951 Martin Luther King Boulevard, Kissimmee, FL www.tohowater.com 407.944.5000
AGENDA
Thomas White WEDNESDAY, MAY 9, 2018 Chair, Ex-officio
Clarence L. Thacker Secretary 1. Meeting called to order
LeRue “Skip” Stellfox Supervisor #6 2. A. Moment of Silent Reflection
Domingo Sanchez B. Pledge of Allegiance Supervisor #1 3. Approval of the Agenda John A. Lambert Supervisor #4 4. Awards and Presentations: Brian L. Wheeler Executive Director 4A. RECOGNITION OF 2018 DROP SAVERS WATER
Michael W. Sweeney CONSERVATION POSTER CONTEST WINNERS (COX) Deputy Executive Director 5. Public Hearing VACANT General Counsel 6. Hear the Audience Nilsa C. Díaz Executive Assistant 7. Consent Agenda
The Consent Agenda is a technique designed to expedite handling of routine and miscellaneous business of the Board of Supervisors. The Board of Supervisors in one motion may adopt the entire Agenda. The motion for adoption is non-debatable and must receive unanimous approval. By request of any individual member, any item may be removed from the Consent Agenda and placed upon the Regular Agenda for debate.
7A. REQUEST APPROVAL OF THE TWA BOARD OF SUPERVISOR MEETING MINUTES OF MARCH 14, 2018 (DIAZ/WHEELER)
7B. REQUEST APPROVAL OF THE TWA BOARD OF SUPERVISOR MEETING MINUTES OF MARCH 28, 2018 (DIAZ/WHEELER)
7C. REQUEST APPROVAL OF THE TWA BOARD OF SUPERVISOR MEETING MINUTES OF APRIL 11, 2018 (DIAZ/WHEELER)
7D. REQUEST APPROVAL TO SOLE SOURCE PURCHASE MIEX RESIN FOR HARMONY WTP FROM IXOM WATERCARE, INC. (SS-18-071) (HOLMES)
7E. REQUEST APPROVAL OF A $495,370.97 CHANGE ORDER WITH GARNEY COMPANIES, INC. FOR THE AUDUBON ROAD AND DOVE COURT EMERGENCY GRAVITY SEWER REPLACEMENT (MATOS)
7F. REQUEST APPROVAL OF AMENDMENT #1 TO THE AGREEMENT WITH ACME BARRICADES, L.C. FOR TRAFFIC MAINTENANCE SERVICES (IFB-17-084) (HOLMES)
7G. REQUEST APPROVAL OF MAY ASSET DISPOSAL (HOLMES)
7H. REQUEST APPROVAL TO PURCHASE ONE VACUUM JETTER TRUCK FROM PAT’S PUMP AND BLOWER, LLC (PBA-18-083) (HOLMES)
7-I. REQUEST APPROVAL OF AMENDMENT #1 WITH A.C. SCHULTES OF FLORIDA, INC. FOR WELL ABANDONMENT SERVICES (IFB-16-121) (HOLMES)
7J. REQUEST APPROVAL OF AMENDMENT #1 WITH USSI, LLC FOR PROVISION OF INFLOW ABATEMENT SERVICES (IFB- 15-065) (NOYES)
7K. REQUEST APPROVAL OF AMENDMENT #2 FOR LANDSCAPE MAINTENANCE SERVICES OF LIFT STATIONS TO QUALITY LAWN SERVICES UNLIMITED, INC. (RFP-15- 027) (NIPPER)
7L. REQUEST APPROVAL OF 36-INCH PCCP REUSE MAIN RELOCATION FOR THE HOAGLAND BLVD. PHASE II REALIGNMENT PROJECT (ZHOU)
7M. REQUEST APPROVAL FOR REPLACEMENT OF THE PURCHASING WAREHOUSE TO ADVANCED ROOFING, INC. (IFB-18-054) (HOLMES)
7N. REQUEST APPROVAL OF THE CSX AGREEMENT FOR INTERCESSION CITY WATER MAIN REPLACEMENT PROJECT (EVERSOLE)
7-O. REQUEST APPROVAL OF CHANGE ORDER NO. 4 TO THE CONTRACT WITH POSPIECH CONTRACTING, INC. FOR THE MARYDIA SANITARY SEWER EXTENSION PROJECT (MATOS)
7P. REQUEST APPROVAL OF THE COLLABORATION SOLUTION: CISCO AUDIO/VISUAL COMMUNICATION REPLACEMENT (PBA-18-085) (RIOS)
