DMS 42165372.2
PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF RIALTO/THE RIALTO UTILITY AUTHORITY AND 120 WATER AUDIT, INC.
THIS PROFESSIONAL SERVICES AGREEMENT (herein “Agreement”) is made and entered into this 12 th day of March 2024, by and between the Rialto Utility Authority, a joint powers authority (“City”), and 120 Water Audit, Inc. (“Consultant”). City and Consultant are sometimes individually referred to as “Party” or collectively as “Parties”.
RECITALS
A. City has sought the performance of professional services related to compliance with the Federal Environmental Protection Agency’s Lead and Copper Rule Revisions, as defined and described, particularly in Article 1 of this Agreement.
B. Following the submission of a proposal for the performance of the services defined and described particularly in Article 1 of this Agreement, Consultant was selected by the City to perform those services.
C. Pursuant to Chapter 2.48 of the Rialto Municipal Code, City has authority to enter into and execute this Agreement.
D. The Parties desire to formalize the selection of Consultant for the performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly def ined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, Consultant shall provide those professional services associated with compliance with the Federal Environmental Protection Agency’s Lead and Copper Rule Revisions, and as specified in the “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by this reference, which services may be referred to herein as the “services” or “work” hereunder.
As a material inducement for City to enter into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, it meets all local, state, and federal requirements in performing the services, and it is experienced in performing the work and services contemplated herein.
Consultant shall at all times faithfully, competently, and to the best of its ab ility, Page - 2
experience, and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more professional firms performing similar work under similar circumstances.
1.2 Consultant’s Proposal.
The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; and (3) the Consultant’s signed, original proposal submitted to the City (“Consultant’s Proposal”), (collectively referred to as the “Contr act Documents”). The Contract Documents and Accepted Proposal shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the Scope of Services, Consultant’s Proposal, and/or this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any federal, state, or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 Licenses, Permits, Fees, and Assessments.
Consultant shall obtain, at its sole cost and expense, such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreement, and shall indemnify, defend, and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City hereunder.
1.5 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. If Consultant discovers any latent or unknown conditions that will materially affect the performance of the services hereunder, then Consultant shall immediately inform the City of such fact and shall not proceed except at City’s risk until written instructions are received from the Contract Officer.
Page - 3
1.6 Care of Work.
Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies, and/or other components thereof, to prevent losses or damages, and shall be responsible for all such damages to persons or proper ty, until acceptance of the work by City, except such losses or damages as may be caused by City’s or it’s other contractors’ own negligence.
1.7 Prevailing Wages.
Consultant is aware of the requirements of California Labor Code Section 1720, et seq. and 1770, et seq., as well as California Code of Regulations, Title 8, Section 1600, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “Public Works” and “Maintenance” projects. It is the understanding of City and Consultant that the Prevailing Wage Laws may not apply to this Agreement because the Agreement does not involve any services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder. However, Consultant shall defend, indemnify, and hold City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
1.8 Further Responsibilities of Parties.
Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless specified in this Agreement, neither Party shall be responsible for the service of the other.
1.9 Additional Services.
City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such extra work or change may be undertaken unless a written order is first given by the Contract Officer to the Consultant, describing in detail the extra work or change and the reason(s) therefor and incorporating therein any adjustment in (i) the Contract Sum for the actual cost of the extra work or change, and/or (ii) the time to perform this Agreement, which said adjustments shall be reflected in an amendment to the Agreement subject to the written approval of the Parties. Any amendment to this Agreement shall be reviewed and approved by the City Manager and Consultant in writing. In accordance with Rialto Municipal Code section 2.48.180, increases in compensation of this Agreement may be approved by the City Manager provided: (a) the initial Contract Sum was less than One Hundred Thousand Dollars ($100,000) and the amended Contract Sum when considering any or all amendments will not exceed One Hundred Thousand Dollars ($100,000); or (b) the agreement was approved by the City Council and the increases in compensation Page - 4
taken either separately or cumulatively do not exceed One Hundred Thousand Dollars ($100,000). Any greater increases, taken either separately or cumulatively must be approved by the City Council. Payment for additional services rendered by Consultant under this Agreement requires the submission of the actual costs of Consultant’s performance of the extra work with the invoice(s) for the extra work claim(s), as provided in Section 2.4. It is expressly understood by Consultant that the provisions of this Section shall not apply to services spe cifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may in its sole and absolute discretion have similar work done by other contractors.
