
least one week and no
weeks before NMS is
more than 3 weeks prior)
scheduled to be in an area
See Exhibit 3
• Review and approve
• NMS website will show
mailing before it is
examples of uniforms,
released.
vehicles etc.
• Review and approve door
hangers
5.2.2 Customer Contact
• Prepare CSR project fact
• Review and approve CSR
• CSR Fact Sheet and scripts
sheet and scripts
fact sheet and scripts
• Provide 50 inbound phone
lines to handle customer
calls
• Provide 24/7 call center
operations
• Log all customer calls in
MDM
• Provide E-appointment's
function to customers.
• Add notes for all customer
interaction in MDM
5.2.3 Installation
• Provide scheduling of
• Review Installation
Scheduling
installations to customers
Schedule
as needed through e-
• Work with National to
appointment or call center
resolve scheduling
• Send reminder text/phone
problems
call day before
appointment
• Provide IRC with list of
scheduling problems
6. MDM PORTAL
6.1 Description
This Section describes the work to be performed to provide IRC access to National's MDM Portal.
With the customer account information provided by IRC, National will create a new customer
database, and generate workorders. Customer data is cleansed and processed into National's
custom SQL Based Data Management Program — Basic Accounting Billing utility (BABU). Once
integrated into BABU, National IT staff create workorders, mailing list, customer notices and the
We
meter installation database. National also utilizes the power of the BABU System to track
inventory by size, type, application, new meter test data and stock quantiles. This data is sent to
National by the meter manufacture (Master Meter) once meters are shipped from the factory.
National creates a format where the information is printed in both analog characters and in
barcode on the work order. All new meter information is scanned into the database for the
appropriate account. Data is posted "live" as entered into the Customer Portal. Once in the
Customer Portal it can be reviewed individually as needed by IRC or downloaded in batches into
IRC's billing program software.
National's IT department will provide Help Desk services to IRC staff with regard to the
functionality and accessibility to the MDM Portal and the customer data and installation data
contained therein.
6.2 MDM Portal Roles and Responsibilities Matrix
Below is the MDM Portal roles and responsibilities matrix.
The following project roles and responsibilities descriptions establish base level requirements.
National will participate in joint planning sessions with IRC to further refine roles and
responsibilities as part of project kickoff and detailed planning. National will comply with all IRC
policies and procedures. IRC reserves the right to review and approve all final project roles and
responsibilities, designs and project plans.
Activity
Tasks
National
National
IRC
Deliverables
6.2.1 Installation
• Create usernames and
• Provide information for
passwords for IRC staff
MDM users
• Create MDM Portal using
• Provide customer account
IRC customer data
and meter data
• Ensure accurate import of
• Notify NMS of data
all IRC provided data
inaccuracies
• Ensure accuracy of all new
meter installation
information and customer
interaction notes
• Correct information
inaccuracies
6.2.2 Functionality
• Track inventory by size,
• N/A
• MDM
type, application, test
data, and stock quantities.
• For each meter location
the MDM will capture:
o Address
o GPS coordinates at
meter
o Install date
o Meter size
o Previous meter reading
on meter to be
removed
61
Activity Tasks National
National IRC Deliverables
• The MDM will allow IRC
to:
o Monitor daily
productivity
o Review installation
photos
o Confirm out reads
o Confirm site conditions
o Confirm unit was
reading at time of
installation
o See appointment
schedule
o See RTO or reported
issues detail
o See and be informed of
Tamper evidence
o See and monitor all
notes around customer
interaction
o Review open routes or
remaining to do in
routes for closure
o Pull quantities installed
by size/route or
however needed
o Monitor installation
rates by
day/week/month
o Forecast material
purchases
o Confirm invoice
quantities
• Email electronic copies of
database to IRC daily
• Provide import / export
files in format compatible
with IRC's Harris Advanced
Utility Systems, CIS Infinity
v 3.1.23b
• Maintain compatibility for
Internet Explorer and
Chrome browsers
6.2.3 Training and Support • Provide onsite training for • Identify IRC users
all IRC users
• Provide users manual for
IRC staff
• Provide help desk support
during business hours
(8am — 5pm EST M-F)
• Promptly (within 24
hours) address any data
upload or accuracy issues
identified
62
Activity
Tasks
National
Deliverables
National
IRC
6.2.4 Disaster recovery
• NMS utilizes the services
• N/A
• Disaster Recovery Plan
of Iron Mountain. All of
NMS's servers are co -
located at their facility.
• All data and backups are
maintained by Iron
Mountain
• NMS will restore systems
and data, and return to
operation within 24 hours
of a Disaster Event
7. SOFTWARE, TOOLS, AND METHODOLOGIES
The following are the software, tools, and methodologies National will employ during the
delivery of the Services:
• MDM -Basic Accounting Billing utility (BABU)
• EAppointment
• NMSNJ.com
8. DEPLOYMENT SCHEDULE
This Section sets forth certain milestone dates and other information with respect to National's
deployment of the AMR Solution in accordance with the terms of the Contract.
Activity
Milestone Date
Project Start Date
County Notice to Proceed (NTP)
IRC send to NMS customer list and information
NTP +1 day
IRC order first 6000 meters, associated parts and pieces
NTP +1 day
Kickoff mtg —establish detail schedule
NTP +7 days
NMS reviews data
NTP +30 days
MDM Training
NTP +55 days
MDM Activated
NTP +45 days
Draft Deployment Plan Delivered
NTP +45 days
Preconstruction mtg
NTP +50 days
First delivery of 3000 Meters
NTP +70 days
Commence Meter deployment
NTP +77 days
Second delivery of 3000 Meters
NTP +100 days
63
EXHIBIT 2 - CHARGES AND PERFORMANCE
SERVICE PRICING
Following is a list of possible services to be provided under this contract. All quantities are
estimates. Invoices submitted for payment will be accompanied by a spreadsheet of the
completed work covered by such invoice.
Item Description
Estimated
Quantity
Unit Price
Estimated Price
Install 5/8 x 3/4 inch meter with check valve
33,500
$58.00
$1,943,000.00
Install 1" meter with check valve
860
$65.00
$55,900.00
Install 1 1/2 " meter with check valve
0
$145.00
$0.00
Install 2" meter with check valve
270
$160.00
$43,200.00
Install 5/8 x 3/4 inch meter
50
$26.00
$1,300.00
Install 1" meter
40
$26.00
$1,040.00
Install 1 1/2 " meter
0
$88.00
$0.00
Install 2" meter
0
$105.00
$0.00
Install 3" meter
7
$325.00
$2,275.00
Install 4" meter
15
$400.00
$6,000.00
Install 6" meter
1
$550.00
$550.00
Install 8" meter
1
$1,350.00
$1,350.00
Replace 4G register only****
2,000
$19.00
$38,000.00
Replace residential check valve*
2,000
$33.00
$66,000.00
Replace meter pit lid - 10" x 15" x 2"
100
$1.00
$100.00
Replace meter pit lid - 11" x 18" x 2"
20,000
$1.00
$20,000.00
Replace meter pit lid - 13" x 24" x 2"
50
$5.00
$250.00
Replace meter pit lid - 17" x 30" x 2"
150
$15.00
$2,250.00
Replace meter pit lid - 30" x 48" Bolt down
2
$42.00
$84.00
Replace box 10" x 15"
90
$10.00
$900.00
Replace box 11" x 18"
20,000
$12.00
$240,000.00
Replace box 13" x 24"
50
$18.00
$900.00
Replace box 17" x 30"
150
$18.00
$2,700.00
Install 6" riser (resetter) with new meter**
1,000
$7.50
$7,500.00
Install 12" riser (resetter) with new meter**
1,000
$10.00
$10,000.00
GPS coordinates of each meter box - includes
data capture, equipment, labor,
transportation and digital photo
36,744
$9.70
$356,416.80
MDM Software - Initial upload
36,744
$3.25
$119,418.00
64
Subtotal
$2,919,133.80
Meter Testing
5/8" x W
33,550
$2.50
$83,875.00
1"
750
$4.50
$3,375.00
1 %"
150
$17.50
$2,625.00
2"
270
$17.50
$4,725.00
3"
7
$275.00
$1,925.00
4"
15
$275.00
$4,125.00
6"
1
$275.00
$275.00
8"
1
$275.00
$275.00
Subtotal
$101,200.00
Meter Recycling
5/8" x W
33,550
$(3.50)
$(117,425.00)
1"
750
$(5.50)
$(4,125.00)
1 %"
150
$(12.50)
$(1,875.00)
2"
270
$(12.50)
$(3,375.00)
3"
7
$(50.00)
$(350.00)
4"
15
$(60.00)
$(900.00)
6"
1
$(70.00)
$(70.00)
8"
1
$(80.00)
$(80.00)
Credit for Recycling
Subtotal
$(128,200.00)
Optional Additional Serivices
Meter Seals (NMS Seals, sequentially
numbered)
$1.27
$0.00
Meter Seals (IRC Seal, sequential numbering)
$1.62
$0.00
1/8" thick, 48" Bypass Cable Seals
(sequentially numbered)
$15.42
$0.00
Downsize 1" meter to 5/8", includes parts &
labor
710
$60.00
$42,600.00
Downsize 2" meter to 1", includes parts &
labor
250
$350.00
$87,500.00
Downsize 2" meter to 5/8", includes parts &
labor
50
$350.00
$17,500.00
Downsize 1 %2" meter to 5/8", includes parts
& labor
75
$350.00
$26,250.00
65
Downsize 1 %" meter to 1", includes parts &
labor
50
200.00
$10,000.00
Downsize 3" meter to 2", includes parts &
labor
0
$620.00
$0.00
Downsize 4" meter to 2", includes parts &
labor
0
$725.00
$0.00
Upsize 1 %" meter to 2", plus meter install
25
$300.00
$7,500.00
MDM Annual Hosting (Starts 6 months after
Project Completion)
0
$2.00
$0.00
MDM Data Modification per Unit
0
$1.50
$0.00
Subtotal
$191,350.00
Total
$3,083,483.80
WARRANTEE
All installation work performed under this contract will be guaranteed for a period of one year
from the date of installation for defects in workmanship and will be repaired at the expense of
National. Leaks reported within thirty days from date of installation, five feet before or five
feet after the meter will be repaired by the contractor at no additional expense to the County
or its customers within four hours after notification. Leaks reported after 30 days will be
repaired at no additional expense to the County or its customers if determined to be the result
of defect in workmanship within six hours after notification. Warranty is limited to National as
stated. National is not responsible for failed or non -working units. Units installed that do not
show any consumption — stuck or zero read will be replaced at no additional charge to the
utility and the meter returned to manufacturer for warranty. Meters tested and read with
photo proof unit was transmitting at time of install are covered by manufacturer warranty and
not National. Additional installation/labor fees may apply.