7Q. REQUEST APPROVAL OF ACLARA TECHNOLOGIES, LLC AMI DATA COLLECTOR UNITS UPGRADE PROJECT (SS-18- 075) (HEWITT)
7R. REQUEST APPROVAL TO SOLE SOURCE PURCHASE IFIX SOFTWARE UPGRADES FROM GE INTELLIGENT PLATFORMS, INC. FOR DECENTRALIZATION OF WATER TREATMENT PLANTS’ FIELD INTERFACE UNIT (SS-18-077) (HOLMES)
7S. REQUEST APPROVAL OF NOTICE OF EMERGENCY REPAIR WORK COMPLETED ON N. JOHN YOUNG PARKWAY BY WW DANIELS COMPANY TO REPLACE PIPE BEFORE STATE’S ROAD WIDENING PROJECT BEGINS (EM-18-081) (BASHAM)
8. Informational Presentations
9. Unfinished Business
10. New Business
11. Staff Report: 11A. MONTHLY FINANCIAL REPORT MARCH 2018 (FIGUEROA)
Board Meeting Date: 5/9/2018
Category: Awards & Presentations Agenda Item: 4A
Department: Public Information Office
Attachments: Click here to enter text. Title:
RECOGNITION OF 2018 DROP SAVERS WATER CONSERVATION POSTER CONTEST WINNERS Summary: In celebration of the Florida American Water Works Association Annual Drop Savers posters contest, Toho Water Authority sponsored a water conservation poster contest earlier this year in the local schools. The contest encouraged students to create a poster depicting a water conservation idea, in slogan form, drawing form, or both. The contest allowed students to promote water awareness and the importance of water conservation in their daily routines.
Thirteen students from participating schools were selected for our yearly Water Conservation calendar. Students will be presented with a gift card and certificate. Students will also receive a calendar that contains their artwork. The students and their parents have been invited to attend the Board meeting.
Sunrise Elementary will receive a $500 gift card to purchase art supplies for having the student that was voted the grand prize winner for their art work. The grand prize winner scored the highest marks overall in aesthetic appeal and conservation idea/slogan.
Flora Ridge Elementary School will also receive a $250 gift card to purchase art supplies for having the most contest entries. Total Costs: Click here to enter text.
Recommended Action: Click here to enter text.
Initials: MRC
Board of Supervisors Regular Meeting Minutes MARCH 14, 2018
Present:
Chair Ex-officio Tom White Executive Director Brian L Wheeler Secretary Clarence Thacker Deputy Executive Director Mike Supervisor Domingo Sanchez Sweeney Supervisor John Lambert Executive Assistant Nilsa C Diaz Supervisor Skip Stellfox Interim General Counsel – Maureen Sikora
Absent: Kissimmee City Commissioner Wanda Rentas, Osceola County Commissioner Peggy Choudhry, Polk County Commissioner Todd Dantzler
1. Meeting called to order by: Time: Chair Ex-officio Tom White 5:00 PM 2. After a Moment of Silent Reflection, Supervisor Thacker led the attendees in the Pledge of Allegiance. 3. Approval of Agenda: Executive Director Brian Wheeler added an item under New Business, 10B. FY2018 SPONSORSHIPS. Supervisor Sanchez moved for approval of the Agenda with the addition of Item 10B and Supervisor Thacker seconded the motion. Motion passed 5 to 0.