No claim for an adjustment in the contract amount or time for performance shall be valid unless the procedures established in this Section are followed.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant t
he amounts specified in the “Cost Proposal” (also referred to herein as the “Schedule of Compensation”) attached hereto as Exhibit “B” and incorporated herein by this reference. Upon commencement of this Agreement the total compensation, including reimbursement for actual expenses, shall not exceed ONE HUNDRED SIXTY- FOUR THOUSAND SIX HUNDRED FIFTY DOLLARS AND NO CENT ($164,650.00) (the “Contract Sum”). The Contract Sum may also be increased for additional services pursuant to Section 1.9.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services; (iii) payment for time and materials based upon the Consultant’s rates as specified in the Schedule of Compensation, provided that time estimates are provided for the performance of sub tasks, but not exceeding the Contract Sum; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedul e of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City. Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
Page - 5
2.4 Invoices.
Unless invoiced on a different schedule, as set forth in the Cost Proposal, each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City’s Director of Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses permitted under this Agreement .
Consultant shall not invoice City for any duplicate services performed by more t han one person.
City may independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within thirty (30) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant ack nowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission.
2.5 No Waiver.
Review and payment by City to Consultant of any invoice for work performed by Consultant pursuant to this Agreement shall not be deemed a waiver of any defects in work performed by Consultant or of any rights or remedies provided herein or any applicable law.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of
a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “C” and incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer.
3.2 Force Majeure.
The time period(s) specified in the Schedule of Performance or the Scope of Services for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall, within Page - 6
ten (10) days of the commencement of such delay, notify the Contract Officer in writing of the causes of the delay. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant’s sole remedy being extension of the Agreement pursuant to this Section.
3.3 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this A
greement shall continue in full force and effect through completion of the services (the “Project”), and as identified in the Scope of Services, Exhibit “A”.
ARTICLE 4. COORDINATION OF WORK
3.1 Representatives and Personnel of Consultant.
The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
Matthew Boes Vice President of Sales
(Name) (Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing Principals were a substantial inducement for City to enter into this Agreement. Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be under the direction and control of the Principals.
For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s st aff and subcontractors, if any, assigned to perform the services required under this Agreement.
3.2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care, or any other benefits which may otherwise accrue to City’s employees.
Consultant expressly waives any claim Consultant may have to any such rights.
Page - 7
3.3 Contract Officer.
The Contract Officer shall be the City Manager or other such person designated by the City Manager. It shall be the Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Contract Officer.
Unless otherwise s pecified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
3.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner, mode, or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service.
Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant.
3.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability, and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement.
Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City.
Notwithstanding the foregoing, Consultant may engage subcontractors to perform or to support Consultant’s performance of portions of the services provided or made available to substantially all of Consultant’s customers (e.g., data hosting, water testing, and other service providers), provided that Consultant may not subcontract to a subcontractor dedicated to City ’s account any cus tom s ervices or custom -created d eliverables specifically purchased only by City (and set forth in a separate statement of work) without City’s prior written consent, such consent not being unreasonably withheld, delayed, or conditioned. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encum bered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City , provided that Consultant may assign, convey, or transfer (whether by contract, merger, or operation of law) (collectively “assign” and its cognates) without City’s consent any or all of Consultant’s rights or obligations under this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Consultant’s assets or equ ity, provided that (a) Consultant reasonably believes the assignee has the operational ability to perform Consultant ’s obligations under this Page - 8
Agreement, or (b) if the assignee is an entity with whom City is prohibited by law or regulation from conducting business, then City may terminate this Agreement . In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages.
The Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees, and agents of City:
(a) Comprehensive General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury, and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit.
(b) W
orker’s Compensation Insurance. A policy of worker’s
compensation insurance in such amount as will fully comply with the laws of the State(s) applicable to Consultant and which shall indemnify, insure, and provide legal defense for both the Consultant and the City against any loss, claim, or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Consultant in the course of carrying out the work or services contemplated in this Agreement.
(c) A
utomotive Insurance (Form CA 0001 (Ed 1/87) including “any auto” and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than $1,000,000. Said policy shall include coverage for owned, non- owned, leased, and hired cars.
(d) P rofessional Liability . Professional liability insurance appropriate to the Consultant’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to services performed under this Agreement. The insurance must be maintained for at least 5 consecutive years following the completion of Consultant’s services or the termination of this Agreement. During this additional 5 -year period, Consultant shall annually and upon request of the City submit written evidence of this continuous coverage.
(e) A
dditional Insurance. Policies of such other insurance, as may be required in the Special Requirements.
Page - 9
5.2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees, and agents as additional insureds, and any insurance maintained by City or its officers, employees, or agents shall apply in excess of, and not contribute with, Consultant’s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees, and agents and their respective insurers. The insurance policy must specify that where the primary insured does not satisfy the self -insured retention, any additional insured may satisfy the self -insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any Party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled, the Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Consultant has provided the City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of all required insurance policies at any time.
Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Consultant performs; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired or borrowed by Consultant. Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
The Consultant agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages to any persons or property resulting from the Consultant’s activities or the activities of any person or persons for which the Consultant is otherwise responsible nor shall it limit the Consultant’s indemnification liabilities as provided in Section 5.3.
