HomeMy WebLinkAbout114-24 RESOLUTIONFile Number: 2024-1854
113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 114-24
120 WATER AUDITS, INC. (SERVICE AGREEMENT):
A RESOLUTION TO APPROVE A TWO YEAR PROFESSIONAL SERVICES AGREEMENT WITH 120 WATER
AUDITS, INC. FOR WATER SERVICE LINE INVENTORY COMPLIANCE SERVICES IN THE AMOUNT OF
$55,000.00 PER YEAR
WHEREAS, the Lead and Copper Rule Revisions were implemented by the Environmental Protection Agency in 2021
to provide greater protection against lead exposure by requiring water sampling at schools and day cares, removal of
lead service lines , and public education ; and
WHEREAS, water systems must complete their initial service line inventories by October 16 , 2024, to comply with
the Lead and Copper Rule Revisions and 120 Water Audits, Inc. was selected through RFQ 24-0 I , Selection # 5 to
provide inventory compliance services.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section I : That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan to sign a two
year professional services agreement with 120 Water Audits , Inc. for water service line inventory compliance services
in the amount of$55 ,000.00 per year.
PASSED and APPROVED on April 2 , 2024
Page 1
CITY OF ~~ FAYETTEVILLE
,,. ARKANSAS
MEETING OF APRIL 2, 2024
TO:
THRU:
FROM:
Mayor Jordan and City Council
Susan Norton , Chief of Staff
Tim Nyander, Utilities Director
CITY COUNCIL MEMO
2024-1854
SUBJECT: 120 Water Audit, Inc. -Water Service Line Inventory Compliance
RECOMMENDATION:
Staff recommends approval of a Professional Services Agreement with 120 Water Audits , Inc. (120Water) for
water service line inventory assistance for a 2-year term at $55 ,000 .00 per year.
BACKGROUND:
EPA revised the Lead and Copper Rule in 2021 . This rule is known as the Lead and Copper Rule Revisions
(LCRR). It improves the protection of children and communities from lead exposure by sampling schools and
daycare facilities , removing lead service lines , and empowering communities through public education . The
LCRR establishes a compliance deadline of October 16, 2024 , for water systems to complete their initial
service line inventories . EPA announced on December 16 , 2021 , that they will begin developing a new
regulation , the Lead and Copper Rule Improvements (LCRI), to strengthen key elements of the LCRR. EPA
plans to finalize the rule in the summer of 2024 , and the estimated compliance deadline for the LCRI is the
summer or fall of 2027 , three years after the effective date of the rule.
On February 9, 2024 , the City of Fayetteville conducted a formal Engineering Selection meeting . 120Water
was selected to negotiate an Engineering Services contract for LCRR Inventory compliance assistance (RFQ
24-01 , Selection #5). The scope includes support for inventory building , verification , database management,
sampling and communications to maintain compliance with state and federal guidelines related to LCRR.
DISCUSSION:
The primary project deliverables include a cloud-based database and web map which will be used to populate
the State 's template for submitting the inventory in October for minimum compliance with the rule . Since the
deliverable is a cloud-based softwa re primarily , the contract is structured as a yearly fee of $55 ,000 .00 for a 2-
year term . During this 2-year term it is anticipated that EPA will finalize its rulemaking such that the utility can
make a decision moving forward if these features should be kept active .
BUDGET/STAFF IMPACT:
Funds are available in the Water System Rehabilitation/Replacement account.
ATTACHMENTS: SRF (#3), Agreement (#4), Appendix A to Agreement -Quote from 120 Water Audit, Inc .
(#5)
Mailing address :
113 W. Mountain Street
Fayetteville, AR 72701
www. fayettevi I le-a r .gov
City of Fayetteville, Arkansas
Legislation Text
File #: 2024-1854
120 Water Audit, Inc. -Water Service Line Inventory Compliance
113 West Mountain Street
Fayetteville , AR 72701
(479) 575-8323
A RESOLUTION TO APPROVE A TWO YEAR PROFESSIONAL SERVICES AGREEMENT WITH
120 WATER AUDITS , INC. FOR WATER SERVICE LINE INVENTORY COMPLIANCE
SERVICES IN THE AMOUNT OF $55,000.00 PER YEAR
WHEREAS , the Lead and Copper Rule Revisions were implemented by the Environmental Protection
Agency in 2021 to provide greater protection against lead exposure by requiring water sampling at
schools and day cares, removal of lead service lines, and public education; and
WHEREAS, water systems must complete their initial service line inventories by October 16, 2024, to
comply with the Lead and Copper Rule Revisions and 120 Water Audits , Inc. was selected through RFQ
24-0 I , Selection# 5 to provide inventory compliance services.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section I : That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Jordan
to sign a two year professional services agreement with 120 Water Audits, Inc. for water service line
inventory compliance services in the amount of $55,000.00 per year.