PERFORMANCE CRITERA
Performance Criteria
Measurement
Corrective action
Meter Installation
Number of installations that must be
>_4 in a month — National must
Failure Rate
revisited by National crews after
provide quality assurance
installation
inspections by Project Supervisor of
each installation for three weeks or
until rate improves
Attendance to
Project Coordinator and/or Project
Escalation to executive leadership
Project Management
Supervisor or alternate attend all
with leadership attendance in
mtgs
scheduled PM calls with IRC PM
subsequent meetings
99
Deployment Plan
Completion of meter installations
Execution of Liquidated Damage as
Completion
within the Deployment Plan within 24
stated in Section 20.06
months of NTP
Citizen Complaints
Complaints relating to NMS field
>_2 validated complaints in a week
crew behavior/conduct and/or
or more that 6 in 4 consecutive
workmanship Complaints to be
weeks - IRC has the right to have
discussed/validated in PM mtg and
National replace resources
agreed by both parties
67
EXHIBIT 3 -CUSTOMER NOTIFICATION POSTCARD
National Metering Services, Inc.
P.O. BOX 491
Kearny, NJ 07032
NOTICE
REFS 10000
to m FIRST-CLASS MAIL
U.S.POSTAGE
ppPAIDrt�T
NEWMARKN . 7203
Acct N : 0019394
JOHN SMITH
200 Main Street
Sands Point NY 11050
(Your Town) - Regarding Your Water Meter
National Metering Services, Inc.
Contractors for ( Your Town )
The "Your Town', has contracted National Metering Services, Inc. to replace
water meters throughout the City beginning September 2018. The new meters
being installed will be read automatically using radio transmitters attached to the
water meters. All water meters are located outside of your home or place of
business in a meter box by the curb or in an easement. Access to home or place
of business will not be required. The installation process takes about 20 min to
complete during which water service interruption will occur. Customers are
asked to secure loose pots on property and make sure the meter area is clear for
the safety of our meter installers. All installers are required to have I.D.
displayed at all times and to be in uniform. Additionally, installers have had
background checks completed by the State Police prior to employment. If no one
is home or your place of business is closed, you will receive a notice on your
door stating that your meter was upgraded.
Thank you for your cooperation
For additional information, please call:
1.888-448-0009
Or visit us at: www.nmsni.com
EXHIBIT 4 - CUSTOMER NOTIFICATION DOOR HANGERS
ATTENTION
The Contractor rThe W,,tjr or
National tileterin9JServices, Inc.
rcplaeed your water meter today
e/ 2 Q
The water m— a— y be
discolored.
This is a result of the
water being turned off
at the main.
Please flush your water
system by turning on your
faucets and letting the
water run for 1 minute
or until it runs clear.
If•pou 11"we anv questions or require
fi,riher assistance please call
1-888-448-0009
Office Hours:
9:00 AM - 5:00 PM
Thank you
National Metering
Services, Inc.
www.nmsnl.corn
itTr1'11�1� I 'El '0ntt;st (,ION
oepartmento Para el
'Vat ional Aleterin de.l ua
rc°�l�l t�,i su nIedidor `igaSerVJCe5, Inc.
gua el dia de hoy
EEste a puede estar turbta
es el resU
ltado que eria principal rada. Por favor
e su sistema
a abriendo las
del agua ya correr por unto o hasta claramente.runtas o,1eceSita
mas infonnacion• por favor Ilame a1
1-888-448-0009
De Junes a 11e1'nes entra 1,9s:
9: 00 A A1- S; 00 P1b7
National
nal Metering
Services, Inc.
www nmSnJ.corn
EXHIBIT 5 - DEFINITIONS
"Accessible Meter" means any IRC water Meter: (i) not obstructed or blocked in a manner that
prohibits reasonable access; (ii) the condition of which does not make installation of the meter
impractical in terms of time, expense or safety; (iii) with respect to which National has access to
the premises and the IRC water meter; (iv) where IRC has provided National with accurate and
up-to-date customer contact information and/or physical access keys; and (v) where National's
field crew does not encounter an Unsafe Condition or situation where the IRC meter has been
tampered with. Without limiting the foregoing, an IRC Meter is not an Accessible Meter if
National contacts the occupant on three (3) occasions (two (2) physical (door knock, etc.) and
one (1) phone attempt) as required hereunder and is unable to install a meter or schedule an
appointment for meter installation where access to the IRC Meter is not available without the
cooperation of the occupant or owner of the premises. National will notify IRC when Meters are
not Accessible and provide a reason or description for inaccessibility by end of the business day
on which the meter was scheduled to be replaced.
"Affiliates" shall mean, with respect to any entity, any other entity Controlling, Controlled by or
under common Control with such entity.
"Agreement" shall have the meaning specified in the Preamble.
"AMR Meter" shall mean a Master Meter water meter capable of automatically collecting
customer consumption information and wirelessly transferring that data to a central database.
"AMR System" shall mean the technology of automatically collecting consumption information
from an AMR meter and wirelessly transmitting the data to the MDM and then to the billing
system.
"Change Control Procedures" shall mean the change control procedures applicable to any
Changes to this Agreement as set forth in Section 17.03.
"Change in Control" shall mean the (1) consolidation or merger of a Party with or into any
entity, (2) sale, transfer or other disposition of all or substantially all of the assets of a Party or
(3) acquisition by any entity, or group of entities acting in concert, of beneficial ownership of 20
percent or more of the outstanding voting securities or partnership interests of a Party.
"Change Order" shall mean a document issued by IRC for Changes to this Agreement as set
forth in Section 17.03.
"Change(s)" shall mean any change to (1) the Services, (2) the Equipment, Software or National
Processes used to provide the Services that would materially alter the functionality,
performance standards or technical environment of such Equipment or Software, (3) the
manner in which the Services are provided, (4) the composition of the Services or (5) the cost to
IRC of the Services.
70
"Charges" shall mean all of the compensation payable to National with respect to the Services,
as set forth in Exhibit 2.
"Claim" shall mean any civil, criminal, administrative or investigative action or proceeding
against a Party.
"Compliance Requirements" shall mean the requirements of the Securities and Exchange
Commission Act of 1934 and all amendments thereto, including the Sarbanes-Oxley Act of
2002, and any similar, future Securities and Exchange Commission requirements, and any
requirements and rules pertaining thereto established by Law, including requirements imposed
by auditing standards or reporting requirements promulgated by the American Institute of
Certified Public Accountants, the Public Company Accounting Oversight Board or the Securities
and Exchange Commission.
"Computing Systems" shall have the meaning set forth in Section 8.03(1).