5.3 Indemnification.
To the full extent permitted by law, Consultant agrees to indemnify, defend, and hold harmless the City, its officers, employees and agents (“Indemnified Parties”) against any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any third-party person, firm or entity arising out of or in connection with the negligent performance of the work, operations, or activities provided herein by Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), arising from Consultant’s Page - 10
reckless or willful misconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant, or condition of this Agreement, and in connection therewith:
(a) Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its officers, agents, or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its of ficers, agents or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents, or employees, all reasonable costs and expenses incurred by the City, its officers, agents, or employees in such action or proceeding, including but not limited to, reasonable legal costs and attorneys’ fees.
This indemnification includes claims or liabilities arising from any negligent or wrongful act, error or omission, or reckless or willful misconduct of Consultant in the performance of professional services hereunder. The provisions of this Section do not apply to claims or liabilities to the extent occurring as a result of City’s negligence or willful acts or omissions. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.
Notwithstanding the foregoing, to the extent that the Consultant’s services are subject to California Civil Code Section 2782.8, the above indemnity, including the cost to defend, shall be limited to the extent required by Civil Code Section 2782.8.
5.4 Sufficiency of Insurer or Surety.
Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City (“Risk Manager”) due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager Consultant.
5.5 Limitation of Liability.
Page - 11
i. EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT, BREACH OF
CONFIDENTIALITY, AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL CONSULTANT’S TOTAL AGGREGATE LIABILITY ARISING OUT OF
OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR
UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS
PAID BY CITY UNDER THE ORDER FORM FOR THE SERVICES FOR WHICH LIABILITY IS CLAIMED IN THE TWELVE (12) MONTHS
IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. ii. Exclusion of Consequential Damages. EXCEPT FOR INTELLECTUAL
PROPERTY INFRINGEMENT, BREACH OF CONFIDENTIALITY, AND
INDEMNIFICATION OBLIGATIONS, AND NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS AGREEMENT, THE PARTIES EXPRESSLY
AGREE THAT IN NO EVENT SHALL CONSULTANT HAVE ANY LIABILITY
TO CITY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES OF
ANY KIND OR NATURE HOWEVER CAUSED, INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF GOODWILL, SUBSTITUTE GOODS
OR SERVICES, WORK STOPPAGE, DATA LOSS, LOST PROFIT OR
COMPUTER FAILURE, INCURRED BY CITY OR ANY THIRD PARTY,
WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF
LIABILITY, WHETHER OR NOT CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and require subcontractors to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services.
Any and all such documents shall be maintained in accordance with accounting principles standard in the industry and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of Consultant , including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of 3 years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest.
6.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly Page - 12
concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
Customer shall own all Deliverables . “Deliverables” means (a) the deliverables (e.g., custom reports) specified in an applicable Scope of Services (attached hereto or as entered into and signed by both parties during this Agreement) that are expressly created by Consultant for City and (b) all reports provided or made accessible to City pursuant to the Scope of Services.
B. Ownership and Use of Data.
i. Definitions. “City Data” means all electronic data (including, but not limited to, Personal Information, as defined under applicable data privacy law) uploaded by City to the Consultant Platform. “ Derivative Data” means collectively, (i) information derived or generated from or based on City Data, but not containing City Data, (ii) City Data which has been de -identified or anonymized so that it no longer identifies a specific individual; and, (iii) City Data which has been aggregated with other data but which no longer identifies a specific individual or City. “Usage Data” means statistical data related to City’s access to and use of the SaaS Services and data derived from it, that is used by Consultant, including to compile statistical and performance information related to the provision of the Services and operation of the Consultant Platform. “Consultant Platform” means Consultant’s proprietary online hosted software platform, website, operating systems, hardware, and other technical resources used by Consultant to provide the SaaS Services.
ii. Ownership of City Data. As between City and Consultant, City owns all City Data.
iii. Use of City Data. City hereby grants Consultant and its contractors a limited, nonexclusive right and license to use all City Data during this Agreement, and, after expiration or termination as permitted herein.
iv. Derivative Data and Usage Data. Consultant shall irrevocably own all Derivative Data and Usage Data and may use or disclose it in any way it chooses. This Section 6.3 shall survive any expiration or termination of this Agreement.
Page - 13
v. Use of City Data after Expiration or Termination. Upon City’s request within thirty (30) days after the expiration or termination of this Agreement, Consultant will provide City with a copy of City Data held by Consultant. Upon expiration of such thirty (30) day period, Consultant shall convert City’s account t o an inactive status. Consultant may, but shall not be obligated to, delete all City Data after City’s account converts to inactive status. The confidentiality obligations as are set forth in this Section 6.3 shall remain in force and effect at all times d uring this Agreement, and (i) with respect to Confidential Information that constitutes a trade secret under applicable law, for so long as such trade secret status has not been lost; and (ii) with respect to Confidential Information that does not constitute a trade secret, for five (5) years after termination or expiration of this Agreement, and (iii) with respect to Personal Information held by Consultant, forever.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or en tities other than City without prior written authorization from the Contract Officer. (b) Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City At torney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena.
