1 INNOVATIVE CONSERVATION PROGRAM AGREEMENT
Agreement No. XXXXX
This Subaward Agreement, hereinafter referred to as Agreement, is between The Metropolitan Water District of Southern California (Metropolitan) and City of Fullerton (Grant Recipient). Metropolitan and Grant Recipient may be collectively referred to as “Parties” and individually as “Party”.
Explanatory Recitals
1. Metropolitan, through its Innovative Conservation Program (Program), provides financial incentives for research that document water savings and reliability of innovative water savings devices, technologies and strategies that save water and help achieve regional water supply reliability. This Program was established per authorization detailed in Board Letter No. 8-8 in December 2005.
2. Metropolitan has been awarded funding from the Southern California Gas Company for this Program.
3. Grant Recipient was selected through a competitive Request for Proposal. Metropolitan and Grant Recipient agree to enter into an agreement for funding the (“Project”).
NOW, THEREFORE, in consideration of the promises and covenants hereinafter set forth, the Parties do agree as follows:
Terms of Agreement
1. Project Description
a. Grant Recipient shall carry out the Project as described Exhibit A [Scope of Work], which is hereby incorporated into this Agreement.
b. Grant Recipient shall provide the Project deliverables according to the timetable set forth in Exhibit B [Deliverables].
2. Agreement Term
This Agreement shall be effective on April 1, 2023 and terminate on December 31, 2024.
Extensions of time to complete all or portions of the Project, including any required deliverables, may be permitted at the sole discretion of Metropolitan and shall be documented in writing in the form of an amendment to this Agreement signed by all parties.
3. Agreement Administrators
a. Christina Andry is appointed Agreement Administrator for Metropolitan for the purpose of administering this Agreement.
b. The Agreement Administrator appointed by Grant Recipient for the purpose of administering this Agreement is Yvette Hanna.
2 c. The designated Agreement Administrators may be changed by providing written notice to the other Party. Any communication required to administer this Agreement shall be in writing as follows:
Either Party may change such address by giving notice to the other Party as provided herein.
If to Metropolitan: If to Grant Recipient:
The Metropolitan Water District of Southern
California
P. O. Box 54153
Los Angeles, CA 90054-0153
Attention: Christina Andry
Or by email to [email protected]
City of Fullerton Public Works Department
303 W. Commonwealth
Fullerton, CA 92832
Attention: Yvette Hanna
Or by email to
[email protected]
4. Financial Incentive to Grant Recipient, Billings and Payments a. Metropolitan’s financial contribution for the Project is not to exceed $50,000. Grant Recipient shall be responsible for all costs in excess of this amount. b. Metropolitan shall reimburse Grant Recipient only after a progress report and associated invoice has been received and approved by Metropolitan as in compliance with the requirements of this Agreement and as scheduled in Exhibit B. Twenty five (25) percent of total grant award is allocated for the final deliverable/final report which must be approved by Metropolitan.
c. Upon discovery of a breach of contract by Grant Recipient, Metropolitan shall provide Grant Recipient a notice of breach indicating that Grant Recipient has 45 days to cure the breach. Breach of contract shall include, but not be limited to failure of the Grant Recipient to use any of the funds advanced by Metropolitan, failure of the Grant Recipient to complete work on the Project, failure of the Grant Recipient to provide the progress reports and invoices as scheduled, or failure of the Grant Recipient to provide final report by the date shown on Exhibit B. If the breach of contract is not cured within 45 days of the notice, Metropolitan may terminate the Agreement. Upon termination, Grant Recipient shall return all funding paid to Grant Recipient under this Agreement to Metropolitan within 30 days of receiving written notice of termination from Metropolitan.
d. All invoices related to the Project must be submitted by Grant Recipient to Metropolitan by May 30, 2024, to be considered for payment under the provisions of this agreement. Invoices received after May 31, 2024 will not be paid. e. Grant Recipient shall submit an invoice to Metropolitan Accounts Payable only after Metropolitan Agreement Administrator confirms that the progress report to the deliverable indicated on Exhibit B is acceptable. Invoices to Metropolitan will be paid 30 days after receipt of the invoices.
f. Invoices shall include the following affirmation:
3 “By signing this invoice, I certify that the deliverable described above was met and the work described herein is an accurate and correct record of services performed for Metropolitan under this Agreement and these activities have not been billed on any other client invoice.”