Page 1
Tim Nyander
Submitted By
City of Fayetteville Staff Review Form
2024-1854
Item ID
4/2/2024
City Council Meeting Date -Agenda Item Only
N/ A for Non-Agenda Item
3/15/2024
Submitted Date
Action Recommendation:
WATER SEWER (720)
Division/ Department
Staff recommends approval of a Professional Services Agreement with 120 Water Audits, Inc. (120Water) for water
service line inventory assistance for a 2-year term at $55,000.00 per year .
Budget Impact:
5400 . 720.5600-5314.00 Water and Sewer
Account Number Fund
12009.1 Water System Rehabilitation/Replacement
Project Number Project Title
Budgeted Item? Yes Total Amended Budget $ 8,383,263.00
Expenses (Actual+Encum) $ 5,562,151.67
Available Budget Is 2,s21 ,111.33 I
Does item have a direct cost? Yes Item Cost $ 55,000.00
Is a Budget Adjustment attached? No Budget Adjustment $
Remaining Budget $ 2,766 ,111.33
V20221130
Purchase Order Number: ___________ Previous Ordinance or Resolution# _______ _
Change Order Number: ___________ Approval Date:
Original Contract Number:
Comments:
AGR EE MENT
For
PRO FESSI O NA L S ERVI CES
Between
CITY O F FAY ET T EVILL E, ARK A NS AS
And
120 WAT ER AUDIT, INC .
THIS AGREEMENT FOR PROFESSIONAL SERVICES (this "Agreement") is made effective as of Apn \ 2rJ , 2024 ("Effective Date "), by and between City of Fayetteville, Arkansas , acting by and
through its Mayor (hereinafter called CITY OF FAYETTEVILLE) and 120 Water Audit, Inc. d/b /a
I 20Water (hereinafter called 120Water).
CITY OF FAYETTEVILLE from time to time requires professional services in connection with the
creation and /or maintenance of a lead service line inventory in order to comply with the EPA "Lead and
Copper Rule," originally adopted in 1991. Therefore , CITY OF FAYETTEVILLE and 120Water in
consideration of their mutual covenants agree as follows:
120Water shall serve as CITY OF FAYETTEVILLE 's provider of water test administration and reporting
services made available to web-based and mobile users via the 120Water Platform hosted by 120Water
(the "Services") in those assignments to which this Agreement applies, and shall give consultation and
advice to CITY OF FAYETTEVILLE during the performance of 120Water 's services . "120Water
Platform" means 120Water 's proprietary online hosted software platform , website, operating systems ,
hardware, and other technical resources used by 120Water to provide the SaaS Services. All Services
shall be performed under the direction of competent personnel that are duly qualified in the particular
field.
SECTION 1 -AUTHORIZATION OF SERVICES
1.1 Services on any assignment shall be undertaken only upon written Authorization of CITY OF
FAYETTEVILLE and agreement of 120Water.
1.2 Assignments may include services described hereafter a s Basic Services or as Additional Services
of 120Water.
1.3 Changes, modifications or amendments in scope , price or fees to this contract shall not be
allowed without a formal contract amendment approved in writing by the Mayor and the City
Council and by 120Water in advance of the change in scope , costs , fee s, or delivery schedule.
SECJlQN l -BASIC SERVICES OF l20WAJEB
2.1 Perform Services in connection with the Project as hereinafter stated.
I. I. I The Scope of Services to be furnished by 120Water is included in Appendix A attached
hereto and made part of this Agreement.
• 1.2 I 20Water shall coordinate their activities and services with the CITY OF FAYETTEVILLE.
120Water and CITY OF FAYETTEVILLE agree that 120Water has full responsibility for the
Services.
1.3 Subcontractors. I 20Water may engage subcontractors to perform or to support I 20Water 's
performance of portions of the Services provided or made available to substantially all of
120Water 's customers (e.g., data hosting , water testing, and other service providers), provided
that I 20Water may not subcontract to a subcontractor dedicated to CITY OF
FAYETTEVILLE 's account any custom Services or custom-created Deliverables (defined
below) specifically purchased only by CITY OF FAYETTEVILLE (and set forth in a separate
or supplemented Appendix A) without CITY OF FAYETTEVILLE 's prior written consent,
such consent not being unreasonably withheld, delayed, or conditioned.
SECTION 2 -RESPONSIBILITIES OF CITY OF FAYETTEVILLE
3.1 CITY OF FAYETTEVILLE shall , within a reasonable time , so as not to delay the services of
120Water.
3.1.1 Provide full information as to CITY OF FAYETTEVILLE 's requirements.
3.1.2 Assist I 20Water by placing at I 20Water's disposal all available information pertinent to the
assignment including previous reports and any other data relative thereto.
3 .1.3 Assist I 20Water in obtaining access to property or other information or materials in
possession of the CITY OF FAYETTEVILLE as reasonably necessary for I 20Water to
perform Services under this Agreement.