(c) If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.
(d) Consultant shall promptly notify City should Consultant, its officers , employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant.
However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
Page - 14
7.1 California Law.
This Agreement shall be interpreted, construed, and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, Eastern Division.
7.2 Disputes; Default.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default, this timeframe being no less than thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall proceed with payment on the invoices only when the default is cured. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City ’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts set forth in Exhibit B, the payment of which may be in dispute hereunder. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non- defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
Page - 15
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
7.6 Legal Action.
In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obt ain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Agreement except as specifically provided in the following Section 7.8 for termination for cause. City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of the Consultant , the period of notice may be such shorter time as may be determined by the Contract Officer, provided that the right to cure set forth in Section 7.2 shall apply if the notice of termination is for cause. Upon the effective date of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to the effective date of termination and for any services auth orized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event of termination without cause pursuant to this Section, the City need not provide the Consultant with the opportunity to cure pursuant to Section 7.2.
7.8 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance wi th the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds (up to 125%) the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set -off or partial payment of the amounts owed the City as previously stated.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or Page - 16
any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
Additionally, pursuant to Rialto Municipal Code section 2.48.145, Consultant represents that it has disclosed whether it or its officers or employees is related to any officer or employee of the City by blood or marriage within the third degree which would subject such officer or employee to the prohibition of California Government Sections 87100 et. seq., Fair Political Practices Commission Regulation Section 18702, or Government Code Section 1090. To this end, by approving this Agreement, Consultant attests under penalty of perjury, personally and on behalf of Consultant, as well its officers, representatives, that it/they have no relationship, as described above, or financial interests, as such term is defined in California Government Section 87100 et. seq., Fair Political Practices Commission Regulation Section 18702, or Government Code Section 1090, with any City of Rialto elected or appointed official or employee, except as specifically disclosed to the City in writing.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, gender identity, marital status, national origin, ancestry, or other protected class in the performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, sexual orientation, gender, gender identity, marital status, national origin, ancestry, or other protected class.
Page - 17
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorney’s fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Facilities and Equipment.
Except as otherwise provided, Consultant shall, at its own cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space (“City Facilities”), as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quality, and time of furnishing of City Facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facilities that may involve incurring any direct expense, including but not limited to computer, long distance telephone, network data, internet, or other communication charges, vehicles, and reproduction facilities.
9.2 Payment of Taxes.
Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal and state taxes.
9.3 Notices.
All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by pre- paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission, and shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) three (3) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e- mails, text messages, instant messages are not acceptable manners of notice required hereunder.
Notices or other communications shall be addressed as follows:
If to City: City of Rialto
150 S. Palm Ave.
Rialto, CA 92376
Page - 18
Attn: City Manager
Tel: (909) 820-2525
Fax: (909) 820-2527
With copy to: Burke, Williams & Sorensen, LLP
1770 Iowa Avenue, Suite 240
Riverside, CA 92507
Attn: Eric S. Vail, City Attorney
Tel: (951) 788-0100
Fax: (951) 788-5785
If to Consultant: 120 Water Audit, Inc.
250 South Elm Street
Zionsville, IN 46077
Matthew Boes
Tel: (978) 809-0405
Email: [email protected]
Either Party may change its address by notifying the other Party of the change of address in writing.
9.4 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.5 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.6 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.7 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a Page - 19
valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
9.8 Corporate Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
[SIGNATURES ON FOLLOWING PAGE]
Page - 20
IN WITNESS WHEREOF, the parties hereto have executed and entered into this Agreement on the date first written above.
**Two signatures are required if a corporation**
CITY:
RIALTO UTILITY AUTHORITY, a joint
powers authority
By:
David N. Carmany, City Manager
ATTEST:
By:
Barbara A. McGee, City Clerk
APPROVED AS TO FORM:
Burke, Williams & Sorensen, LLP
By:
Eric S. Vail, City Attorney
CONSULTANT:
120 WATER AUDIT, INC.
By:
Signature
Matthew Boes ______________
Name
Vice President of Sales ________
Title
By:
Signature
Name
_________________________________
Title
Page - 21
EXHIBIT “A”
SCOPE OF SERVICES
Consultant shall provide those services as outlined in its proposal and included on the following pages.
City of Rialto, CA
Proposal: Service Line Inventory
Submission To:
Tom Crowley
Utilities Manager
City of Rialto, CA
Response Submitted By:
120Water
250 S Elm Street
Zionsville, IN 46077
120Water.com
Primary Contact:
Eric Mischnick
Inside Sales Representative
[email protected]
(402) 429-8554
Who We Are
120Water’s software, services, and sampling kits are purpose-built to standardize and streamline the execution of water quality programs and is configured to meet the specific compliance requirements laid out in the Lead & Copper Rule Revisions. Since 2016, our software has been the foundation for executing and reporting water quality programs for state agencies, municipalities and facilities across the country.