"Confidential Information" of IRC or National shall mean all information and documentation of
IRC and National, respectively, whether disclosed to or accessed by IRC or National in
connection with this Agreement, including (1) with respect to IRC all IRC Data and all
information of IRC or its customers, suppliers, contractors and other third parties doing
business with IRC, including any such information of IRC that is not permitted to be disclosed to
third parties under local laws or regulations, (2) with respect to IRC and National, the terms of
this Agreement and (3) any information developed by reference to IRC's or National's
information.
"Consents" shall mean all licenses, consents, authorizations and approvals that are necessary to
allow National and National Agents to use (a) IRC's owned and leased assets, (b) the services
provided for the benefit of IRC under IRC's third- party services contracts, (c) the IRC Software,
(d) any National Software and Tools, (e) any assets owned or leased by National and (f) any
third -party services retained by National to provide the Services during the Term and the
Termination Assistance Period. All Consents shall be in writing.
"Contract Year" shall mean each 12-month period commencing on the Effective Date and
thereafter upon the completion of the immediately preceding Contract Year.
"Control" and its derivatives, shall mean, with regard to any entity, the legal, beneficial or
equitable ownership, directly or indirectly, of 50 percent or more of the capital stock (or other
ownership interest, if not a corporation) of such entity ordinarily having voting rights, or
effective control of the activities of such entity regardless of the percentage of ownership.
"Data Safeguards" shall have the meaning set forth in Section 18.02.
"Deployment" shall have the meaning given in Section 5.01.
"Deployment Plan" shall have the meaning given in Section 5.01.
71
"Deployment Schedule" shall mean the project schedule of activities as initiated in Exhibit 1
Section 8 and to be completed and included in the Deployment Plan.
"Designated National Service Location(s)" shall mean any National service location set forth in
Exhibit 1
"Disaster" shall mean an unanticipated incident or event, including Force Majeure Events,
technological accidents, or human -caused events, that may cause a material service, critical
application, manufacturing capability or capacity, or communications network to be unavailable
without any reasonable prediction for resumption, or that causes data loss, property damage or
other business interruption without any reasonable prediction for recovery, within such period
as determined by IRC, in its sole discretion.
"Dispute" shall mean any disagreement, argument or difference of opinion between (1) any of
National and or of its respective Affiliates (collectively, the "National Parties") on one hand and
(2) IRC and any of its respective Affiliates (collectively, the " IRC Parties") on the other hand as
to (a) any matter, whether deemed material or not, directly or indirectly concerning or related
to this Agreement, the Purchase Order or any Change Order (whether proposed, pending, or
previously agreed to) or (b) any other matter that arises between or as to any of the National
Parties and any of the IRC Parties at any time.
"Dispute Notice" shall have the meaning set forth in Section 25.02(1).
"Documents" shall have the mean any literary works or other works of authorship created
under this Agreement, including deployment and installation plans, reports, training materials,
data, documentation and information, in whatever form, produced or created by National for
IRC in connection with the Services
"DRP" shall have the meaning set forth in Section 19.02(1).
"Effective Date" shall have the meaning set forth in the Preamble.
"Equipment" shall mean deployment and installation tools, work management tools, data
storage and management tools (including handheld devices), inventory tools for bar-coding and
Radio -frequency Identification (RFID), vehicles, computers and related equipment, including
processors, controllers, storage devices, networks, modems, routers, communications and
telecommunications equipment (voice, data and video), cables, printers, terminals, other
peripherals and input and output devices, transmitters and receivers, automated work order
systems, test boards and other tangible mechanical and electronic equipment intended for the
processing, input, output, storage, manipulation, communication, transmission, testing and
retrieval of information and data.
"FCC Rules and Regulations" shall have the meaning set forth in Section 23.02(8).
"Force Majeure Event" shall have the meaning set forth in Section 19.01.
72
"Governmental Approval" shall mean any license, consent, permit, approval or authorization of
any person or entity, or any notice to any person or entity, the granting of which is required by
applicable law, rule or regulation during the Term for the consummation of the transactions
contemplated by this Agreement. Governmental Approvals include Board Approvals.
"In -source" shall have the meaning set forth in Section 4.04.
"Initial Agreement Expiration Date" shall have the meaning set forth in Section 3.01.
"Interest" shall mean the commercial paper non -financial interest rate for the one -month
commercial paper published in the then -current month's issue of the Federal Reserve Statistical
Release G.13 (selected interest rates) at the applicable time.
"IRC Agents" shall mean the agents, contractors and representatives of IRC, other than National
and National Agents.
"IRC Assets" shall mean all IRC assets, including the IRC Service Locations, all IRC Software and
Equipment, the IRC Data, the AMR Meters and any rights and easements of IRC to access the
AMR Meters.
"IRC Data" shall mean all data and information of IRC or its customers, suppliers, contractors
and other third parties doing business with IRC that is (1) submitted to National or National
Agents by IRC or such customers, suppliers, Nationals or other parties in connection with this
Agreement, including IRC PII, (2) submitted to IRC by National or National Agents in respect of
the Services or (3) obtained, developed or produced by National or National Agents in
connection with this Agreement, including, information relating to IRC's customers, employees,
technology, meters, operations, facilities, consumer markets, products, capacities, systems,
procedures, security practices, research, development, business affairs and finances, ideas,
concepts, innovations, inventions, designs, business methodologies, improvements, trade
secrets, copyrightable subject matter, patents and other intellectual property and proprietary
information. IRC Data shall not include statistical data solely in respect of National's actual
performance against the Service Levels under this Agreement presented in a manner that does
not disclose any Confidential Information of IRC or from which Confidential Information of IRC
can be derived.
"IRC PII" shall mean all personally identifiable information of IRC's or its Affiliates' employees or
customers provided to or acquired by National in connection with the Services.
"IRC Project Manager" shall have the meaning set forth in Section 11.01.
"IRC Proprietary Software" shall mean the Software and Related Documentation owned,
acquired or developed by IRC (1) prior to the Effective Date and to which access by National is
required in order for National to provide the Services, and (2) after the Effective Date and to
which access by National is required in order for National to provide the Services.
"IRC Service Location(s)" shall mean any IRC facilities or service locations.
73
"IRC Software" shall mean the IRC Proprietary Software and the IRC Third -Party Software.
"IRC Third -Party Software" shall mean the Software and Related Documentation that is licensed
or leased by IRC from a third -party (1) prior to the Effective Date and to which access by
National is required in order for National to provide the Services, and (2) after the Effective
Date and to which access by National is required in order for National to provide the Services.
"IRC's Regulatory Requirements" shall mean the laws, rules and regulations on an international,
Federal, state and local level to which IRC is required to submit or voluntarily submits from time
to time.
"IRC" shall have the meaning set forth in the Preamble.
"Key National Position" shall have the meaning set forth in Section 13.02.
"Key Personnel" means those persons to be used by National in performance of the Services as
identified in this Deployment Services SOW. In addition to any person identified by name, all
persons filling positions identified as "Key Personnel" members in Exhibit 1 shall be deemed Key
Personnel.
"Law" shall mean all federal, state, and local laws, statutes, ordinances, regulations, rules,
executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters
and other official releases of or by any government, or any authority, department or agency
thereof, or any regulatory or administrative entity, including the PUC Regulatory Requirements
and the FCC Rules and Regulations.
"Milestone" shall mean that date upon which a Documents, deliverable or significant activity is
to be completed.
"Monthly Service Level Report" shall have the meaning set forth in Section 9.05.
"National Agents" shall mean the agents, subcontractors and representatives of National.
"National Data Connection" shall have the meaning set forth in Section 12.03.
"National Equipment" shall mean the Equipment rented, leased or owned by National and
National Agents that is used by National and National Agents to provide the Services.
"National Personnel" shall mean employees of National and National Agents who provide the
Services.
"National Processes" shall mean the processes and Related Documentation owned or
developed by or on behalf of National that are used in connection with the Services.
"National Project Coordinator" shall have the meaning set forth in Section 13.01.
74
"National Proprietary Software" shall mean the Software and Related Documentation owned or
developed by or on behalf of National that is used in connection with the Services.
"National Software" shall mean the National Proprietary Software and the National Third -Party
Software, collectively.
"National Third -Party Software" shall mean the Software and Related Documentation licensed
or leased by National from a third -party that is used (1) in connection with the Services or (2)
with any National Proprietary Software.
"National" shall have the meaning set forth in the Preamble.