3.1.4 Examine all studies, reports, proposals, and other documents presented by I 20Water and
render in writing decisions pertaining thereto .
3.1.5 The Utilities Director is the CITY OF FAYETTEVILLE 's project representative with respect
to the services to be performed under this Agreement. The Utilities Director shall have
complete authority to transmit instructions , receive information, interpret and define CITY
OF FAYETTEVILLE's policies and decisions with respect to materials, equipment, elements
and systems to be used in the provision of Services, and other matters pertinent to the
Services covered by this Agreement.
3.1.6 CITY OF FAYETTEVILLE and /or its representative will review all documents and provide
written comments to I 20Water in a timely manner.
Sf:CTJON 3 -PERIOD OF SERVICE
4 .1 This Agreement will become effective upon the first written notice by CITY OF
FAYETTEVILLE authorizing services hereunder.
4 .2 The provisions of this Agreement have been agreed to in anticipation of completion of the
Services. I 20Water will proceed with providing the Services immediately upon receipt of written
authorization from CITY OF FAYETTEVILLE. Said authorization shall include the scope of the
Services authorized and the time in which the Services are to be completed. The anticipated
schedule is included as Appendix A.
Services Co ntract 2
SECTION 4 -PAYMENTS TO 120WATER
5.1 The maximum not-to-exceed amount authorized for this Agreement is $_55,000_annuallly for
a minimum of two years. The CITY OF FAYETTEVILLE shall compensate 120Water based on
a Unit Price or Lump Sum basis as described in Appendix A.
5.2 Statements
5.2.1 Unless stated otherwise in Appendix A or agreed to otherwise by the parties, monthly
statements for each calendar month shall be submitted to CITY OF FAYETTEVILLE or such
parties as CITY OF FAYETTEVILLE may designate for Services consistent with 120Water 's
normal billing schedule. Once established, the billing schedule shall be maintained
throughout the duration of this Agreement. Applications for payment shall be made in
accordance with a format to be developed by 120Water and approved by CITY OF
FAYETTEVILLE. Final payment for Services shall be made upon CITY OF
FAYETTEVILLE 's approval and acceptance.
5.3 Payments
5 .3.1 All statements are payable upon receipt and due within thirty (30) days . If a portion of
120Water 's statement is disputed by CITY OF FAYETTEVILLE, the undisputed portion shall
be paid by CITY OF FAYETTEVILLE by the due date. CITY OF FAYETTEVILLE shall
advise I 20Water in writing of the basis for any disputed portion of any statement. CITY OF
FAYETTEVILLE will make reasonable effort to pay invoices within 30 days of date the
invoice is approved, however, payment within 30 days is not guaranteed.
5.3.2 If CITY OF FAYETTEVILLE's account is 15 days or more overdue, 120Water may, in
addition to any of its other rights or remedies , suspend CITY OF FAYETTEVILLE's access
to the I 20Water Platform and/or suspend provision of the Services until such amounts are
paid in full. If CITY OF FAYETTEVILLE brings its account current within 15 days after
suspension commences, I 20Water will restart access to the I 20Water Platform and the
provision of Services . If such failure to pay has not been cured within 30 days of the payment
due date, then upon written notice , I 20Water may terminate this Agreement and any or all
outstanding projects as referenced in Appendix A (or any supplement thereto) without
penalty.
5.4 Final Payment
5.4.1 Upon satisfactory completion of the work performed under this Agreement, as a condition
before final payment under this Agreement, or as a termination settlement under this
Agreement, I 20Water shall execute and deliver to CITY OF FAYETTEVILLE a release of all
claims against CITY OF FAYETTEVILLE arising under or by virtue of this Agreement,
except claims which are specifically exempted by I 20Water to be set forth therein. Unless
otherwise provided in this Agreement or by State law or otherwise expressly agreed to by the
parties to this Agreement, final payment under this Agreement or settlement upon termination
of this Agreement shall not constitute a waiver of CITY OF FAYETTEVILLE 's claims
against I 20Water or its sureties under this Agreement or applicable performance and payment
bonds , if any.
Services Contract 3
SECTION 5 -GENERAL CONSIDERATIONS
6 .1 In s urance
6 .1.1 During the course of performance of these services , 120Water will maintain (in United States
Dollars) the following minimum insurance coverages:
Type of Coverage
Workers ' Compensation
Employers ' Liability
Commercial General Liability
Bodily Injury and
Property Damage
Automobile Liability :
Bodily Injury and
Property Damage
Professional Liability Insurance
Limits of Liabil ity
Statutory
$500,000 Each Accident
$1 ,000 ,000 Combined Single Limit
$1 ,000,000 Combined Single Limit
$1,000,000 Each Claim
120Water will provide to CITY OF FAYETTEVILLE certificates as evidence of the specified
insurance within ten days of the date of this Agreement and upon each renewal of coverage.
6 .1.2 CITY OF FAYETTEVILLE and 120Water waive all rights against each other and their
officers, directors, agents, or employees for damage covered by property insurance during and
after the completion of I 20Water 's services.