5. Responsibilities and Ownership
a. All materials and supplies necessary to implement the Project shall be the exclusive property of the Grant Recipient. Metropolitan shall have no ownership, right, title, security interest, or other interest in any Project facilities, materials, or supplies, nor any rights, duties, responsibilities for operation or maintenance thereof. b. Grant Recipient is responsible for assuring that the Project complies with all federal, state, and local requirements including, without limitation, compliance with the California Environmental Quality Act.
c. Grant Recipient is solely responsible for the performance of its staff or representatives in complying with the terms of this Agreement and for the proper allocation of funds provided by Metropolitan under this Agreement.
d. Grant Recipient shall secure and maintain all licenses or permits required by law and shall comply with all ordinances, laws, orders, rules and regulations pertaining to the work,
e. Grant Recipient agrees to provide data and information as required to implement the Project and evaluate Projects implementation, costs, and water savings. Grant Recipient also agrees to provide high-resolution photos that are representative of the project being conducted for publicity purposes when requested by Metropolitan. Grant Recipient will make available for inspection to Metropolitan, upon reasonable advance notice, all records, computer files and other documents relating to the Project. Such documents shall be available for inspection for a period of three years following Agreement termination.
f. Grant Recipient shall provide all necessary services and materials for the Project including, but not limited to program administration, promotion, marketing materials, data collection, analysis, and reporting.
g. Grant Recipient shall use reasonable efforts to perform the work set forth in the Agreement substantially in accordance with the terms and conditions of this Agreement.
6. Intellectual Property
a. Grant Recipient owns all intellectual property pursuant to this individual agreement, including the right of copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. However, Grant Recipient grants The Metropolitan Water District of Southern California and its member public agencies and Southern California Gas Company a royalty-free, non-exclusive and irrevocable right to use all intellectual property created or produced under this Agreement, including the right to reproduce, publish or otherwise use the intellectual
4 property for their purposes.
b. As used herein, the term “intellectual property” includes, but is not limited to, all inventions, patents, copyrightable subject matter, copyrights, test data, trade secrets, other confidential information and software. Grant Recipient shall notify Metropolitan, in writing, of all intellectual property conceived or developed in the course of Project development and operation under this Agreement.
c. Grant Recipient shall cooperate in the execution of all documents necessary to protect right of the funding agencies to intellectual property under this Agreement, as requested by Metropolitan. When requested by Metropolitan or Southern California Gas Company, upon termination of this Agreement, Grant Recipient shall furnish a copy of all documents and other tangible media containing intellectual property developed by Grant Recipient during the course of this Agreement, including all prototypes and computer programs.
7. Indemnity
a. Metropolitan shall defend, indemnify, and hold harmless Grant Recipient from and against all claims, suits, or causes of action for injury to any person or damage to any property arising out of, pertaining to, or related to Metropolitan’s negligence, recklessness or willful misconduct in the performance of this Agreement. b. Grant Recipient shall defend, indemnify, and hold harmless Metropolitan, their officers, employees, and agents, from and against all claims, suits, or causes of action for injury to any person or damage to any property arising out of, pertaining to, or related to Grant Recipient’s negligence, recklessness or willful misconduct in the performance of this Agreement, including any claims, suits, or causes of action by any
employee of Grant Recipients and/or sub-consultants relating to his or her employment status with Metropolitan and/or rights to employment benefits from Metropolitan.
c. Grant Recipient shall include the following language in its agreement with any consultant retained by Grant Recipient to work on the Project: “Consultant agrees at its sole cost and expense to protect, indemnify, defend, and hold harmless Metropolitan, t he ir Boar d of d i rect o rs , officers, employees, and agents, from and against any and all claims and liability of any kind (including, but not limited to, injury or death to any person, damages to property, natural resources or to the environment, or water quality problems) that arise out of or relate to Grant Recipient’s approval, construction, operation, repair or ownership of the Project. Such indemnity shall include all damages and losses related to any claim made, whether or not a court action is filed, and shall include attorney’s fees, administrative and overhead costs, engineering and consulting fees and all other costs related to or arising out of such claim or asserted liability.”