Our solutions enable clients to eliminate fragmented data, with our software automating everything from compliance and sample management to dashboards and communication. This cloud-based, modern technology helps our clients get real-time visibility into program performance so they can make better data-driven decisions. It also enables clients to communicate the status of the program easily with all stakeholders.
We are currently the only company in the United States with a platform to manage the verification, replacement, and sampling components of the new Rule, visualize key performance indicators, and communicate the necessary information to the right stakeholders at the right time. Because of these capabilities, our commercial off-the-shelf cloud software and point-of-use kits have been implemented by Public Water Systems in over 40 states. 120Water’s executive leadership team, investors, and board members have deep roots in environmental consulting, high growth technology companies, logistics, and water quality infrastructure. The majority of our 85 employees work out of our Indianapolis, IN, headquarters, with a small concentration of employees based in Illinois, Massachusetts, South Carolina, Colorado, Texas, and Pennsylvania.
We currently support a variety of customers, including the City of Denver, City of Garden Grove, CA, Patterson, CA, Nuevo Water Company, CA,, Cal Water, Liberty Utilities, City of Newark, City of Asheville, Maryland Department of the Environment, City of Pittsburgh, and Suez. A few of the accolades we’ve received as we’ve grown include winning the “Rise of The Rest” competition, participating in the Imagine H20 accelerator, and being named to Fast Company’s 2021 list of the World’s Most Innovative Companies. In addition, Environmental Policy Innovation Center (EPIC) awarded 120Water with the 2022 Water Data Prize for our lead service line inventory solution that enables utilities to identify and track service line material inventories and avoid expensive digs.
You’ll find that our team, experienced at executing these programs at scale, uses a data-driven approach to advise on best practices and make sure our Customer and Partner Support is
thoughtful and effective. We communicate the status of the multiple interwoven parts of the project with all stakeholders, ensuring that all parties are working towards the common goals of protecting public health and achieving compliance. With expert guidance and a proven activation process, we will ensure that The City of Rialto, CA meets and exceeds their LCRR compliance goals. .
Service Line Inventory
Introduction:
Service line inventories are the foundation for Lead and Copper Rule Revision compliance. The first preliminary inventory is due on October 16, 2024. Establishing an inventory of service line materials and identifying the location of any LSLs is a key step in getting them replaced and protecting public health. The service line inventory is also the first step to eventually prove and certify that your system is free of lead service lines. California utilities must build upon their utility service line inventories that were already submitted to the Department of Drinking Water by characterizing customer side service line material and submitting an updated combined inventory that adheres to the specifications of the EPA and Division of Drinking Water by October 16, 2024.
A comprehensive and accurate inventory has many additional benefits beyond regulatory compliance. Inventorying service line material permits notification to consumers about potential lead risks affecting them, which can facilitate customer actions to reduce lead in drinking water, including flushing, use of filters certified to reduce lead, and customer-initiated LSLR.
Inventories allow water systems to publicly track their progress on LSL identification and replacement, engaging the community and enhancing transparency. Inventories can also help water systems and consumers determine the source of high lead levels in drinking water at a home or building and the possible solutions for reducing exposure. Inventories can also make LSLR programs more efficient. Even incomplete inventories may create cost-saving opportunities for water systems by better targeting locations served by LSLs, stretching the value of internal or external funding that water systems receive, such as from the BIL. In addition, service line inventories can help inform decisions for other drinking water rules and could inform future needs surveys and potential future costs.
Objectives:
The LCRR requires CWSs and NTNCWSs to develop a publicly available service line inventory that includes material classifications (Lead, Galvanized Requiring Replacement (GRR), Non-Lead, or Lead status unknown) of all service lines connected to a public water distribution system (40 CFR §141.84(a)(2)). This inventory must define service line ownership, and where dual ownership applies, materials must be defined on both the PWS and customer portion of the line to accurately provide a single classification per service line.
The City of Rialto, CA and 120Water are entering into an agreement to collaborate and develop a Preliminary Service Line Inventory. A Preliminary Service Line Inventory or Records Based Inventory , is an initial evaluation of all records that are publically available and widely available within the Utility. Establishing a Preliminary Service Line Inventory is the first step in achieving compliance with Revised Lead and Copper Rule. The objective of this scope of work is to establish a Preliminary Service Line Inventory within the defined term duration.
Scope of Work:
Developing a preliminary inventory is Phase I of the LSLI process. The goal is to identify, gather, organize, clean and categorize the data appropriately for Implementation into the 120Water Platform. Here is the process describing the various sections for Phase I of the LSLI process:
● The Implementation section outlines the steps that begin once the 120Water Platform has been provision and distributed to the PWS
● The Consider section outlines the steps that follow once we work with the client to identify data sources and receive the data from the client ● The Clean section details steps for bringing the data into a coding environment and preparing the data so that it can be combined
● The Combine section details steps for merging data from different sources into a centralized LSLI data source. It is likely that the clean and combine processes will overlap when interacting with the data
● The Verify section outlines the steps for organizing the data so that Verify can be budgeted and prioritized
● The Report section outlines the steps for reporting the inputs that are auto populated and efficiently reported to the State.