6 .2 Professional Responsibility
6 .2 .1 I 20Water will exercise reasonable skill, care, and diligence in the performance of l 20Water
services and will carry out its responsibilities in accordance with customarily accepted
professional practices . CITY OF FAYETTEVILLE will promptly report to 120Water any
defects or suspected defects in 120Water services of which CITY OF FAYETTEVILLE
becomes aware, so that 120Water can take measures to minimize the consequences of such a
defect. I 20Water warrants that: (a) the functionality of the Services will not be materially
decreased during the term of this Agreement; (b) 120Water sha ll take commercially
reasonable measures to protect against the Services or any Deliverables (defined below)
containing or transmitting viruses , worms , time bombs, Trojan horses or other harmful files ,
scripts, agents or programs to CITY OF FAYETTEVILLE ; and , (c) 120Water will exercise
reasonable skill , care, and diligence in the performance of 120Water 's Services and will carry
out its responsibilities in accordance with customarily accepted industry practices (all of the
foregoing collectively referred to as the "Service Warranty "). CITY OF FAYETTEVILLE
must report to 120Water in writing any failure of the Services to materially conform to the
Service Warranty within two years of such Services in order to receive warranty remedies.
For any breach of the Service Warranty, I 20Water shall re-perform the Services (at no cost to
CITY OF FAYETTEVILLE), and, if I 20Water is unable to re-perform the deficient Services
as warranted within 30 days of receipt of notice (or such other time as agreed to in writing by
the parties), I 20Water shall refund to or credit CITY OF FAYETTEVILLE a pro rata portion
of the fee s paid for the deficient Services. Warranties for third-party products are governed
Servi ces Co ntrac t 4
under the applicable third-party warranty terms, and CITY OF FAYETTEVILLE expressly
acknowledges that I 20Water has no obligations with regard to third-party products . CITY OF
FAYETTEVILLE retains all remedies to recover for its damages caused by any negligence of
120Water.
6 .2.2 "Deliverables " means (a) the deliverables (e.g., custom reports) specified in Appendix A
(attached hereto or as supplemented during this Agreement) that are expressly created by
120Water for CITY OF FAYETTEVILLE and (b) all reports provided or made accessible to
CITY OF FAYETTEVILLE pursuant to the same. CITY OF FAYETTEVILLE shall own all
Deliverables.
6.3 [Intentionally Omitted]
[Intentionally Omitted]
6.4
6.4 .1
6.5
6.5.1
6.5.1.1
6 .5.1.2
6 .5.2
6 .5 .2 .1
6 .5.2.2
6.5.3
6.5 .3.1
6.5.3 .2
Changes
CITY OF FAYETTEVILLE shall have the right to make changes within the general scope of
I 20Water's services, with an appropriate change in compensation and schedule only after
Fayetteville City Council approval of such proposed changes and upon execution of a
mutually acceptable amendment or change order s igned by the Mayor of the CITY OF
FAYETTEVILLE and the duly authorized officer of I 20Water.
Termination
This Agreement may be terminated in whole or in part in writing by either party in the event
of substantial failure by the other party to fulfill its obligations under this Agreement through
no fault of the terminating party, provided that no termination may be effected unless the
other party is given:
Not less than thirty (30) calendar days written notice (delivered by certified mail , return
receipt requested) of intent to terminate and , other than for failure to timely pay amounts
due under this Agreement, thirty (30) day s to cure such failure, and
An opportunity for consultation with the terminating party prior to termination.
This Agreement may be terminated in whole or in part in writing by CITY OF
FAYETTEVILLE for its convenience, provided that l 20Water is given:
Not less than thirty (30) calendar days written notice (delivered by certified mail, return
receipt requested) of intent to terminate,
An opportunity for consultation with the terminating party prior to termination.
If termination for default is effected by CITY OF FAYETTEVILLE, an equitable adjustment
in the price provided for in this Agreement shall be made , but
No amount shall be allowed for anticipated profit on unperformed services or other work,
Any payment due to I 20Water at the time of termination may be adjusted to cover any
additional costs to CITY OF FAYETTEVILLE because of 120Water 's default.
Serv ices Contract 5
6.5.4 If termination for default is effected by 120Water, or if termination for convenience is
effected by CITY OF FAYETTEVILLE, the equitable adjustment shall include a reasonable
profit for services or other work performed. The equitable adjustment for any termination
shall provide for payment to I 20Water for services rendered and expenses incurred prior to
the termination , in addition to termination settlement costs reasonably incurred by 120Water
relating to commitments which had become firm prior to the termination.