"Non -accessible Meter" means any meter that has imminent failure of plumbing, rotted pipes,
preexisting leaks or plumbing that is not conforming to local plumbing code, meters that are hard
piped (no couplings), customer refusal of service or customer refusal of RF Integrated equipment
being installed, appointments that require access to secure or locked areas and customer does
not make arrangements, hazardous materials in meter box or on piping IE Asbestos lined pipes,
and when National has made attempts multiple attempts to access meter as defined in
"Accessible Meter".
"On -Site Repairs" shall mean any repairs required after installation resulting from improper
installation or oversite on the installation crew
"Out -of -Pocket Expenses" shall mean reasonable, demonstrable and actual out-of-pocket
expenses incurred by National for Equipment, materials, supplies or services provided to or for
IRC as identified in this Agreement, but not including National's overhead costs (or allocations
thereof), internal administrative expenses or other mark-ups.
"Out -of -Scope Service(s)" shall mean any service that is outside the Scope of the Services.
"Parties" shall have the meaning set forth in the Preamble.
"Party" shall have the meaning set forth in the Preamble.
"Pass -Through Expenses" shall mean third -party charges that are paid by National and for
which National is reimbursed. Pass -Through Expenses exclude National's overhead costs (or
allocations thereof), internal administrative expenses or other markups.
"Preamble" shall mean the first paragraph of this Agreement.
"Privacy Laws" shall have the meaning set forth in Section 18.03.
"Prohibited Items" shall have the meaning set forth in Section 8.04(3).
"Re -source" shall have the meaning set forth in Section 4.04.
75
"Rejected Meters" shall mean non -working or meters failing testing criteria
"Related Documentation" shall mean, with respect to National Processes, Software, Tools and
AMR Modules, all materials, documentation, specifications, technical manuals, user manuals,
flow diagrams, file descriptions and other written information that describes the function and
use of such National Processes, Software, Tools or AMR Modules, as applicable.
"Replaced Meters" shall mean the as found meter prior to National's installation of the AMR
meter as outlined in Services
"Return to Owner" means a non -Accessible Meter for which responsibility for installation has
been transferred from National to IRC as provided Exhibit 1.
"Route" shall mean a group of AMR Meters in the IRC territory identified in the Deployment
Plan as a "Route".
"Service Level Default" shall mean the failure of National to meet a Service Level.
"Service Level" shall mean the quantitative performance standards for the Services set forth in
Exhibit 5.
"Service Location(s)" shall mean any IRC Service Location or Designated National Service
Location, as applicable.
"Services" shall have the meaning set forth in Section 4.01.
"Software" shall mean the source code and object code versions of any applications programs,
operating system software, computer software languages, utilities, other computer programs
and Related Documentation, in whatever form or media, including the tangible media upon
which such applications programs, operating system software, computer software languages,
utilities, other computer programs and Related Documentation are recorded or printed,
together with all corrections, improvements, updates and releases thereof.
"Statement of Work" shall mean the description of activities, tasks, responsibilities and duties
of National set forth in Exhibit 1.
"Systems" shall mean any Equipment or Software comprising a Party's computing system, and
includes the IRC Computing Systems.
"Term" shall mean the Term of the project as set forth in Section 3.01.
"Termination Assistance Period" shall mean a period of time designated by IRC commencing on
the date a determination is made that there will be an expiration or termination of this
Agreement and continuing for up to 12 months after the expiration or termination of this
Agreement, during which National shall provide the Termination Assistance Services.
76
"Termination Assistance Services" shall mean (1) the Services (and any replacements thereof or
substitutions therefor), to the extent IRC requests such Services during the Termination
Assistance Period, (2) National's cooperation with IRC or another service provider designated by
IRC in the transfer of the Services to IRC or such other service provider in order to facilitate the
transfer of the Services to IRC or such other service provider and (3) any Out -of -Scope Services
requested by IRC in order to facilitate the transfer of the Services to IRC or another service
provider designated by IRC.
"Third -Party Providers" shall mean any parties other than National and IRC that are providing
services and equipement in connection with Exhibit 1.
"Tools" shall mean any Software development and performance testing tools, know-how,
methodologies, processes, technologies or algorithms and Related Documentation used by
National in providing the Services and based upon trade secrets or proprietary information of
National or otherwise owned or licensed by National.
"Use" shall mean the right to use, load, execute, store, transmit, display, distribute, copy,
maintain, modify, enhance and create derivative works.
"WMDVBE" shall mean a certified Women Minority Disabled Veteran Business Enterprise.
V12
CONTRACT
THIS CONTRACT, pursuant to City Council approval granted on Ts Z(ft is
made and entered into this '" day of , 20 9, y and between the City
of Venice, Florida, hereinafter referred to aAhe City, and National Metering Services, Inc.,
hereinafter referred to as the Contractor.
WITNESSETH:
THAT FOR and in consideration of the mutual covenants and obligations hereafter set forth,
the parties hereto agree as follows:
(1) The Contract Documents consist of this Contract, Performance and Payment Bonds
attached hereto as composite Attachment A and, the City's Invitation to Bid (ITB) # 3097-19 Water
Meter Change -Out Program — Phase 4 including: standard general conditions, supplemental
conditions, special conditions, technical specifications, drawings, Contractor's bid proposal for ITB
3097-19, all of which are incorporated herein by reference. All of the Contract Documents are made
a part of this Contract.
(2) The Contractor shall perform all the work required by the Contract Documents and
shall include installation of the listed items per the bid specifications.
(3) Before any work is commenced under this Contract, the City will issue a Notice to
Proceed to the Contractor specifying the work it is requesting the Contractor to complete. The
contract shall be for a six (6) month period, commencing on effective date, and terminating six (6)
months from that date. Services will be administered via individual work assignments through
purchase orders based on the unit prices submitted on the Contractor's bid form.
(4) The City shall pay the Contractor for the performance of the work, in accordance with
Exhibit B, subject to the terms and conditions of the Contract Documents and any written change
orders. Contractor shall issue a monthly invoice, consistent with the prices provided in Exhibit B, to
the City setting forth the work completed to -date by the Contractor.
(5) Time is of the essence in this contract. In the event that the work is not completed
within the required time as specified in Section 3 herein, then from the compensation otherwise to
be paid to the Contractor, the City may retain the sum of one hundred dollars ($ 100.00) per day
for each calendar day that the work remains incomplete beyond the time limit, which sum shall
represent the actual damage which the City will have sustained per day by failure of the Contractor
to complete the work within the required time, said sum not being a penalty but being the stipulated
damages the City will have sustained in the event of such default by the Contractor.
(6) In connection with the performance of work under this Contract, the Contractor agrees
not to discriminate against any employee or applicant for employment because of race, sex, religion,
color, or national origin. The aforesaid provision shall include, but not be limited to, the following:
employment, upgrading, demotion or transfer, recruitment or recruitment advertising, lay-off or
termination, rates of pay or other forms of compensation, and selection for training, including
apprenticeship. The Contractor agrees to post hereafter in conspicuous places, available for
employees or applicants for employment, notices to be provided by the contracting officer setting
forth the provisions of the non-discrimination clause. The Contractor further agrees to insert the
foregoing provisions in all contracts hereunder, including contracts or agreements with labor unions
and/or workers' representatives, except subcontracts for standard commercial supplies or raw
materials.
(7) Contractor must secure and maintain any and all permits and licenses required to
complete the work under this Contract, unless the Contract Documents provide otherwise.
(8) Throughout the term of this Contract the Contractor must maintain insurance in at
least the amounts and coverage required as shown in Exhibit C. The Contractor must provide a
Certificate of Insurance to the City evidencing such coverage prior to issuance of the Notice to
Proceed by the City.
(9) Contractor agrees to comply with Florida's public records law by keeping and
maintaining public records that ordinarily and necessarily would be required by the public agency in
order to perform the services of this Contract; upon the request of the City's Custodian of Public
Records, by providing the City with copies of or access to public records on the same terms and
conditions that City would provide the records and at a cost that does not exceed the cost provided
by Florida law; by ensuring that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed excepts as authorized by law for the duration
of the term of the Contract and following completion of the Contract if the Contractor does not
transfer the records to the City; and upon completion of the Contract by transferring, at no cost, to
City all public records in possession of Contractor or by keeping and maintaining all public records
required by the City to perform the services of this Contract. If the Contractor transfers all public
records to the City upon completion of the Contract, the Contractor shall destroy any duplicate public
records that are exempt or confidential and exempt from public records disclosure requirements. If
the Contractor keeps and maintains public records upon completion of the Contract, the Contractor
shall meet all applicable requirements for retaining public records. All records stored electronically
must be provided to the City, upon request from the City's custodian of public records, in a format
that is compatible with the information technology systems of the City.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS CONTRACT, CONTACT THE CITY'S CUSTODIAN OF PUBLIC
RECORDS LORI STELZER, MMC, CITY CLERK, AT 401 W. VENICE
AVENUE, VENICE, FLORIDA 34285, (941) 882-7390,
LSTELZER@VENICEGOV.COM.