Implementation
120Water will implement a proprietary software built specifically for water systems to manage compliance with the revised Lead and Copper Rule to serve as the foundation to digitize, track, report, and manage all aspects of the development of the Lead Service Line Inventories, and any subsequent compliance requirements.
Consider
The first step is to determine the best way to pull together the data set by leveraging some unique combination of the data sources that were previously identified. The goal is to consider “combine potential” by taking a closer look at the data. When developing a records-based LSLI, the current LCRR language permits the following as records:
(i) All construction and plumbing codes, permits, and existing records or other documentation which indicates the service line materials used to connect structures to the distribution system. (ii) All water system records, including distribution system maps and drawings, historical records on each service connection, meter installation records, historical capital improvement or master plans, and standard operating procedures.
(iii) All inspections and records of the distribution system that indicate the material composition of the service connections that connect a structure to the distribution system. (iv) Any resource, information, or identification method provided or required by the State to assess service line materials.
It should be noted that the State may approve other sources of information not listed below for a system to use in their preliminary inventory. As states come up with their own policies, more information around these additional, acceptable sources will come to light. EPA is in the process of drafting and releasing Lead Service Line Inventory Improvements, as those are released, the Preliminary Inventory may be adjusted.
Data Variable / Dataset What to Look For
GIS Shapefiles
Customer Locations Includes street addresses or
latitude/longitude data
Service Lines Where the service lines are located, material type, pipe size
Meter Locations Where the water meters are located
Meter Type The type of water meter installed, type of
customer served detected through meter size
(residential versus commercial)
Tax Parcels Building age and building assessed value
Water Mains Where water mains are located, material
type, pipe size
Zones/Neighborhoods/Wards Map of how the city/community is organized, helps with LSLI prioritization
Work Order System
Service Line Repairs Looking for material installed, date installed to cross-reference with Ban Dates (1988-1990),
pipe size
Service Line Replacements Looking for material installed, date installed to cross-reference with Ban Dates (1988-1990),
pipe size
Meter Repairs Pipe materials on either side of meter
location, date installed, pipe size
Meter Replacements Pipe materials on either side of meter location, date installed, pipe size
Customer Billing System
Unique Customer ID Such as a unique account number or other code used to identify that specific customer
Unique Location ID Location code, street address, or
latitude/longitude
Customer Type Residential, Commercial, Industrial Customer Types
All customer type SLs have to be inventoried
but PWS might want to narrow in on
residential first
Commercial and industrial user SLs are
typically larger and pump a lot of water
through. Lead is not ideal for larger pipes,
lead is better for smaller pipes because of
malleability. Can help prioritize. If the pipe is >
2 inches, then they likely do not have lead
Meter ID
Tax Parcel Data / Records
Tax Parcel Identification Number (PIN) Provides a unique identifier to support data merge
Home Year Built Right now we cannot use home built date as a justification for classifying materials type.
As-built year can be used as a cross
comparison point. State regulations could
change this.
You can cross check as-built with home built
date from the tax parcel data BUT it does not
count/ is not accepted as proof from the EPA
(unknown really if they will accept it/not clear
right now) that an LSL doesn’t exist.
One example for where As Builts will be
helpful is for neighborhoods
established/constructed dates . WithCity of
Rialto, CA if we can prove if a neighborhood
was built after the state’s lead ban date, then
EPA is fine with that as proof.
Lot Size Smaller lot is more likely to be associated
with higher levels of lead, correlation with
assessed value
Property Type Fallback if we do not get this data on
Residential, Commercial, and Industrial from
the client
Latitude/longitude Location identifier (If client cannot provide this data)
Street Address Location identifier (If client cannot provide this data)
Home Assessed Value Correlation between home value and probability of lead in SL and internal plumbing
(the lower the home value, the higher the SL
probability)
Useful for environmental justice
considerations
Tier Sites Data
Street addresses Can use street addresses to connect tier site sample results to specific addresses in our
baseline file
Subdivisions or neighborhoods Can use this as supplemental information to help us understand whether or specific
subdivision or neighborhood has a lot of lead
exceedances
Lead concentrations from sample results (ppb
or ug/L)
Use this information to help us understand
the probability of a lead service line
LCR event months and year Use this longitudinal data to understand how lead concentrations have evolved over time
and helps us understand the probability of a
lead service line
*** IMPORTANT - As-Built, Tap Card Records, and Paper Records *** As-Built, TAP Card, and paper records can be a very important and viable source of data when developing a service line inventory. 120Water Program Consultants will work with you to identify the existence, completeness and impact of these records, however there will be an additional cost for the digitization (collection and scanning) and transcription (data processing and interpretation) of these data sources to be applied to your inventory. 120Water will present the fee for the implementation of these services and the process of transporting hard copy records to our possession.