6.5.5 Upon receipt of a termination action under Paragraphs 6 .5.1 or 6.5.2 above , 120Water shall:
6.5.5 .1 Promptly di scontinue all affected work (unless the notice directs otherwise),
6.5.5.2 Upon CITY OF FAYETTEVILLE 's request, provide CITY OF FAYETTEVILLE with a
copy of City Data (defined below) held by 120Water, and 120Water shall convert CITY
OF FAYETTEVILLE's account to an inactive status. 120Water may, but shall not be
obligated to, delete all City Data after Customer 's account converts to inactive status.
6.5.5.2.1 . "City Data" means all electronic data (including, but not limited to , Personal
Information , as defined under applicable data privacy law) uploaded by CITY OF
FAYETTEVILLE to the 120Water 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 OF FAYETTEVILLE.
6.5.6 Upon termination under Paragraphs 6.5.1 or 6.5.2 above CITY OF FAYETTEVILLE may
take over the work and may award another party an agreement to complete the work under
this Agreement.
6.5.7 If, after termination for failure of 120Water to fulfill contractual obligations , it is determined
that 120Water had not failed to fulfill contractual obligations, the termination shall be deemed
to have been for the convenience of CITY OF FAYETTEVILLE. In such event, adjustments
of the agreement price shall be made as provided in Paragraph 6 .5.4 of this clause.
6.6 Delays
6.6.1 In the event the services of 120Water are suspended or delayed by CITY OF
FAYETTEVILLE or by other events beyond 120Water 's reasonable control, 120Water shall
be entitled to additional compensation and time for reasonable costs incurred by 120Water in
temporarily closing down or delaying the Services.
6 . 7 Right s and Benefits
6.7.1 120Water 's Services performed pursuant to the terms of this Agreement will be performed
solely for the benefit of CITY OF FAYETTEVILLE and not for the benefit of any other
persons or entities .
6 .8 Dispute Resolution
6.8.1 Scope of Paragraph: The procedures of this Paragraph shall apply to any and all disputes
between CITY OF FAYETTEVILLE and 120Water which arise from , or in any way are
Serv ices Cont ract 6
related to, this Agreement, including, but not limited to the interpretation of this Agreement,
the enforcement of its terms, any acts , errors, or omissions of CITY OF FAYETTEVILLE or
I 20Water in the performance of this Agreement, and disputes concerning payment.
6 .8.2 Exhaustion of Remedies Required: No action may be filed unless the parties first negotiate.
If timely Notice is given under Paragraph 6.8.3 , but an action is initiated prior to exhaustion
of these procedures, such action shall be stayed , upon application by either party to a court of
proper jurisdiction, until the procedures in Paragraphs 6.8.3 and 6.8.4 have been complied
with.
6.8.3 Notice of Dispute
6 .8.3.1 For disputes arising prior to the making of final payment promptly after the occurrence of
any incident, action, or failure to act upon which a claim is based , the party seeking relief
shall serve the other party with a written Notice.
6.8.3.2 For disputes arising within one year after the making of final payment, CITY OF
FAYETTEVILLE shall give I 20Water written Notice at the address listed in
Paragraph 6 .14 within thirty (30) days after occurrence of any incident, accident, or first
observance of defect or damage. In both instances, the Notice shall specify the nature
and amount of relief sought, the reason relief should be granted, and the appropriate
portions of this Agreement that authorize the reliefrequested.
6.8.4 Negotiation : Within seven days of receipt of the Notice , the Project Managers for CITY OF
FAYETTEVILLE and I 20Water shall confer in an effort to resolve the dispute. If the dispute
cannot be resolved at that level , then , upon written request of either side , the matter shall be
referred to the President of 120Water and the Mayor of CITY OF FAYETTEVILLE or his
designee . These officers shall meet at the Project Site or such other location as is agreed
upon within 30 days of the written request to resolve the dispute.
6.9 CITY OF FAYETTEVILLE represents that it has sufficient funds or the means of obtaining funds
to remit payment to 120Water for services rendered by I 20Water.
6 .10 Publications
6.10.1 Recognizing the importance of professional development on the part of I 20Water 's
employees and the importance of 120Water 's public relations , 120Water may prepare
publications , such as technical papers, articles for periodicals, and press releases, pertaining
to 120Water's Services. Such publications will be provided to CITY OF FAYETTEVILLE in
draft form for CITY OF FAYETTEVILLE 's advance review. CITY OF FAYETTEVILLE
shall review such drafts promptly and provide CITY OF FAYETTEVILLE's comments to
120Water CITY OF FAYETTEVILLE may require deletion of proprietary data or
confidential information from such publications , but otherwise CITY OF FAYETTEVILLE
will not unreasonably withhold approval. The cost of I 20Water 's activities pertaining to any
such publication shall be for 120Water 's account.
6.11
6.11.1
Indemnification
CITY OF FAYETTEVILLE agrees that it will require all con struction Contractors to
indemnify, defend, and hold harmless CITY OF FAYETTEVILLE and I 20Water from and
against any and all third-party claims for loss where loss is caused or incurred or alleged to be
Se rv ices Co ntract 7
caused or incurred in whole or in part as a result of the negligence or other actionable fault of
the Contractors, or their employees, agents, Subcontractors, and Suppliers.