4. Awards and Presentations: None
5. Public Hearing: None 6. Hear the Audience: No one came forth
7. Consent Agenda: Supervisor Thacker moved for Approval of the Consent Agenda as published and Supervisor Lambert seconded the motion. Motion passed 5 to 0. 7A. REQUEST APPROVAL OF THE TWA MEETING MINUTES FROM THE STRATEGIC PLANNING MEETING OF JANUARY 10, 2018 (DIAZ/WHEELER)
7B. REQUEST APPROVAL OF THE ENGINEERING SERVICES FOR RICHARD MCLAUGHLIN WATER TREATMENT PLANT WELL AND RAW WATER MAIN (EVERSOLE)
7C. REQUEST APPROVAL OF INCREASE IN COMPENSATION FOR POLYDYNE, INC. FOR THE SUPPLY AND DELIVERY OF POLYMER (IFB-17-102) (HOLMES)
Board of Supervisors Regular Meeting Minutes MARCH 14, 2018
7D. REQUEST APPROVAL TO PURCHASE ONE (1) FREIGHTLINER SERVICE TRUCK WITH A PALFINGER PSC-7229 CRANE FROM ORLANDO FREIGHTLINER (IFB-18-025) (HOLMES)
7E. REQUEST APPROVAL OF THE AGREEMENT WITH LYNCH OIL COMPANY, INC. FOR TANK WAGON FUEL SERVICES (PBA-18-053) (HOLMES)
7F. REQUEST APPROVAL TO PIGGYBACK THE NATIONAL ASSOCIATION OF STATE PROCUREMENT OFFICIALS (NASPO) AGREEMENT FOR ACCESS CONTROL, MAINTENANCE, AND MONITORING (PBA-18-057) (HOLMES)
7G. REQUEST APPROVAL OF A CONSULTING CONTRACT AND PROPOSAL IN THE AMOUNT OF $464,049 WITH CAROLLO ENGINEERS, INC. FOR CONSULTING SERVICES FOR AN INDIRECT POTABLE REUSE (IPR) PILOT STUDY TO BE LOCATED AT THE 160-ACRE RAPID INFILTRATION BASIN (RIB) SITE AND THE ASSOCIATED IMPERIAL REUSE PUMP STATION - RFQu-17-065 (BEATTY)
7H. REQUEST APPROVAL OF AN ADDENDUM WITH GARNEY CONSTRUCTION FOR THE GUARANTEED MAXIMUM PRICE FOR THE CONSTRUCTION PHASE OF THE LAKE MARION WATER RECLAMATION FACILITY REPLACEMENT AND EXPANSION PROJECT (IFB-17-038) (ZHOU)
7-I. REQUEST APPROVAL OF THE ACLARA SOFTWARE AND EQUIPMENT MAINTENANCE AND SUPPORT SERVICES RENEWAL (EX-16-066) (HOLMES)
7J. REQUEST APPROVAL OF THE KNIGHTSBRIDGE PHASE 1 DEVELOPER’S SERVICE AGREEMENT WITH PEGAH SABETI CO-TRUSTEE AND PARISA SABETI CO-TRUSTEE FOR KNIGHTSBRIDGE TEMPORARY 12” WATER MAIN (ANTHONY)
7K. REQUEST APPROVAL TO PIGGYBACK AGREEMENT BETWEEN FERGUSON ENTERPRISES, INC. AND VOLUSIA COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC) FOR THE PURCHASE AND SUPPLY OF WATER AND SEWER PRODUCTS (PBA-18-058) (HOLMES)
7L. REQUEST APPROVAL TO PURCHASE AN E.H. WACHS VALVE EXERCISER WITH TRAILER (SS-18-055) (HOLMES)
7M. REQUEST APPROVAL TO RECLASSIFY TWO OPEN CUSTOMER SERVICE FIELD TECHNICIAN POSITIONS INTO ONE NEW QUALITY ASSURANCE COORDINATOR POSITION AND TO RECLASSIFY ONE Board of Supervisors Regular Meeting Minutes MARCH 14, 2018
CUSTOMER SERVICE FIELD FOREMAN POSITION INTO ONE CUSTOMER SERVICE FIELD SUPERVISOR POSITION (HEWITT)
7N. REQUEST APPROVAL OF THE MLK DATACENTER CORE INFRASTRUCTURE REPLACEMENT FOR SWITCHES AND ROUTERS (PBA-18- 009) (RIOS)
7-O. REQUEST APPROVAL OF CONSTRUCTION CONTRACT AWARD (IFB-18- 042) FOR THE INTERCESSION CITY POTABLE WATER MAIN SYSTEM REPLACEMENT LOCATED NORTH OF U.S. HWY 17-92 PROJECT (NEWELL)
7P. REQUEST APPROVAL OF CONTRACT AWARDS TO BILL2PAY, LLC AND NORTHEAST II, INC. D/B/A TC DELIVERS (RFP-17-072) (HOLMES)
7Q. REQUEST APPROVAL OF THE FLORIDA DEPARTMENT OF TRANSPORTATION’S UTILITY WORK AGREEMENT FOR THE STATE ROAD 600 (US 17-92) UTILITY RELOCATION PROJECT (MATOS)
7R. REQUEST APPROVAL OF JACOBS CH2 AS THE TOP RANKED PROPOSAL AND FIRM FOR CONSULTING SERVICES FOR THE TWA STRATEGIC PLAN UPDATE (SWEENEY)
7S. REQUEST APPROVAL OF THE TWA BOARD MEETING MINUTES OF FEBRUARY 14, 2018 (DIAZ/WHEELER)
8. Informational Presentations:
9. Unfinished Business: 9A. GENERAL COUNSEL RESIGNATION AND PROCESS FOR REPLACEMENT (WHEELER) – Supervisor Lambert requested that the General Counsel resignation that occurred at the meeting of February 14, 2018 be placed on the agenda for discussion. Supervisor Lambert expressed his opinion that the Board action related to the resignation of the General Counsel should have occurred at a meeting in which the full Board was present and the subject was included in the agenda notice because of the importance of the action to give each Board member the opportunity to contribute to and participate in the decision process. The Board engaged in an extended discussion about Supervisor Lambert’s concerns and whether the Board should have delayed action until the full Board was present. Some of the Board took the position that delaying action on this issue until a full Board was present was not necessary and that action was Board of Supervisors Regular Meeting Minutes MARCH 14, 2018