(10) Contractor shall indemnify, pay the cost of defense, including attorneys' fees, and
hold harmless the City from all suits, actions, or claims of any kind brought on account of any
injuries or damages received or sustained by any person or property by or from the Contractor or in
consequence of any neglect in safeguarding the work; or by the use of any unacceptable materials
related to the work; or on account of any act or omission, neglect or misconduct of the Contractor;
or on account of any claim or amounts received under the "Workers' Compensation Law" or any
other laws or ordinances, except only such injury or damage as shall have been caused by the
negligence of the City. The first ten dollars ($10.00) of compensation received by the Contractor
represents specific consideration for this indemnification obligation.
(11) Contractor shall be responsible for compliance with the requirements under Chapter
556, Florida Statutes, the "Underground Facility Damage Prevention and Safety Act." Contractor's
obligations to defend, indemnify, and hold harmless the City, as provided for under Section 10 of
this Contract, . shall specifically apply to any violations alleged against the City under the
Underground Facility Damage Prevention and Safety Act related to the performance of the work
under this Contract. Contractor acknowledges that included in the various items of the proposal and
in the total bid price, are costs for complying with the Florida Trench Safety Act (90-96 Laws of
Florida) effective October 1, 1990.
(12) Termination. This Contract may be terminated by the City without cause, by giving
thirty (30) days prior written notice to Contractor of the intention to cancel; or with cause at any time
Contractor fails to fulfill or abide by any of the terms or conditions specified. Failure of Contractor
to comply with any of the provisions of this Contract shall be considered a material breach of
Contract and shall be cause for immediate termination of the Contract at the discretion of the city.
This Contract may be terminated by the Contractor only by mutual consent of both parties. If this
Contract is terminated before performance is completed, the Contractor shall be paid only for that
work satisfactorily performed for which costs can be substantiated.
(13) The laws of the State of Florida shall govern all provisions of this Contract. Venue
for any dispute shall be Sarasota County, Florida. If any court proceeding or other action occurs
between the parties as a result of this Contract or any other document or act required by this Contract,
the prevailing party shall be entitled to recover attorney's fees and all court costs, including attorney's
fees and court costs incurred in any pre-trial, trial, appellate, and/or bankruptcy proceedings, as well
as, attorney's fees and costs incurred in determining entitlement to and reasonableness of fees and
costs.
(14) This Contract and the Contract Documents constitute the entire Contract of the
parties and may not be changed or modified, except by a written document signed by both parties
hereto. This Contract shall be binding upon the successors and assigns of the parties.
IN WITNESS WHEREOF, the parties to the Contract have hereunto set their hands and seals
and have executed this Contract, the day and year first above written.
ATTEST:
.)-I ,. C� J��
Nicole Floyd
Signed by (typed or printed)
(SEAL)
Al"PEST:
National Metering Services, Inc.
BY: L-
Wi lam Castle, President
Signed by (typed or printed)
CITY OF VENICE
IN SARASOTA COUNTY, FLORIDA
BY
LO I TELZER, CITY ERK JOHN O C, MAYOR
Approved as to Form and Correctness
ApprovM, By City Cou ecii
KELL FERNANDEZ, CITY ATTORNEY Data: � \q
EXHIBIT A
SURETY BONDS
At the time of executing the Contract Documents, the successful proposer shall append to this sheet
separate performance and payment bonds each equal to one -hundred percent (100%) of the Contract
amount. Said bonds become an integral part of these Contract Documents and shall meet the
following requirements:
l . Surety bonds submitted shall be written by a surety company that is approved by the
City Finance Director and authorized to do business in the State of Florida, shall be accompanied by
evidence of the authority of the issuing agent, and shall be on a form to be approved by the City
Attorney. No bond in an amount greater than $5,000 required by the City Charter, the Ordinances of
The City of Venice, or the laws of the State of Florida shall be approved by the City Finance Director
unless the surety company executing the bond is listed by the United States Treasury Department as
being approved for writing bonds for Federal projects and its current list in an amount not less than
the amount of the bond tendered to The City of Venice.
2. Both the separate payment and performance bonds shall be in the general form of AIA
documents A311. Additionally, the payment bond shall state as follows:
"This bond is issued in compliance with Section 255.05, Florida Statutes (1994 Supp.), as may be
amended. A claimant, except a laborer, who is not in privity with the Contractor and who has not
received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish
labor, materials, or supplies for the prosecution of the work, furnish the Contractor with a notice, that
he intends to look to the bond for protection. A claimant who is not in privity with the Contractor
and who has not received payment for his labor, materials, or supplies shall, within 90 days after
performance of the labor or after complete delivery of the materials or supplies, or with respect to
rental equipment, within 90 days after the date that the rental equipment was last on the job site
available for use, deliver to the Contractor and to the surety written notice of the performance of the
labor or delivery of the materials or supplies and of the nonpayment. No action for the labor,
materials, or supplies may be instituted against the Contractor or the surety unless both notices have
been given. No action shall be instituted against the Contractor or the surety on the payment bond or
the payment provisions of a combined payment and performance bond after 1 year from the
performance of the labor or completion of delivery of the materials or supplies. A claimant may not
waive in advance his right to bring an action under the bond against the surety. In any action brought
to enforce a claim against a payment bond under this section, the prevailing party is entitled to
recover a reasonable fee for the services of his attorney for trial and appeal or for arbitration, in an
amount to be determined by the court, which fee must be taxed as part of his costs, as allowed in
equitable actions."
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Bond No. 6021223272
PUBLIC WORKS PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
THAT National Metering Services, Inc. ,. as Principal, hereinafter called Coma tor; and
United States Fire Insurance Company , a corporation of the State o as
surety, hereinafter called Surety, are held and firmly bound unto the City of Venice as Obligee,
hereinafter called the City, in the amount of ($ 123,100.00 ) &
One Hundred Twenty Three Thousand, One Hundred 13011-S100's,:for the payment whereof Contractor and Surety bind
themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally,
firmly by these presents.
WHEREAS, Contractor has by written Contract dated the 17th day of
May 2019 , entered into a Contract with the City of Venice for the following
described project: ITB# 3097-19: Water Meter Change -Out Program — Phase 4, which Contract
is by reference incorporated herein and made a part hereof, and is hereinafter referred to as the
Contract.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if the Contractor
shall promptly and faithfully perform the Contract during the original term thereof and any extensions
thereof which may be granted by the City with or without notice to the Surety and during any
guarantee or warranty period, including the obligation to correct any latent defects not discovered
until after acceptance of the project by the City, and ifhe shall satisfy all claims and demands incurred
under said Contract and shall fully indemnify and save harmless the City, its agents, Engineer and
employees from all losses, damages, expenses, costs and Attomey's Fees, including appellate
proceedings which it may suffer by reason of failure to do so, and shall reimburse and repay the City
all outlay and expense which the City may incur in making good any default, then this obligation
shall be null and void; otherwise it shall remain in full force and effect.
PROVIDED FURTHER, whenever Contractor shall be, and declared by the City to be in default
under the Contract, the City having performed is obligations thereunder, the Surety may promptly
remedy the default or shall promptly:
(1) Complete the Contract in accordance with its terms and conditions; or
(2) Obtain a bid or bids for submission to the City for completing the Contract in
accordance with its terms and conditions and upon determination by the City and Surety of
the lowest responsible bidder, arrange for a Contract between such bidder and City and
make available as work progresses (even though there should be a default or a succession
of defaults under the Contract or Contracts of completion arranged under this paragraph)
sufficient funds to pay the cost of completion, less the balance of the Contract price; but
not exceeding, including other costs and damages for which the Surety may be liable
hereunder, the amount set forth in the first paragraph hereof. The term "balance of the
Contract price" as used in this paragraph, shall mean the total
amount payable by the City to Contractor under the Contract and any :amendments thereto,
less the amount :properly paid by the .City to the Contractor.
PROVIDED FLIRTIIER, the Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alterdion or addition to the terms of the Contract or to the work to be performed
thereunder or the .Contract Documents accompanying the same shall in any waive notice of any such
change, extension of time, alteration or addition to the terms of the Contract or to the work or to the
Contract Documents.
PROVIDED FURTHER, any suit under this bond must be instituted before the expiration of two (2)
years from the date ou which final payment under the Contract falls due, except that, when the action
involves a latent defect, suit must be instituted ividlia four (4) years from the time the defect is
discovered or should have been: discovered with the exercise of due diligence.