6.12 Ownership of Documents
6 .12.1 Ownership of City Data. As between CITY OF FAYETTEVILLE and I 20Water, CITY OF
FAYETTEVILLE owns all City Data.
6.12.2 Use of City Data. CITY OF FAYETTEVILLE hereby grants 120Water 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.
6.12 .3 Derivative Data and Us age Data. I 20Water shall irrevocably own all Derivative Data and
Usage Data and may use or disclose it in any way it chooses . "Usage Data" means statistical
data related to CITY OF FAYETTEVILLE's access to and use of the Services and data
derived from it , that is used by I 20Water, including to compile statistical and performance
information related to the provision of the Services and operation of the I 20Water Platform.
This Section 6 .12 shall s urvive any expiration or termination of this Agreement.
6 .12.4
6.12.5
6 .12.6
6 .12.7
Right to Use City Data and Name. Customer hereby grants I 20Water a worldwide,
non-exclusive , royalty-free , fully paid-up license to use , reproduce, perform , display, modify,
and distribute the City Data, and to use the trademarks and trade name of CITY OF
FAYETTEVILLE, in connection with providing the Services to CITY OF FAYETTEVILLE
hereunder.
Rights to intellectual property developed , utilized , or modified m the performance of the
Services shal I remain the property of I 20Water.
l20Water understands and acknowledges that CITY OF FAYETTEVILLE is a governmental
entity which is subject to applicable open records acts. CITY OF FAYETTEVILLE
und e rs ta nd s th a t I 20Water has co nfid e nti a l in fo rm a tion w hi ch is a trade secret a nd . th e refo re,
exe mpt fro m di sc los ur e und e r a pplica bl e open re co rd s a cts . Such in fo rm a ti o n is re la ted to the
Se rvic es o r the softw a re. pri c in g , te chnol ogy or co nte nt und e rl y in g th e Se rv ices, o r re la tin g to
a ny o th e r of I 20 Wate r 's or it s bu s in ess pa rtn ers ' products o r se rvice s (in c ludin g a ny beta
ve rs ion of a servi ce), software. tec hn o logy, c us to mers , bus in ess pl a ns, a nd o th er bu si ness
affair s. CITY OF FAYETTEVILLE ag rees no t to di sc lose o r use an y s uch con fi d e nt ia l
info rm at io n fo r a ny purp ose o ut s id e the sco pe of thi s Agree m e nt, w hich is c learl y m a rke d as
"CONF ID ENT IAL N OT SU BJ EC T TO DIS CLO S U R E" (o r s imil a r m a rkin g), exce pt w ith
t he I 20 Wa te r 's pri o r w ri tte n pe rmi ss io n o r if re quired by a ppl ica bl e law o r j udi c ia l o rder. If
CITY OF FAYETTEVILLE is co mpe ll e d by law a n o rd e r iss ued by a j ud ge o r publi c
co mp ete nt a uth o ri ty to di s close s uch c onfid e nti a l in fo rm atio n , it s ha ll prov id e I 20 Wate r w ith
pri o r no tic e of s uc h co mpe ll ed d isc los ur e (to th e ex te nt legall y pe rmi tte d). Thi s
co nfid enti a li ty ob liga ti o n as s ha ll re ma in in fo rce a nd effec t a t a ll ti mes during thi s
Agree me nt , a nd fo r a period of five years afte r te rmin a ti o n o r ex pi ra ti o n of thi s Agree me nt.
Any files delivered in electronic medium may not work on systems and software different
than those with which they were originally produced. I 20Water makes no warranty as to the
compatibility of these files with any other system or software. Because of the potential
degradation of electronic medium over time, in the event of a conflict between the s ealed
original drawings/hard copies and the electronic files , the sealed drawings/hard copies will
govern.
Servic es Co nt rac t 8
.------------------------------------------
6.13
6.13.1
6.13 .2
6.13
6.13.1
6.14
6.14.1
Intellectual Property.
Subject to the limited rights expressly granted hereunder, 120Water reserves all rights, title
and interest in and to the I 20Water Platform , including, but not limited to, all software,
technology and other materials associated therewith , all Documentation and content
(excluding City Data), other technical resources used by 120Water to provide the Services
(which Services include developing, training, te sting, correcting, and improving the I 20Water
Platform , such activities for which may include the use of City Data), all new programs ,
upgrades, modifications , or enhancements the foregoing developed by I 20Water in
connection with rendering the Services to CITY OF FAYETTEVILLE and all copies,
modifications and derivative works thereof, and all I 20Water trademarks , names, logos , and
all rights to patent, copyright, trade secret and other proprietary or intellectual property rights
therein . "Documentation" means the user guides and specifications for the Services that are
made available from time to time by 120Water in electronic or tangible form, but exc ludin g
any sales or marketing materials. CITY OF FAYETTEVILLE shall own all reports produced
by the 120Water Platform or provided by I 20Water pursuant to the applicable or
supplemented Appendix A . No rights are granted to CITY OF FAYETTEVILLE hereunder
other than as expressly set forth herein .