appropriate provided there was a Board quorum. Supervisor Lambert requested that the Board reconsider its action of February 14th of accepting Mr. Mark Lawson’s resignation as General Counsel to allow the Board to further discuss Mr. Lawson’s performance, the decision to seek his immediate resignation, and the plan for securing a new General Counsel. Interim General Counsel Sikora advised the Board that a motion for reconsideration must be made by one of the Board members who voted for the motion to accept Mr. Lawson’s resignation. There was no motion made for reconsideration. Supervisor Lambert concluded the discussion by requesting that the Board refrain from taking action on issues of significant importance to the Authority without having the full Board present if possible. There was no action taken.
Executive Director Wheeler said that at the last meeting, Supervisor Thacker requested information on the amount that has been paid for attorney fees in the past. Executive Director Wheeler reported that the Authority has paid an average of $115K per year for General Counsel services. Executive Director Wheeler recommended that the Board contract with one of the four law firms with which the Authority has an existing relationship for services outside of General Counsel; Bryant Miller Olive (BMO), Gray Robinson, Holland & Knight or Akerman. Supervisor Sanchez asked whether Maureen Sikora, Associate General Counsel could act as General Counsel to which Ms. Sikora responded that she works for the Executive Director. Supervisor Sanchez asked how a firm would provide General Counsel services and whether the same attorney would be present at the meetings. Executive Director Wheeler recounted that BMO served as General Counsel for the Authority’s first ten years providing an attorney who acted as the primary contact. The Board discussed hiring an in- house attorney and there appeared to be consensus among the Board to have an in-house attorney. Executive Director Wheeler advised the Board that the cost of an in-house attorney would be greater than the cost of the Deputy General Counsel position the Authority had hired a few years ago. He advised that staff would need to research the pay for General Counsel position and provide an estimate of the cost range. The individual to be hired to serve as General Counsel would need to have sufficient knowledge and experience to be able to step into the position. Chair Ex-officio White stated that the Executive Director can report back to the Board on the staff research on pay for a General Counsel. 10. New Business:
10A. APPROVAL OF THE COMPREHENSIVE ANNUAL FINANCIAL REPORT FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2017 (HENDERSON) – Board of Supervisors Regular Meeting Minutes MARCH 14, 2018
Bill Blend presented a summary of the Comprehensive Annual Financial Report and reviewed the required audit reports contained in the document. Supervisor Thacker asked about the status of issues with the Information Technology (IT) portion of the audit that he remembered being cited in a previous report. Mr. Blend responded that the IT issues had been addressed and posed no concerns. He reminded the Board that the audit scope does not include a full Information Technology audit but only those functions that might impact the financial statement. Supervisor Sanchez moved for approval and Supervisor Lambert seconded the motion. Motion passed 5 to 0.
10B. SPONSORSHIPS 2018 –
This item was added on as a sponsorship for the Boys Scout's Golden Eagle Dinner. Supervisor Clarence Thacker moved for a sponsorship in the amount of $4000 and Supervisor Domingo Sanchez seconded the motion. Motion passed 5 to 0. 11A. MONTHLY FINANCIAL REPORT FOR JANUARY 2018 (FIGUEROA) - Ric Figueroa presented a PowerPoint presentation of the Financial activity within the Authority for the month of January. Mr. Figueroa fielded questions from the Board.