Clean & Combine
Cleaning and combining the data means to modify, reorganize, and adjust the data in a way that prepares it for more in-depth analysis. Cleaning and combining data happen simultaneously and the process used is contingent on the type of data sources provided and how the data is organized.
120Water Program Consultants will review and analyze all records to determine which locations in City of Rialto’s service area are known to be Lead, Non-Lead, GRR or Unknown which permits identifying areas where LSL’s are most likely to exist.
Verify
At this point in the process, a compliant Service Line Inventory has been reached. The goal of this stage is to understand the inventory findings and evaluate what the future holds. Through the Verification Workshop, 120Water will provide a detailed summary with the recommendations of how to verify lead status unknown given the various methods approved by the EPA but also the State Agency. Within this report, 120Water will provide a cost analysis for the verification efforts.
Report
At this point in the process, the initial data has been collected, assimilated, and placed in a state compliant inventory format. This initial inventory will merely be the starting point for each utility in their quest to identify all of their system service line material compositions.
Deliverables:
- 120Water Platform
- Preliminary Service Line Inventory
- Locations Based
- Inventory Classification Report
- Public Transparency Dashboard
- Verification of Lead Status Unknown Report
- Draft Budget for Verification
- Recommendation of Verification Methods
Project Milestones/Schedule :
Milestone 1 - Client Kick-off Meeting and Platform Delivery (1 Month, 5% of Proposal Cost)
Host: 120Water Client Success Team
Description: The Client and 120Water have hosted and completed the Project Kick-off meeting.
In this meeting, the 120Water Platform is shown to the Client with invitations being received by the Client from Client Success. The goal of this meeting is to begin the Client Onboarding Process and establish the External Knowledge Transfer from the Client to 120Water’s Client Success and Program Consulting Teams.
Result: Project Kick-off Meeting Complete - Timelines and Expectations Established - Platform Invitation and Delivery
Deliverable: 120Water Platform
Milestone 2 - Data Investigation Call Complete (1 Month, 10%) Host: 120Water Program Consultant
Description: The most important component of 120Water developing a Preliminary Inventory begins with the external knowledge transfer with an investigation of all of the various data sources that exist within the utility. It is critically important that the 120Water Program Consultant identify and familiarize themselves with these data sources so we can begin developing the Methodology Document as well as internalize the application of organizing, cleaning and merging these various data sources.
Result: Data Investigation Call is complete and a path forward for transfering identified data sources to the 120Water Program Consultant.
Milestone 3 - Inventory Evolution through Tax Parcel Data (3 Months, 20%) Host: 120Water Program Consultant
Description: Tax Parcel Data plays a pivotal role in creating a Lead Service Line. Within this data set includes Home Age, which is an initial source for identifying lead status unknown per various state regulations.
Result: First evolution of Inventory Status from unknowns to classified know or likely known materials
Milestone 4 - Platform Training - Verification Workshop + Workflow (1 Month, 15%) Host: 120Water Client Success
Description: Now that locations and services are loaded into the 120Water Platform, the client needs to be trained on how to access the platform and how to document any verification efforts that take place during the preliminary inventory development phase. This is critical for ensuring all information and data are most up to date.
Result: Client is enabled on how to track information through the platform and directly through the logbook (offline).
Deliverable: Excel Logbook for Field Services if Platform Access is unavailable Milestone 5 - Incorporation of Batch 1 of Client Data (2 Months, 12.5%) Host: 120Water Program Consultant
Description: Applying Batch 1 of Client Data to the Preliminary Inventory inclusive of Tax Parcel Data. Customer Billing is mandatory to be included in Batch 1 of Client Data.
Result: Tax Parcels overlaid with Customer Billing Locations equate to a robust starting point for establishing a Lead Service Line Inventory.
Milestone 6 - Baseline Compliant Inventory (2 Months, 20%) Host: 120Water Program Consultant + Client
Description: All Customer Billing Locations have been identified and service lines tied to each location. Service Line materials may be documented as non-lead or likely non-lead (based on home age) and unknown. Unknown service line materials are allowed for the initial preliminary inventory submission.
Result: A preliminary inventory has been established and a plan for further verifying various records continues.
Milestone 7 - Incorporation of Batch 2 of Client Data (2 Months, 12.5%) Host: 120Water Program Consultant
Description: All remaining data sources have been identified and evaluated for the effectiveness of signifying service line material. All records have been cleaned, joined and imported into the 120Water Platform.
Result: Preliminary Inventory has been completed with the evaluation of all service line records.
Milestone 8 - Preliminary Inventory Delivery & Verification Recommendation Host: 120Water Program Consultant
Description: The Preliminary Inventory has been finalized with all data imported into the 120Water Platform. Initial findings with a recommended verification plan have been documented and are ready to be presented to the client.