Feedback . If C ITY OF FAYETTEVILLE provides or otherwise makes availab le to I 20Water
any feedback, suggestions, recommendations , data, or other input regarding the I 20Water
Platform, Services, or Documentation, or resulting from CITY OF FAYETTEVILLE's use
thereof (collectively, "Feedback"), C ITY OF FAYETTEVILLE agrees to and does hereby
assign to I 20Water all right , title , and interest in and to all Feedback. I 20Water shal l not
publicly identify CITY OF FAYETTEV ILL E in any use of the Feedback. CITY OF
FAYETTEVILLE has no responsibility or liability for any Feedback or for I 20Water's use
thereof. 120Water agrees to indemnify, defend , and hold harmless CITY OF
FAYETTEVILLE for any use by 120Water of any Feedback.
Notices
Any Notice required under this Agreement will be in writing, addressed to the appropriate
party at the following addresses:
CITY OF FAYETTEVILLE's address:
113 West Mountain Street
Fayetteville , Arkansas 7270 I
I 20Water's address:
250 S Elm St
Zionsville, IN 46077
Successor and Assigns
CITY OF FAYETTEVILLE and 120Water each binds itself and its successors, exec utors,
administrators, and assigns to the other party of this Agreement and to the successors ,
executors, administrators , and ass igns of such other party, in respect to all covenants of this
Agreement; except as above, neither C ITY OF FAYETTEV ILL E nor 120Water sha ll assign ,
sub let , or transfer his interest in the Agreement without the written consent of the other, other
than in connection with a merger, acquisition, corporate reorganization, or sale of all or
substantially all of I 20Water 's assets or equity, provided that (a) if the assignee cannot
Services Contract 9
provide CITY OF FAYETTEVILLE with adequate written assurances of performance
reasonably acceptable to CITY OF FAYETTEVILLE, or (b) if the assignee is an entity with
whom CITY OF FAYETTEVILLE is prohibited by law or regulation from conducting
business, then CITY OF FAYETTEVILLE may terminate this Agreement. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of the parties , their respective
successors and permitted assigns. Any assignment in violation of this Agreement shall be of
no power or effect.
6 .15 Controlling Law
6 .15.1 This Agreement shall be subject to , interpreted and enforced according to the laws of the
State of Arkansas without regard to any conflicts of law provisions.
6 .16 Entire Agreement
6 .16. I This Agreement represents the entire Agreement between 120Water and CITY OF
FAYETTEVILLE relative to the Scope of Services described in Appendix A. Since terms
contained in purchase orders do not generally apply to professional services, in the event
CITY OF FAYETTEVILLE issues to 120Water a purchase order, no preprinted terms thereon
shall become a part of thi s Agreement. Said purchase order document, whether or not signed
by I 20Water, shall be considered as a document for CITY OF FA YETTEVI LLE 's internal
management of its operations. The background recitals form a material part of this
Agreement.
si::crmN 7 -SPECIAL CONDITIONS
7 .1 Additional Responsibilities of 120Water
7 .1.1 CITY OF FAYETTEVILLE 's review, approval, or acceptance of specifications, reports and
Services furnished hereunder shall not in any way relieve I 20Water of responsibility for the
technical adequacy of the work. Neither CITY OF FAYETTEVILLE's review, approval or
acceptance of, nor payment for any Services shall be construed as a waiver of any rights
under this Agreement or of any cause of action arising out of the performance of this
Agreement.
7.1 .2 I 20Water shall be and shall remain liable , in accordance with applicable law, for all damages
to CITY OF FAYETTEVILLE caused by 120Water 's negligent performance of any of the
Services furnished under this Agreement except for errors , omissions or other deficiencies to
the extent attributable to CITY OF FAYETTEVILLE or City Data. Notwithstanding the
foregoing, any damages related to the provision of Services under the Service Warranty will
be limited to the remedies under Section 6 .2.1.
7.1.3 I 20Water 's obligations under this clause are in addition to 120Water's other express or
implied assurances under this Agreement or State law and in no way diminish any other
rights that CITY OF FAYETTEVILLE may have against 120Water for faulty materials ,
equipment, or work, subject to the Service Warranty in Section 6.2.1.
7.2 Remedies
7 .2.1 Except as may be otherwise provided in this Agreement, all claims, counter-claims, disputes
and other matters in question between CITY OF FAYETTEVILLE and I 20Water arising out
Ser vic es Contrac t 10
of or relating to this Agreement or the breach th e reof will be decided in a court of competent
jurisdiction within Arkansas.