PROVIDED FURTHER, no right of action shall aocrue on this bond to or for the use, of anyperson of
corponatiott other than the City, its suocessors or, assigns:
SIGfNED.AND SEALED this 23rd day of May , AD.., 2019.
IN THE PRESENCE OF: CONTRACTOR National Metering Services, Inc.
Surety Company: United States Fire Insurance Company
INSURANCE COMPANY
Agent AdA- tt&Aey-in-Fact Thomas M.'Niland
ACKNOWLEDGEMENT OF CONTRACTOR, IF A CORPORATION
r
STATE OFd
COUNTY OF g4DO&e
ON THE 3,6 DAY OF h'► , 2019 BEFORE ME PERSONALLY CAME
W I I; h2LV b4al-i -4 c
TO ME KNOWN, WHO BEING BY ME DULY SWORN, DID DEPOSE AND SAY
THAT (S) HE RESIDES AT 3 s �n
THAT (S) HE IS THE
OF NATIONAL METERING SERVICES, INC. IN AND WHICH EXECUTED THE
ABOVE INSTRUMENT; AND THAT (S) HE SIGNED HIS/HER NAME THERETO
BY ORDER OF THE BOARD OF DIRECTORS OF SAID CORPORATION
Notary
J. fATEL
ACKNOWLEDGEMENT OF SURETY NOTARY PUBLIC OF NEWJ"NVY
ii Commission Expires�1•. �Z: .
STATE OF NEW YORK
COUNTY OF SUFFOLK
ON THE 23rd DAY OF MAY 2019, BEFORE ME PERSONALLY CAME THOMAS
M. NILAND TO ME KNOWN, WHO, BEING BY ME DULY SWORN, DID DEPOSE
AND SAY THAT (S)HE RESIDES AT LIDO BEACH, NY THAT (S)HE IS THE
ATTORNEY IN FACT OF UNITED STATES FIRE INSURANCE COMPANY
THE CORPORATION DESCRIBED IN AND WHICH EXECUTED THE ABOVE
INSTRUMENT; THAT (S)HE KNOWS THE SEAL OF SAID CORPORATION; THAT
ONE OF THE SEALS AFFIXED TO THE FOREGOING INSTRUMENT IS SUCH
SEAL; THAT IT WAS SO AFFIXED BY ORDER OF THE BOARD OF DIRECTORS
OF SAID CORPORATION; AND THAT (S)HE SIGNED HIS/HER NAME THERETO
BY LIKE ORDER
d
NotiryMPubfied
ROBYN GUARINO
NOTARY PUBLIC -STATE OF NEW YORK
No. 01 G U6383323
Qualified in Suffolk County �1
my Commission Expires 1 1-13-20d`�
POWER OF ATTORNEY
UNITED STATES FIRE INSURANCE COMPANY
PRINCIPAL OFFICE - MORRISTOWN, NEW JERSEY
77613408219
KNOW ALL MEN BY THESE PRESENTS: That United States Fire Insurance Company, a corporation duly organized and existing under the laws of the
state of Delaware, has made, constituted and appointed, and does hereby make, constitute and appoint:
Thomas K Niland, Gaye Conklin
each, its true and lawful Attomey(s)-In-Fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver.
Any and all bonds and undertakings of surety and other documents that the ordinary course of surety business may require, and to bind United States Fire
Insurance Company thereby as fully and to the same extent as if such bonds or undertakings had been duly executed and acknowledged by the regularly elected
officers of United States Fire Insurance Company at its principal office, in amounts or penalties not exceeding: Seven Million, Five Hundred Thousand
Dollars ($7,500,000).
This Power of Attorney limits the act of those named therein to the bonds and undertakings specifically named therein, and they have no authority to bind
United States Fire Insurance Company except in the manner and to the extent therein stated.
This Power of Attorney revokes all previous Powers of Attorney issued on behalf of the Attomeys-In-Fact named above and expires on January 31, 2020.
This Power of Attorney is granted pursuant to Article IV of the By -Laws of United States Fire Insurance Company as now in full force and effect, and
consistent with Article III thereof, which Articles provide, in pertinent part:
Article IV, Execution of Instruments - Except as the Board of Directors may authorize by resolution, the Chairman of the Board, President,
any Vice -President, any Assistant Vice President, the Secretary, or any Assistant Secretary shall have power on behalf of the Corporation:
(a) to execute, affix the corporate seal manually or by facsimile to, acknowledge, verify and deliver any contracts, obligations, instruments
and documents whatsoever in connection with its business including, without limiting the foregoing, any bonds, guarantees, undertakings,
recognizances, powers of attorney or revocations of any powers of attorney, stipulations, policies of insurance, deeds, leases, mortgages,
releases, satisfactions and agency agreements;
(b) to appoint, in writing, one or more persons for any or all of the purposes mentioned in the preceding paragraph (a), including affixing the
seal of the Corporation.
Article III, Officers, Section 3.11, Facsimile Signatures. The signature of any officer authorized by the Corporation to sign any bonds,
guarantees, undertakings, recognizances, stipulations, powers of attorney or revocations of any powers of attorney and policies of insurance
issued by the Corporation may be printed, facsimile, lithographed or otherwise produced. In addition, if and as authorized by the Board of
Directors, dividend warrants or checks, or other numerous instruments similar to one another in form, may be signed by the facsimile
signature or signatures, lithographed or otherwise produced, of such officer or officers of the Corporation as from time to time may be
authorized to sign such instruments on behalf of the Corporation. The Corporation may continue to use for the purposes herein stated the
facsimile signature of any person or persons who shall have been such officer or officers of the Corporation, notwithstanding the fact that he
may have ceased to be such at the time when such instruments shall be issued.
IN WITNESS WHEREOF, United States Fire Insurance Company has caused these presents to be signed and attested by its appropriate officer and its
corporate seal hereunto affixed this I Oa' day of March, 2016.
UNITED STATES
jF�IRt,,1NSITRAN[rE COMPANY
Anthony K Slimowicz, Executive Vice President
State of New Jersey}
County of Morris }
On this I& day of March 2016, before me, a Notary public of the State of New Jersey, came the above named officer of United States Fire Insurance
Company, to me personally known to be the individual and officer described herein, and acknowledged that he executed the foregoing instrument and affixed
the seal of United States Fire Insurance Company thereto by the authority of his office. /� f
SONIASCALA .It1c�:� ,
NOTARY PUBLIC OF NEW JERSEY Sonia Scala (Notary Public)
MY COMMISSION EXPIRES 3/25/2019
I, the undersigned officer of United States Fire Insurance Company, a Delaware corporation, do hereby certify that the original Power of Attome 420
h the
foregoing is a full, true and correct copy is still in force and effect and has not been revoked. �,�
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of United States Fire Insurance Company on the day of
UNITED STATES FIRE INSURANCE COMPANY
O'N'R"
iA.t r _�a
Al Wright, Senior Vice President
UNITED STATES FIRE INSURANCE COMPANY
1209 ORANGE STREEP, WILMINGTON, DELA WARE 19801
STATEMENT OF ASSETS, LIABILITIES, SURPLUS AND OTHER FUNDS
AT DECEM 3ER 31, 2018
A�S=
Bonds (Amortized Value) ........ ........... ........ ..... ........ .......... ................ . ...... ......:................. .
1,575,095,694
Preferred Stocks (Market Value) ....... ........ ............................. _...,... _... .............. ..........._......_
2,500,000
Common Stocks (Market Value) .............................. ...,.:...., ..........
........ ,..,,,.... ......................
1,163,841,710
Mortgage Loans (Market Value) .................... ... ....................................................................
3,510,000
Cash, Cash Equivalents, and Short Term Investments .......................... .........
477,327,351
Derivatives................................................................—...:..... _ ............. _........................ ......................
23,002,739
OtherInvested Assets ........... ........... :........................................................ ............ ...... ...... .
216,475,684
Investment Income Due and Accrued ................. ...........................1,............................. ,,, ...
8,006,764
Premiums and Considerations..............................................................................................
195,195,701
Amounts Recoverable from Reinsurers ................................ ,............ , ..— ... ..,... :.,......... ,, I— ... ,.
31,104,247
Funds Held by or Deposited with Reinsured Companies ............... ............... .......... ... I ............. ..
4,482,82.3
Current income Taxes Recovemblc...... ................................ .....:..... ............. ......... ........ .
1,966.565
NetDeferrcdTax Asset ................... :....... ......... ........... .........._........ I ...... ....,.. ....... .
161,021,872
Electronic Data Processing Equipment ............................. _..... .... _ ................. .. ....
4,043,042
Receivables from Parent, Subsidiaries and Affiliates.....,... I ............. ............... I ......... ...... :,..,...
138.140,009
OtherAssets .............................................. ................. ........ ...... ..... ....,....... .... ....., ...