Result: Client has received the Preliminary Inventory and Verification plan for mitigating lead status unknown. The template released in the EPA’s August 2022 LSLI guidance will be the default format for delivery of your Preliminary Inventory. If and or when a state specific template is released your Preliminary Inventory will be formatted to meet that state specific template requirement.
Deliverable: Completed Preliminary Service Line Inventory & Verification of Lead Status Unknown Report
Milestone 9 - Public Transparency Dashboard Created (5%) Host: 120Water Program Consultant
Description: The Public Transparency Dashboard functionality has been turned on in Backoffice and is ready to be presented to the client.
Result: Given the clients plans for the sharing the service line inventory, location, timing, etc - this functionality is ready for the client to implement.
Milestone 10 - Verification Go-Live (On Going, Will Depend on Verification Methods, Bill as consumed)
Host: 120Water Program Consultant + Client
Description: Verification Recommendation has been presented and the client has agreed to implement a method of verifying lead status unknown.
Result: A method of verification is being implemented by the client for verification.
Page - 22
EXHIBIT “B”
COST PROPOSAL
Page - 23
Page - 24
EXHIBIT “C”
SCHEDULE OF PERFORMANCE
SERVICE LEVEL AGREEMENT
This Service Level Agreement (“SLA”) sets forth 120Water’s performance objectives for the availability of its hosted software platform (“120Water Platform”). The remedies set out in this SLA are Customer’s sole and exclusive remedy for issues covered by the SLA. While 120Water will not modify this SLA arbitrarily, 120Water may do so from time -to-time. Should 120Water make a change to this SLA, 120Water shall notify Customer. The notification will set out the effective date of any changes.
“SaaS Services” means the water test administration and reporting services made available to web- based and mobile users via the 120Water Platform hosted by 120Water.
During the Subscription Term, 120Water shall make the SaaS Services available to Customer and shall provide maintenance and support to Customer in accordance with its standard support policies and procedures. The SaaS Services further include developing, training, testing, correcting, and improving the 120Water Platform, such activities for which may include the use of Customer Data. 120Water will use commercially reasonable efforts to maintain the SaaS Services’ availability, except for planned downtime for maintenance or upgrades, or any unavailability caused by circumstances beyond 120Water’s reasonable control. 120Water reserves the right to modify the SaaS Services at any time. The parties may, from time to time, execute an Order Form describing Professional Services that 120Water shall provide to Customer, the duration of such Professional Services if applicable, the compensation to be paid for the Professional Services, and any other terms applicable to the project. A list of specific deliverables, a timetable, and/or a detailed specification are listed i n Exhibit “B” of this Professional Services Agreement.
1. Availability. 120Water will use commercially reasonable efforts to maintain availability of the 120Water Platform for Customer’s use 24x7, except in the event of any of the following, during which the 120Water Platform may be partially or totally unavailable:
A. “Scheduled Maintenance”: Scheduled maintenance, which includes updates and other routine maintenance, will be conducted between 7 p.m. – 2 a.m. (Eastern US Time) weekdays, weekends and/or holidays. However, maintenance may also occur at any other time as is necessary to provide top tier service to 120Water’s customers. 120Water may change planned maintenance windows at its sole discretion and will notify Customer of any such changes that affect previously notified plans, provided such maintenance is done during low -volume times. 120Water will use commercially reasonable efforts to provide Customer with at least 24 hours’ prior notice if Scheduled Maintenance downtime will occur at such other time.
B. “Unscheduled Maintenance”: Maintenance not previously planned which is needed to resolve issues that are critical for customers and/or performance of the 120Water Platform. 120Water will notify Customers when possible via email prior to the Page - 25
unscheduled maintenance. When and where practicable, 120Water will try to conduct unscheduled maintenance between 9:00 p.m. and 2:00 a.m. (Eastern US Time).
C. Force Majeure Events (as defined in Section 3.3 of the Professional Services Agreement).
D. Unauthorized use or misuse of the 120Water Platform by Customer or anyone using any of Customer’s authorized user’s login credentials.
2. “Availability Goal”: 120Water will use commercially reasonable efforts to make the 120Water Platform available 99.5% of the time, measu red on an average monthly basis, exclusive of the following:
A. The events set forth in Section 1.A-1.D. of this SLA;
B. Any outage lasting less than 5 minutes;
C. Any outage 120Water determines to be a result of Customer’s breach of the Agreement or other acts or omissions of Customer;
D. Force Majeure Events, provided that 120Water timely implements its disaster recovery plan; and,
E. Any outage determined to be a result of a failure of outside services or equipment not within the control of 120Water, including Customer’s hardware and software.
3. Technical Support. 120Water provides technical support 24/7 by email to [email protected], and by telephone at 800-674-7961.
4. Response Time. 120Water endeavors to respond to support requests within 2 hours.