Board Officials: Executive Director Brian Wheeler reminded the Board of the Workshop on Monday, March 26th with the Executive Search Firm.
Adjournment: There being no further business to come before the Board, Chair Ex-officio White adjourned the meeting at 6:10 PM.
Approved:
______Tom E. White, Chair, Ex-officio
Attest:
______Clarence L. Thacker, Secretary
ncd
Board of Supervisors Regular Meeting Minutes MARCH 28, 2018
Present:
Chair Ex-officio Tom White Executive Director Brian L Wheeler Secretary Clarence Thacker Deputy Executive Director Mike Supervisor John Lambert Sweeney Supervisor Skip Stellfox Executive Assistant Nilsa C Diaz Supervisor Domingo Sanchez Osceola County Commissioner Peggy General Counsel – VACANT Choudhry
Absent:, Kissimmee City Commissioner Wanda Rentas, and Polk County Commissioner Todd Dantzler
11. Meeting called to order by: Time: Chair Ex-officio Tom White 5:00 PM 12. After a Moment of Silent Reflection, Supervisor Domingo Sanchez led the attendees in the Pledge of Allegiance. 13. Approval of Agenda: Supervisor Domingo Sanchez moved for approval of the Agenda as published and Supervisor Skip Stellfox seconded the motion. Motion passed 4 to 0.
14. Awards and Presentations: 4A. WATER CONSERVATION MONTH PROCLAMATION (COX) – Chair, Ex-officio Tom White read the Proclamation and Mark Grayson, Communications Specialist took pictures of Mr. White handing the Proclamation to Mary Cox, Public Information Coordinator. Supervisor John Lambert made a motion to approve the Proclamation and Supervisor Stellfox seconded the motion. Motion passed 4 to 0.
15. Public Hearing: 5A. PUBLIC HEARING TO ADD RECLAIMED WATER BASE CHARGE FOR 8” AND 10” METERS TO THE RATE TARIFF - RESOLUTION 2018-002 (HENDERSON): The public hearing was for the purpose of adopting a resolution establishing a base charge for 8 inch and 10 inch reclaimed water meters. Until recently the Authority did not have any reclaimed water services with meters larger than 6 inch. The recent addition of some accounts with larger reclaimed water meters necessitated the need for the base charge for an 8 and 10 inch meter. Chair Ex- officio White opened the Public Hearing and solicited comments on the proposed rate resolution from the audience. There were no public comments. Supervisor John Lambert made a motion for approval of Resolution 2018-002 and Supervisor Skip Stellfox seconded the motion. Motion passed 4 to 0.
Board of Supervisors Regular Meeting Minutes MARCH 28, 2018
16. Hear the Audience: Donnita Dampier, 7120 Osceola Polk Line Road, Davenport, FL 33896, Executive Director for the Osceola County Historical Society, addressed the Board to express her thanks for the sponsorships and support the Authority has provided to the Historical Society to date. Ms. Dampier gave a short PowerPoint presentation highlighting some special functions that have taken place and will be taking place in the near future. Scott Haskins, from CH2M, the consultant hired to assist with the production of TWA's new Strategic Plan, introduced himself and gave a brief overview about the Strategic Plan process. (Supervisor Clarence Thacker arrived at the meeting at 5:20 PM). 17. Consent Agenda: Supervisor John Lambert moved for approval of the Consent Agenda without any changes and Supervisor Clarence Thacker seconded the motion. Motion passed 5 to 0.