8. Insurance
a. Grant Recipient shall procure and maintain for the duration of this Agreement insurance or a program of self-insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work
5 hereunder by the Grant Recipient or its agents, representatives, or employees. b. If using commercial insurance, Grant Recipient shall sustain proof of insurance coverage in an updated ACORD form, attached hereto as Exhibit C and incorporated by reference, during the term of this Agreement. Failure to provide the updated insurance ACORD form may result in the withholding of Grant Recipient’s payment. Grant Recipient shall list the agreement number on the ACORD form and email to Metropolitan’s Agreement Administrator as indicated on Section 3. c. Minimum Scope of Insurance
Coverage shall be at least as broad as:
i. Insurance Services Office Commercial Liability coverage (occurrence Form CG0001).
ii. Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1, (any auto).
iii. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
d. Minimum Limits of Insurance
Grant Recipient shall maintain limits no less than: General Liability: Including operations, products and completed operations as applicable, $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the project or location, or the general aggregate limit shall be twice the required occurrence limit.
a. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
b. Workers’ Compensation: Shall be furnished in accordance with statutory requirements of the State of California and shall include Employer’s Liability coverage of $1,000,000 per accident for bodily injury or disease.
e. Deductibles and Self-Insurance Retentions: Any deductibles or self-insured retentions must be declared to and approved by Metropolitan. At the option of Metropolitan, either:
the insurer shall reduce or eliminate such deductibles or self-insured retentions as respect to Metropolitan, its officers officials, employees, agents and volunteers; or the Grant Recipient shall provide a financial guarantee satisfactory to Metropolitan guaranteeing payment of losses and related investigations, claim administration and defense expenses. f. Verification of Coverage: Grant Recipient shall furnish Metropolitan with original certificates and amendatory endorsements effecting coverage required by this clause.
The endorsements and certificates are to be received and approved by Metropolitan prior to the commencement of work. Metropolitan reserves the right to require complete,
6 certified copies of all required insurance policies, including endorsements effecting coverage, and coverage binders required by these specifications at any time. g. Acceptability of Insurers: Insurance is to be placed with California admitted insurers with a current A.M. Best’s rating of no less than A:VIII. A non-admitted carrier may be used with prior approval from Metropolitan, with an A.M. Best rating of no less than A:
X. An exception to these standards will be made for the State Compensation Insurance Fund when not specifically rated.
h. General Liability and Automobile Liability Endorsements: The commercial general liability policy and automobile policies are to contain, or be endorsed to contain, the following provisions:
i. Metropolitan, their officers, officials, employees and agents are to be covered as additional insureds as respect to liability arising out of work or operations performed by or on behalf of the Grant Recipient; or automobiles owned, leased, hired or borrowed by the Grant Recipient.
ii. For any claims related to this project, the Grant Recipient’s insurance coverage shall be primary insurance as respect to Metropolitan, their officers, officials, employees and volunteers. Any insurance or self-insurance maintained by Metropolitan, its officers, officials, employees or agents shall be excess of the Grant Recipient’s insurance and shall not contribute with it. iii. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to Metropolitan.
iv. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code.
i. Other Endorsements and Insurance Provisions
i. All rights of subrogation under the property insurance policy (if any) have been waived against Metropolitan.
ii. The workers’ compensation insurer, agrees to waive all rights of subrogation against Metropolitan for injuries to employees of the insured (Grant Recipient) resulting from work for Metropolitan or use of Metropolitan’s premises or facilities.
iii. If General Liability, Pollution and/or any Asbestos Pollution Liability and/or professional liability or Errors & Omissions coverage are written on a claims- made form:
1) The “Retro Date” must be shown, and must be before the date of the contract or the beginning of contract work.