7.3 Audit : Access to Records
7.3 .1 I 20Water shall maintain books , records , documents and oth e r evidence directly pertinent to
performance on work under this Agreement in accordance with practices consistently applied
in effect on the date of execution of this Agreement. I 20Water shall also maintain the
financial information and data used by I 20Water in the preparation of support of the cost
submission required for any negotiated agreement or change order and send to CITY OF
FAYETTEVILLE a copy of the cost summary submitted. CITY OF FAYETTEVILLE, the
State or any of their authorized representatives shall have acces s to all such books, records ,
documents and other evidence for the purpose of inspection , audit and copying during normal
business hours. I 20Water will provide proper facilities for such access and inspection .
7.3.2 Records under Paragraph 7.3.1 above, shall be maintained and made available during
performance on assisted work under this Agreement and until three years from the date of
final payment. In addition , those records which relate to any controversy arising out of such
performance, or to costs or items to which an audit exception has been taken, shall be
maintained and made available until three years after the date of resolution of such appeal ,
litigation, claim or exception.
7.3.3 This right of access clause (with respect to financial record s) applies to :
7.3.3.1 Negotiated prime agreements:
7.3 .3 .2 Negotiated change orders or agreement amendments in excess of $10 ,000 affecting the
price of any formally advertised , competitively awarded , fixed price agreement:
7.3 .3.3 Agreements or purchase orders under any agreement other than a formally advertised,
competitively awarded , fixed price agreement. However, thi s right of access does not
apply to a prime agreement, lower tier subagreement or purchase order awarded after
effective price competition , except:
7.3 .3 .3 .1 With re s pect to record pertaining directly to s ubagreement performance , excluding
any financial records of 120Water;
7.3 .3 .3 .2 If there is any indication that fraud, gros s abuse or corrupt practices ma y be involved ;
7.3.3.3.3 If the subagreement is terminated for default or for convenience .
7.4 Covenant Against Contingent Fees
7.4.1 120Water warrants that no person or selling agency has been employed or reta ined to solicit
or secure this Agreement upon an agreement of understanding for a commission, percentage ,
brokerage or continent fee , excepting bona fide employees or bona fide established
commercial or selling agencies maintained by 120Water for the purpose of securing business .
For breach or violation of thi s warranty, CITY OF FAYETTEVILLE shall have the right to
annul this Agreement without liability or at its discretion, to deduct from the contract price or
consideration , or otherwise recover, the full amount of such commission , percentage ,
brokerage, or contingent fee .
Se rvice s Cont rac t 11
7 .5 Gratuities
7.5.1 If CITY OF FAYETTEVILLE finds after a notice and hearing that 120Water or any of
I 20Water 's agents or representatives , offered or gave gratuities (in the form of entertainment,
gifts or otherwise) to any official , employee or agent of CITY OF FAYETTEVILLE, in an
attempt to secure an agreement or favorable treatment in awarding, amending or making any
determinations related to the performance of this Agreement, CITY OF FAYETTEVILLE
may, by written notice to 120Water terminate this Agreement. CITY OF FAYETTEVILLE
may also pursue other rights and remedies that the law or this Agreement provides. However,
the existence of the facts on which CITY OF FAYETTEVILLE bases such finding shall be in
issue and may be reviewed in proceedings under the Remedies clause of this Agreement.
7.5 .2 In the event this Agreement is terminated as provided in Paragraph 7.5.1 , CITY OF
FAYETTEVILLE may pursue the same remedies against 120Water as it could pursue in the
event of a breach of the Agreement by I 20Water As a penalty, in addition to any other
damages to which it may be entitled by law, CITY OF FAYETTEVILLE may pursue
exemplary damages in an amount (as determined by CITY OF FAYETTEVILLE) which shall
be not less than three nor more than ten times the costs 120Water incurs in providing any such
gratuities to any such officer or employee .
7.6 Arkansas Freedom of Information Act
7 .6.1 City contracts and documents, including internal documents and documents of subcontractors
and sub-consultants, prepared while performing City contractual work are subject to the
Arkansas Freedom of Information Act (FOIA). If a Freedom of Information Act request is
presented to the CITY OF FAYETTEVILLE, 120Water will exercise commercially
reasonable efforts to provide the documents in a prompt and timely manner as prescribed in
the Arkansas Freedom of Information Act (A.C.A. §25-19-10 I et seq.), with the exception of
information described in Section 6.12 .7. Only legally authorized photocopying costs
pursuant to the FOIA may be assessed for this compliance .
[ Signature page follow s ]
Services Contract 12
IN WITNESS WHEREOF, CITY OF FAYETTEVILLE, ARKANSAS by and through its Mayor, and
I 20Water Audit, Inc., by its authorized officer, have made and executed this Agreement as of the day and
year first above written.
CITY OF FA 1ETTEVIL~ ARKANSAS
/
120 WATER AUDIT, INC.
Matthew Boes, Vice President of Sales
Title : Vice President of Sales
END OF AGREEMENT FOR PROFESSIONAL SERVICES
13