7A. REQUEST APPROVAL OF SCHULLER CONTRACTORS, INC. TIME AND MATERIALS COSTS FOR THE EMERGENCY GRAVITY SEWER CONNECTION FOR TACO BELL AT 3270 PLEASANT HILL RD. (NEWELL)
7B. REQUEST APPROVAL REQUEST FOR SCOPE OF SERVICES TO RE-RATE THE SANDHILL WRF (EVERSOLE)
7C. REQUEST APPROVAL OF MARCH ASSET DISPOSAL (HOLMES)
7D. REQUEST APPROVAL OF AMENDMENT #1 TO THE AGREEMENT WITH WIRING TECHNOLOGIES, INC. FOR VOICE, VIDEO, DATA, AND SECURITY CABLING INSTALLATION, MAINTENANCE, AND REPAIR SERVICES (PBA-18- 035) (HOLMES)
7E. REQUEST APPROVAL OF CHANGE ORDER NO. 2 WITH INSITUFORM TECHNOLOGIES, LLC FOR THE PHASE 2 – GRAVITY SEWER REHABILITATION AND REPLACEMENT, PROJECT 3: CURED-IN-PLACE PIPE (CIPP) LINING GRAVITY SEWERS AND MANHOLES REHABILITATION (IFB-17-120) NEWELL)
18. Informational Presentations
19. Unfinished Business:
9A. PROPOSED PLAN FOR INTERIM GENERAL COUNSEL (WHEELER) – Executive Director Wheeler explained that the recommendation with this agenda item to retain a law firm to serve as General Counsel on an interim basis until after the Board of Supervisors Regular Meeting Minutes MARCH 28, 2018
Authority had completed the Executive Director search, the Strategic Plan, and the Budget was based on a staff concern that the Authority may have too many major initiatives in process concurrently. The Executive Director advised the Board that based on separate conversations with some of the Board members that the Board desired to proceed immediately with the search for an in-house General Counsel. Chair Ex-officio White stated that he with the Executive Director and advised him that his understanding was that the Board had given direction to begin the search immediately for an in-house General Counsel. Supervisor Skip Stellfox advised the Board that he was of the opinion that the search for an in-house General Counsel should be postponed until after the search of the Executive Director was completed. The other three Supervisors, Thacker, Sanchez, and Lambert, expressed a desire to proceed with the in-house General Counsel search. Executive Director Wheeler requested that the Board establish the compensation range for the General Counsel position by motion as it was not a budgeted position and the compensation needed to be established for the recruitment process. Executive Director Wheeler reported that research of compensation for other General Counsel positions by Human Resources indicated a range of between $180,000 and $230,000 per year for existing positions. The Executive Director recommended advertising the position at around $160,000 annual salary because the individual would be new to the position. The Board engaged in a discussion of the appropriate salary range for the position based on the information provided. Supervisor Domingo Sanchez made a motion that the salary range for the new in-house General Counsel be set between $160K and $230K. Supervisor Clarence Thacker seconded the motion. Motion passed 5 to 0. Executive Director Wheeler said that a job description for the General Counsel position needs to be developed because there is presently not one. There was discussion of obtaining some assistance from the previous General Counsel, Mark Lawson, and the General Counsels from the City of Kissimmee and KUA. A draft job description will be presented to the Board at the next meeting for their comment and approval. The Board discussed the recruitment process with the Executive Director. The discussion focused on whether to utilize the process used previously to recruit the Deputy General Counsel and Associate General Counsel positions advertising through the Florida Bar Association or retaining the services of an executive search firm such as being utilized for the Executive Director search. The Board developed a consensus for a preference to utilize an executive search firm. There was also consensus to approach Renée Narloch who is performing the search for the Executive Director position to see if she could do the General Counsel search too. Supervisor Doming Sanchez made a motion for the Authority to engage an executive search firm for the in-house General Counsel search. Supervisor Clarence Thacker seconded the motion. Supervisor John Lambert recommended that the Authority not engage Renée Narloch for the General Counsel search if she did not have experience in this type of search. There was some discussion of Supervisor Lambert’s concern. In addition there was discussion and a concern for the time delay the search may encounter if Renée Narloch is not the experienced in recruiting public attorneys Board of Supervisors Regular Meeting Minutes MARCH 28, 2018 and the staff has to do a solicitation for a search firm. Supervisor Domingo Sanchez amended his motion to talk to Renée Narloch first to see if her firm can perform the search and if not then ask her for recommendations. Supervisor Clarence Thacker seconded the motion. Motion passed 5 to 0.
20. New Business
21. Staff Reports:
11A. MONTHLY FINANCIAL REPORT FOR FEBRUARY 2018 (FIGUEROA) – Ric Figueroa gave a PowerPoint presentation outlining the Authority's financial activity during the month of February.
11B. ENGINEERING CUSTOMER SERVICE SURVEY REPORT (BIRON)
11C. UPDATE ON DEVELOPMENT ACTIVITY WITHIN THE TOHOPEKALIGA WATER AUTHORITY SERVICE AREA (BIRON)
22. Board Officials:
Executive Director Wheeler advised the Board that the Governor had signed the Authority’s local bill. The TWA Board of Supervisors is now officially a 5 member board; however, the Board does not receive any compensation following the approval of the legislation.