80,113,770
TOTALASSETS ...... ...... :.............. ........................................................ S
4,085,827,97D
LIABILITIES, SURPLUS & OTHER FUNDS
Losses (Reported Losses Net of Reinsurance Ceded and Incurred
ButNot Reported Losses). . ........................ ......................... ...................................... .......
Reinsurance Payable an Paid Losses and Loss Adjustment Expenses
1,559,822,684
.................. :............. ...... .........
LossAdjustment Expenses.................................................................................................
41,178,534
386,939,696
Commissions Payable, Contingent Commissions and Other Similar Charges ....................... ..............
3,516,082
Other Expenses (Excluding Taxes, Licenses and Fees)......................................................... ........
48,794,043
Taxes, Licenses and Fees (Excluding Federal Income Taxes) ...................................................... ..
20,335,069
UncamcdPremiums..........................................................................................................
517,688,148
AdvancePremium ...................... ..... :..................... ......... ..................... .............. ............ .
5,194,006
Ceded Reinsurance Premiums Payable.................................................................... 1...........
23,630,61I
Funds Held by Company under Reinsurance Treaties ..................................... ............_............_
20,864,701
Amounts Withheld by Company for Account of Others .................................... .......... ........ .........
76,666,809
Provision for Reinsurance .............. ....... .................................. ..,,......... ,,.............. .....- ,..._...
627,927
Payable to Parent, Subsidiaries and Affiliates ................................ ....—_.....................I ........ _ ...
10,488,505
OtherLiabilities.-- -- --- --_......... .................. ............. ............. ....... ........._......_........
52,539,791.
TOTAL LTABILTTTES................_..............,.............................. _...... .._S
2,768,186.596
CommonCapital Stock.....................................................................................................
13,560,000
Gross Paid In and Contributed Surplus............................................................................ ........
1,246,294,940
UnassignedFunds(Surplus).............................................................................................
57.786,434
_
Surplus as Regards Policyholders ............................................. _ ..... . , ..,
1,317,641,374
TOTAL LIABILTUES, SURPLUS & OTHER FUNDS .......................................... S
4.085,827,470
1, Cnrmine Scaglione, Senior Vice President and Controller of UNITED STATES FIRE INSURANCE COMPANY, certify that the foregoing is a fair statement of
Assets, Liabilities, Surplus and Other Funds of ibis Company, at the close of business, December 31, 2018, as reflected by its books and records rind as reported in its
statement on file with the Insurance Department of the State of Delaware.
IN TESTIMONY WHEREOF, I have set my hand and affixed the seal of the Company, this 50 day of March, 2019.
UNITED STATES FIRE INSURANCE COMPANY
Bond No. 6021223272
PUBLIC WORKS PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS:
THAINational Metering Services, Inc. as Princil aloe renafter called Contractor; and United States
Fire Insurance ompany a corporation of the State of ), as surety, hereinafter called Surety,
are held and firmly bound unto the City Venice as Oblige, hereinafter called the City, in the
amount of (e 23,1 0• JOne Hundred Twenty Three Thousand, One Hun red Dol}M's, for the payment whereof
Contractor and Surety bind themselves, their heirs, executors, /administrators, successors, and
assigns, jointly and severalty, firmly by these presents.
WHEREAS, Contractor has by written Contract dated the lath day of
MaY , 2019: entered into a Contract with the City for the following described
project: ITB# 3097-19: Water Meter Change -Out Program — Phase 4, which Contract is by
reference incorporated herein and made a part hereof, and is hereinafter referred to as the Contract.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if Contractor
shall promptly make payments to all persons supplying Contractor labor, materials and supplies, used
directly or indirectly by the said Contractor or Subcontractors in the prosecution of the work provided
for insaid Contract, then this obligation shall be null and void; otherwise it shall remain in full force
and effect.
PROVIDED FURTHER, that the said Surety for value received hereby stipulates and agrees that
no change, extension of time, alteration or addition to the terms of the Contract or to the work to be
performed thereunder or the Specifications accompanying the same shall in anywise affect its
obligation on this Bond, and it does hereby waive notice of any such change, extension of time,
alteration or addition to the terms, of the Contract or to the work or to the Specifications.
PROVIDED FURTHER, that this Bond is issued pursuant to Section 255.05, Florida Statutes, and
reference is hereby made to the notice and time limitations in said statute for making claims against
this Bond.
PROVIDED FURTHER, that any suit under this Bond must be instituted before the expiration of
one (1) year from the performance of the labor or completion of delivery of the materials or supplies.
PROVIDED FURTHER, no right of action shall accrue on this Bond to or for the use of any person
or corporation other than the City named herein and those persons or corporations provided for by
Section 255.05, Florida Statutes, their heirs, executors, administrators, successors or as
SIGNED AND SEALED this 23rd day of May ,A.D„ 2019.
IN THE PRESENCE OF: CONTRACTOR National Metering Services, Inc.-
BY -
Surety Company: United States Fire Insurance Company
INSURANCE COMPANY
Agent d A &mey in -Fact
hama Niland
ACKNOWLEDGEMENT OF CONTRACTOR, IF A CORPORATION
STATE OF tZ� "
COUNTY OF /(�b 55',
ON THE 2Rfn� DAY OF A 1�
bd ? l i j%,r. 0i0e, iJ. C --
, 2019 BEFORE ME PERSONALLY CAME
TO ME KNOWN, WHO BEING BY ME DULY SWORN, DID DEPOSE AND SAY
THAT (S) HE RESIDES AT 16 3
THAT (S) HE IS THE �.
OF NATIONAL METERING SERVICES, INC. IN AND WHICH EXECUTED THE
ABOVE INSTRUMENT; AND THAT (S) HE SIGNED HIS/HER NAME THERETO
BY ORDER OF THE BOARD OF DIRECTORS OF SAID CORPORATION
Notar4L,
u I' -
SHI TEL
ACKNOWLEDGEMENT OF SURETY NOTARY PUBLIC OF NEW JERSEY
My Commission Expires
STATE OF NEW YORK
COUNTY OF SUFFOLK
ON THE 23rd DAY OF MAY 2019, BEFORE ME PERSONALLY CAME THOMAS
M. NILAND TO ME KNOWN, WHO, BEING BY ME DULY SWORN, DID DEPOSE
AND SAY THAT (S)HE RESIDES AT LIDO BEACH, NY THAT (S)HE IS THE
ATTORNEY IN FACT OF UNITED STATES FIRE INSURANCE COMPANY
THE CORPORATION DESCRIBED IN AND WHICH EXECUTED THE ABOVE
INSTRUMENT; THAT (S)HE KNOWS THE SEAL OF SAID CORPORATION; THAT
ONE OF THE SEALS AFFIXED TO THE FOREGOING INSTRUMENT IS SUCH
SEAL; THAT IT WAS SO AFFIXED BY ORDER OF THE BOARD OF DIRECTORS
OF SAID CORPORATION; AND THAT (S)HE SI4otaubl
ER NAME THERETO
BY LIKE ORDER
ic
ROBYN GUARINO
NOTARY PUBLIC -STATE OF NEW YORK
No. 01 GU6383323
Qualified in Suffolk County
My Commission Expires 11-13-20
POWEROFATTORNEY .
UNITED STATES FIRE INSURANCE COMPANY
PRINCIPAL OFFICE - MORRISTOWN, NEW JERSEY
77613408219
KNOW ALL MEN BY THESE PRESENTS: That United States Fire Insurance Company, a corporation duly organized and existing under the laws of the
state of Delaware, has made, constituted and appointed, and does hereby make, constitute and appoint:
Thomas M. Niland, Gaye Conklin
each, its true and lawful Attomey(s)-In-Fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver.
Any and all bonds and undertakings of surety and other documents that the ordinary course of surety business may require, and to bind United States Fire
Insurance Company thereby as fully and to the same extent as if such bonds or undertakings had been duly executed and acknowledged by the regularly elected
officers of United States Fire Insurance Company at its principal office, in amounts or penalties not exceeding: Seven Million, Five Hundred Thousand
Dollars ($7,500,000).
This Power of Attorney limits the act of those named therein to the bonds and undertakings specifically named therein, and they have no authority to bind
United States Fire Insurance Company except in the manner and to the extent therein stated.
This Power of Attorney revokes all previous Powers of Attorney issued on behalf of the Attorneys -In -Fact named above and expires on January 31, 2020.