7 2) Insurance must be maintained for at least five (5) years after completion of the contract work. On Metropolitan’s request, Grant Recipient shall provide evidence of insurance verifying that coverage is/was in effect during said five-year period.
3) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a “Retro Date” prior to the contract effective date, the Grant Recipient must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work. 4) A copy of the claims reporting requirements must be submitted to Metropolitan for review.
9. Audit
a. Grant Recipient shall be responsible for ensuring the accuracy and propriety of all billings and shall maintain all supporting documentation for the period specified below. b. Metropolitan will have the right to audit Grant Recipient’s invoices and all supporting documentation for purposes of compliance with this Agreement during the term of this
Agreement and for a period of three years following completion of services under this Agreement.
c. Upon reasonable notice from Metropolitan, Grant Recipient shall cooperate fully with any audit of its billings conducted by Metropolitan and shall permit access to its books, records and accounts for this agreement as may be necessary to conduct such audits.
10. Prohibited Relationships with Sanctioned Countries and Persons Grant Recipient represents and warrants that both 1) Grant Recipient and 2) to Grant Recipient’s knowledge, its directors, officers, employees, subsidiaries and sub-consultants, are not engaged in any business transactions or other activities prohibited by any laws, regulations or executive orders relating to terrorism, trade embargoes or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), the Patriot Act, and the regulations administered by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury, including those parties named on OFAC’s Specially Designated Nationals and Blocked Persons List. Grant Recipient is in compliance with the regulations administered by OFAC and any other Anti-Terrorism Laws, including the Executive Order and the Patriot Act. In the event of any violation of this section, Metropolitan shall be entitled to immediately terminate this Agreement and take such other actions as are permitted or required to be taken under law or in equity.
8 11. Equal Employment Opportunity, Affirmative Action, and Notification of Employee Rights Under the NLRA
Metropolitan is an equal opportunity employer and a federal contractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a), and 41 CFR 60-741.5(a) and that these regulations are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status, or disability. The parties additionally agree that, as applicable, they will abide by the written affirmative action program requirements of 41 CFR 60-1.40, 41 CFR 60-300.40, and 41 CFR 60-741.40. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws. The parties further agree that, as applicable, they will abide by the requirements of Federal Acquisition Regulation Clauses 52.222-26 (Equal Opportunity), 52.222-35 (Equal Opportunity for Veterans), 52.222-36 (Affirmative Action for Workers with Disabilities), and 52.222-40 (Notification of Employee Rights Under the National Labor Relations Act) and that these regulations are incorporated herein by reference. Grant Recipient agrees to submit to Metropolitan evidence of compliance with this article, as applicable, within 30 days of a request.
12. Force Majeure Events
a. Excuse to Performance: In addition to specific provisions of the Agreement, lack of performance by any Party shall not be deemed to be a breach of this Agreement, where delays or defaults are due to acts of God, or the elements, casualty, strikes, lockouts, or other labor disturbances, acts of the public enemy, orders or inaction of any kind from the government of the United States, the State of California, or any other governmental, military or civil authority (other than Metropolitan, or another party to this Agreement), war, insurrections, riots, epidemics, landslides, lightning, droughts, floods, fires, earthquakes, civil disturbances, freight embargoes, or any other inability of any Party, whether similar or dissimilar to those enumerated or otherwise, which are not within the control of the Party claiming such inability or disability, which such Party could not have avoided by exercising due diligence and care and with respect to which such Party shall use all reasonable efforts that are practically available to it in order to correct such condition (such conditions being herein referred to as "Force Majeure Events").
b. Responding to Force Majeure Events: The Parties agree that in the event of a Force Majeure Event which substantially interferes with the implementation of this Agreement, the Parties will use their good faith efforts to negotiate an interim or permanent modification to this Agreement which responds to the Force Majeure Event and maintains the principles pursuant to which this Agreement was executed.