Supervisor Lambert initiated discussion among the Board concerning the number of candidates for the Executive Director position to be submitted to the Board by Ms. Renée Narloch. There was consensus by the Board that they did not want to have 6 or 7 candidates brought before the Board but rather have the candidate list narrowed to three or four candidates. Ms. Narloch may have several other candidates in addition to the 3 to 4 submitted to the Board which she would hold in case none of those submitted were acceptable.
Board of Supervisors Regular Meeting Minutes MARCH 28, 2018
23. Adjournment:
There being no further business to come before the Board, Chair, Ex- officio White adjourned the meeting at 6:28 PM.
Approved:
______Tom E. White, Chair, Ex-officio
Attest:
______Clarence L. Thacker, Secretary
ncd
Board of Supervisors Regular Meeting Minutes APRIL 11, 2018
Present:
Chair Ex-officio Tom White Executive Director Brian L Wheeler Secretary Clarence Thacker Deputy Executive Director Mike Supervisor Domingo Sanchez Sweeney General Counsel – VACANT Administrative Assistant Veronica Vargas Absent: Supervisor John Lambert, Supervisor Skip Stellfox, Executive Assistant Nilsa C Diaz, Kissimmee City Commissioner Wanda Rentas, Osceola County Commissioner Peggy Choudhry, Polk County Commissioner Todd Dantzler
1. Meeting called to order by: Time: Chair Ex Officio Tom White 5:18 PM 2. Moment of Silent Reflection and Pledge of Allegiance. 3. Approval of Agenda: Chair, Ex-officio Tom White moved for approval of the Agenda as published and Supervisor Clarence Thacker seconded the motion. Motion passed 3 to 0.
4. Awards and Presentations: None
5. Public Hearing: None
6. Hear the Audience: No one came forth
7. Consent Agenda: Supervisor Clarence Thacker moved for approval of the Consent Agenda as published and Supervisor Tom White seconded the motion. Motion passed 3 to 0.
7A.REQUEST APPROVAL TO PIGGYBACK AGREEMENT BETWEEN CITY OF TALLAHASSEE AND ENVIRONMENTAL PRODUCTS GROUP, INC. D/B/A ENVIROSIGHT FOR A CCTV TRUCK (PBA-18-060) (HOLMES)
7B. REQUEST APPROVAL OF APPROVAL TO EXTEND THE ASPEN AGREEMENT FOR RENTAL OF MOBILE SLUDGE DEWATERING UNIT (IFB-16- 078) (HOLMES)
7C. REQUEST APPROVAL OF DESIGN SERVICES FOR SOUTH BERMUDA WRF ANTENNA REPLACEMENT AND UPGRADES (HOLMES)
Board of Supervisors Regular Meeting Minutes APRIL 11, 2018
7D. REQUEST APPROVAL OF A CONTRACT ADDENDUM WITH TETRA TECH FOR THE DESIGN, CONSTRUCTION SERVICES, AND WATER QUALITY CRITERIA EXEMPTION PERMITTING FOR THE CYPRESS LAKE WATER TREATMENT PLANT TEST CONCENTRATE DISPOSAL WELL (BEATTY)
7E. REQUEST APPROVAL OF AMENDMENT #6 TO EXTEND CONTRACT WITH INKTEL CONTACT CENTER SOLUTIONS, LLC FOR CALL CENTER SERVICES (BW-16-077) (HEWITT)
7F. REQUEST APPROVAL OF SCOPE OF ENGINEERING SERVICES FOR CELEBRATION FORCE MAIN REHABILITATION PROJECT (NOYES)
7G. REQUEST APPROVAL OF INFOR ANNUAL MAINTENANCE AND SUPPORT (EX-18-072) (HOLMES)
7H. REQUEST APPROVAL FOR ADDITIONAL CONTINGENCY FUNDS FOR THE CANTERBURY LANE UTILITY ADJUSTMENTS PROJECT (MATOS)
8. Informational Presentations:
8A. REPORT ON 2018 LEGISLATIVE SESSION BY THE AUTHORITY LOBBYIST (WHEELER)
Ryan Matthews of Peebles, Smith and Matthews, lobbyist for TWA, provided a brief overview of the 2018 Legislative Session. The session was dominated by the recovery costs associated with Hurricane Irma and the Parkland High School shooting. Mr. Matthews pointed out that this year is an election year and the legislature is more reserved in its approach to legislation. The TWA local bill passed and was signed by the Governor. Mr. Matthews summarized a few other bills of interest to the Authority. One bill that would have benefited the Authority was HB1149; however, the legislation was vetoed by the Governor as a result of some objections from some of the public. Mr. Matthews believes the bill would have been more successful had the public been better educated about the bill and its effects. Supervisor Domingo Sanchez thanked Mr. Ryan Matthews for his time and report.