This Power of Attorney is granted pursuant to Article IV of the By -Laws of United States Fire Insurance Company as now in full force and effect, and
consistent with Article III thereof, which Articles provide, in pertinent part:
Article IV, Execution of Instruments - Except as the Board of Directors may authorize by resolution, the Chairman of the Board, President,
any Vice -President, any Assistant Vice President, the Secretary, or any Assistant Secretary shall have power on behalf of the Corporation:
(a) to execute, affix the corporate sea] manually or by facsimile to, acknowledge, verify and deliver any contracts, obligations, instruments
and documents whatsoever in connection with its business including, without limiting the foregoing, any bonds, guarantees, undertakings,
recognizances, powers of attorney or revocations of any powers of attorney, stipulations, policies of insurance, deeds, leases, mortgages,
releases, satisfactions and agency agreements;
(b) to appoint, in writing, one or more persons for any or all of the purposes mentioned in the preceding paragraph (a), including affixing the
seal of the Corporation.
Article III, Officers, Section 3.11, Facsimile Signatures. The signature of any officer authorized by the Corporation to sign any bonds,
guarantees, undertakings, recognizances, stipulations, powers of attorney or revocations of any powers of attorney and policies of insurance
issued by the Corporation may be printed, facsimile, lithographed or otherwise produced. In addition, if and as authorized by the Board of
Directors, dividend warrants or checks, or other numerous instruments similar to one another in forth, may be signed by the facsimile
signature or signatures, lithographed or otherwise produced, of such officer or officers of the Corporation as from time to time may be
authorized to sign such instruments on behalf of the Corporation. The Corporation may continue to use for the purposes herein stated the
facsimile signature of any person or persons who shall have been such officer or officers of the Corporation, notwithstanding the fact that he
may have ceased to be such at the time when such instruments shall be issued.
IN WITNESS WHEREOF, United States Fire Insurance Company has caused these presents to be signed and attested by its appropriate officer and its
corporate seal hereunto affixed this 10th day of March, 2016.
KE
UNITED STATES jFMF. iNCIlR ANCE COMPANY
Anthony R. Slirnowicz, Executive Vice President
State of New Jersey}
County of Moms }
On this I& day of March 2016, before me, a Notary public of the State of New Jersey, came the above named officer of United States Fire Insurance
Company, to me personally known to be the individual and officer described herein, and acknowledged that he executed the foregoing instrument and affixed
the seal of United States Fire Insurance Company thereto by the authority of his office. ,(
lea�SONIA SCALA �S/..t �c:cL .
NOTARY PUBLIC OF NEW JERSEY Sonia Scala (Notary Public)
MY COMMISSION EXPIRES 3/25/2019
I, the undersigned officer of United States Fire Insurance Company, a Delaware corporation, do hereby certify that the original Power of Attome of which the
foregoing is a full, true and correct c1
opy is still in force and effect and has not been revoked. 73
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of United States Fire Insurance Company on the day of 20 l�
UNITED STATES FIRE` INSURANCE COMPANY
• •,
Al Wright, Senior Vice President
UNITED STATES FIRE INSURANCE COMPANY
1209 ORANGE STREET, WILMINGTON, DELA WARE 19801
STATEMENT OF ASSETS, LIABILITIES, SURPLUS AND OTHER FUNDS
AT DECEMBER 31, 2018
A,SSETB
Bonds(Amortized Value)................................................................................:..................
1,575,095,694
Preferred Stocks (Market Value) ............................................ _.._.._...... __..............
2,500,000
Common Stocks (Market Value) ........................................... :.........,,.................... .......... ,,.....
1,163,841,710
Mortgage Loans (Market Value) ........................................... ...........................................:....
3,510.000
Cash, Cash Equivalents, and Short Term Investments.............................:.................I...............
477,327,351
Derivatives................................................................ _ ....... _ ............. _......_...................
23,002,739
OtherInvested Assets.....................:............................................. .......... _........... ........ ...... .
216,475,694
Investment Income Due and Accrued...................................................................................
9,006,764
Premiums and Considerations .............. ......................... ---"....... ,..... .......... ............ ......... ......
195,195,701
Amounts Recoverable from Reinsurers ................................................... :.....,.,.:........ ...............
31,104,247
Funds Held by or Deposited with Reinsured Companies............... ................ __ .............. ..
4,482,823
Current Income Taxes Recoverable ................... .......... ........ .....:....................................
1,966.565
Net Deferral Tax Asset .... :.............. :................ ........................ ......... .... .......
161,021,872
Electronic Data Processing Equipment ............ .......................... . ................... ....... ..
4,043,042
Receivables from Parent, Subsidiaries and Affiliates .............................•.._..._...... I..................
138,140,008
OtherAssets .............................. .:.................... .....—............. .... ........ ........... ........
80,113,770
TOTAL ASSETS......................................................................... ........ .. S
4,085,827,970
LIABILITIES, SURPLUS & OTHER FUNDS
Losses (Reported Losses Not of Reinsurance Ceded and Incurred
But Not Reported Losses)...........................................................................................1.......
1,559,822,694
Reinsurance Payable on Paid Losses and Loss Adjustment Expenses .................:..............................
41,I78,534
Loss A4justment Expenses ................................ .............................................. ........... .... :..
396,839,696
Commissions Payable, Contingent Commissions and Other Similar Charges ......................................
3,516,082
Other Expenses (Excluding Taxes, Licenses and Fees).................................................................
48,794,043
Taxes, Licenses and Fees (Excluding Federal Income Taxes)._ ............................. ....
.................. .
20,335,069
UnearnedPremiums..........................................................................................................
517,688,149
AdvancePremium ........................... :................ .......................... ....... ........... ..... ,...
5,194,006
Ceded Reinsurance Premiums Payable.................................................................................
23,630,611
Funds Held by Company under Reinsurance Treaties ..................................... ...........................
20,864,701
Amounts Withheld by Company for Account of Others................................................................
76,666,809
Provision for Reinsurance ...................... ..... ....... .............. ........... :........ ....................... ..........
627,927
Payable to Parent, Subsidiaries and Affiliates .......................... _..................... ................:............
10,488,505
OtherLiabilities.................................................. ................. ........ ....... ............... ...._.-
52,539,781
TOTAL LIABILITIES....._........................................................ S
2,768,186.596
CommonCapital Stock ......... ..................................................... .................; ....................
13,560,000
Gross Paid In and Contributed Surplus....................................................................................
1,246,294,940
UnassignedFunds(Surplus).................................................................................. ...._ _..
57.786,434
Surplus as Regards Policyholders .................................. ............ ....
1,317,641,374
TOTAL LIABILTIIES, SURPLUS & OTHER FUNDS ................ ............ S .
4.085.827,970
1, Carmine Scaglione, Senior Vice President and Controller of UMTED STATES FIRE INSURANCE COMPANY, certify that the foregoing is a fair statement of
Assets, Liabilities, Surplus and Other Funds of this Company, at the close of business, December 31, 2018, as reflected by its books and records and as reported in its
statement on file with the Insurance Department of the, State orDelaware.
IN TESTIMONY WHEREOF, I have set my hand and affixed the seal of the Company, this 5th day of March, 2019.
UNITED STATES FIRE INSURANCE COMPANY
MEMORANDUM
City of Venice
Finance Department
TO: Ed Lavallee, City Manag4r
FROM: Peter A. Boers, Procurement Manager
THROUGH: Linda Senne, Finance Director
DATE: June 7, 2019
COUNCIL APPROVAL: Yes
MEETING DATE: June 25, 2019
STRATEGIC PLAN GOAL: Provide Efficient, Responsive Government with High Quality Services
SUBJECT: Approval of a Unit Price Contract for the Water Meter Replacement Program Phase 4.
Background: At the request of the Utilities Department, Procurement issued Invitation to Bid (ITB)
3097-19 for replacement of 2,725 potable water meters in Fiscal Year 2019 with the option to add up to
5,130 additional units during Fiscal Year 2020.
On May 2, 2019, the City received two (2) bids. National Metering Services, Inc., of Kearney, New Jersey
was the lowest responsive and responsible bidder. The Utilities Department has reviewed the bid
responses and concurs with this recommendation.
Phase 4 of the Water Meter Replacement Program will provide both residential and commercial customers
with new ultra -sonic E- series Badger water meters. These new meters are more cost effective and can
provide hourly consumption history. These meters range from Y4" to 6". The new meters carry a 20 year
accuracy warranty, doubling the warranted lifespan of the current meters - allowing exchanges to occur
every 20 years, as opposed to every 10 years.
The cost for replacement of 2,725 water meters is approximately $123,000.
Requested Action: Approval of a contract with National Metering Services, Inc., at the unit prices bid in
response to ITB 3097-19 for the Water Meter Replacement Program, Phase 4.
City Attorney Review/Approved: Yes
Risk Management Review: Yes
Finance Department Review/Approved: Yes
Funds Availability (account number): Funds are appropriated in the department budget for Fiscal Year 2019.