13. Miscellaneous
a. This Agreement may be amended by written mutual agreement executed by both Parties. Any alteration or variation of the terms of this Agreement will not be valid unless made in writing and signed by both Parties. This Agreement constitutes the entire agreement between the Parties.
9 b. This Agreement will inure to the benefit of and be binding upon Metropolitan and Grant Recipient and their respective successors. This Agreement is not assignable by either Party in whole or in part.
c. The partial or total invalidity of one or more parts of this Agreement will not affect the intent or validity of this Agreement.
d. No delay or failure by either party to exercise or enforce at any time any right or provision of this Agreement shall be considered a waiver thereof or of such party’s right thereafter to exercise or enforce each and every right and provision of this Agreement. A waiver to be valid shall be in writing but need not be supported by consideration. No single waiver shall constitute a continuing or subsequent waiver.
e. This writing contains the entire agreement of the parties relating to the subject matter hereof; and the parties have made no agreements, representations, or warranties either written or oral relating to the subject matter hereof which are not set forth herein. f. This Agreement will be deemed a contract under the laws of the State of California, and for all purposes will be interpreted in accordance with such laws. Metropolitan and Grant Recipient hereby agree and consent to the exclusive jurisdiction of the courts of the State of California, and that the venue of any action brought hereunder will be in Los Angeles County, California
Attachments incorporated in this Agreement include:
Exhibit A – Project Description [Scope of Work negotiated from Proposal] Exhibit B – Deliverables [Deliverable Schedule negotiated from Proposal] Exhibit C—Insurance ACORD Form (provided by the grant recipient)
10 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date last written below.
CITY OF FULLERTON THE METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA
Adel Hagekhalil
General Manager
By: By:
Richard D. Jones Brad Coffey
City Attorney Group Manager, Water Resource Management Date: Date:
APPROVED AS TO FORM:
Marcia Scully
General Counsel
By: By:
Eric Levitt
City Manager
Mark Parsons
Senior Deputy General Counsel
Date:
Date:
11 INNOVATIVE CONSERVATION SUBAWARD PROGRAM AGREEMENT
Agreement No. XXXXX
Exhibit A: Scope of Work
Scope of Work
This Scope of Work for this project is for a pilot study for Olea Edge Analytics ‘Meter Health Analytics’ (MHA) devices to be installed on 50 of the City of Fullerton’s 50 largest water meters. These devices or sensors will perform diagnostics to monitor health and performance of each meter which include the following objectives:
Identify underperforming large commercial/industrial meters to assist in reducing apparent losses Determine specific cause of meter failure or defect
Make recommendation(s) to repair deficient meters
Site Survey Reports will be prepared for each MHA location that include pictures of existing meter and vault conditions, assessment of safety protocol for installation activities. Olea will provide Fullerton with a Draft Report documenting conditions for each meter upon MHA installation.
Fullerton’s staff will be trained by Olea to remove and reinstall the MHA sensors in case of emergency or should meter repairs be required. Additionally, Fullerton will be provided with access and training for the ‘Utility Dashboard’ to monitor data collected.
A final report will be prepared by Olea after the meters have been repaired and post-repair analysis has been completed. This report will document findings, validate the repairs completed have returned the meter back to proper operating condition with samples of data presented to support report findings. The final report will also provide calculations and estimates of the additional water measured due to the repairs.
12 INNOVATIVE CONSERVATION SUBAWARD PROGRAM AGREEMENT
Agreement No. XXXXX
Exhibit B: Deliverables
Deliverables and Payment (maximum payment: $50,000)
Deliverable 1 (7/31/23) ($37,500): Installation of sensors & edge computers on meters Deliverable 2 (5/27/24) ($12,500): Final report
Contact person for questions regarding deliverables:
Yvette Hanna
[email protected]
303 W. Commonwealth
Fullerton, CA 92832
O: 714-738-6563
Invoice for payment will be accepted and processed only after Metropolitan approves the report for the deliverables.
13 INNOVATIVE CONSERVATION SUBAWARD PROGRAM AGREEMENT
Agreement No. XXXXX
Exhibit C: Insurance
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