9. Unfinished Business:
9A. REQUEST APPROVAL OF JOB DESCRIPTION FOR IN-HOUSE GENERAL COUNSEL (WHEELER)
Board of Supervisors Regular Meeting Minutes APRIL 11, 2018
Executive Director Brian Wheeler reported that because the in-house General Counsel position is new to the Authority there was need to develop a job description to assist in the recruitment and employment process. To assist in the development of a job description, Director of Human Resources Rebeca Martinez solicited feedback from multiple sources and developed a new job description. Supervisor Thacker stated that the job description should be corrected to delete any reference of the General Counsel reporting to the Executive Director and that the Associate General Counsel would report directly to the General Counsel. Chair, Ex-officio Tom White asked whether a search firm had been selected to conduct the General Counsel recruitment. Executive Director Wheeler reported that the Executive Search firm, Renée Narloch, does have experience recruiting for government attorney positions and has been retained for the search. The fee for the search will be the same as that for the Executive Director, $24,000. Executive Director Wheeler stated that Ms. Narloch has prepared a draft advertisement to append to the Executive Director recruitment brochure and will send it to the Board for review on Thursday, April 12, 2018. Chair, Ex-officio Tom White asked the Board whether they were in agreement with the proposed job description for the General Counsel position with the changes proposed by Supervisor Thacker. Receiving a verbal consensus from the Board member present Chair, Ex-officio White motioned to have the changes made to the job description for the In-house General Counsel as discussed and be provided to the Board for review. Supervisor Domingo Sanchez seconded the motion. Motion passed 3 to 0.
10. New Business: None
11. Staff Reports:
11A. PIO OFFICE Q2 REPORT 2018 (GRAYSON)
12. Board Officials:
Executive Director Brian Wheeler briefed the Board on the water main break at Storey Lake and stated that water service has been restored. Staff will pursue reimbursement from the company that caused the damage.
Mr. Wheeler suggested the cancellation of the April 25th Board meeting due to lack of Agenda items. Chair, Ex-officio Tom White made a motion to cancel the April 25th Board Meeting, Supervisor Thacker seconded. Motion passed 3 to 0.
Supervisor Domingo Sanchez asked whether the Board meetings should be changed from twice a month to once a month. Supervisors White and Thacker both stated that Board of Supervisors Regular Meeting Minutes APRIL 11, 2018 meetings should continue to be twice a month as some Agendas are quite full and that a meeting could be cancelled when there is not an agenda as is being done for the April 25th meeting.
Chair Ex-officio White asked the Executive Director to brief the Board on the meeting the Chair, Ex-officio and Executive Director had with the Mayor and City Manager for the City of Kissimmee concerning the Authority assisting the City with an affordable housing project. Executive Director Wheeler stated within the next month or two the Mayor and City officials wanted to address the Board of Supervisors concerning the potential donation of property from the Authority’s old Martin Street Water Reclamation Facility site for an affordable housing project adjacent to the H.O.M.E. facility. The City of Kissimmee has a goal of developing some affordable housing for the City to assist in addressing the lack of such housing within the City. Supervisor Thacker remembered an earlier presentation by the City several years ago in which there was discussion of obtaining a railroad crossing at Thacker Avenue as part of the project and land donation to benefit the Authority as well as the housing project. Executive Director Wheeler stated that the railroad crossing is still under consideration with the property donation though as an alternative, a stop light at the entrance to the South Bermuda site may be acceptable.
13. Adjournment:
There being no further business to come before the Board, Chair, Ex-officio White adjourned the meeting at 5:46 PM.
Approved:
______Tom E. White, Chair, Ex-officio
Attest:
______Clarence L. Thacker, Secretary
ncd
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7D
Department: Treatment Operations
Attachments: Click here to enter text. Title:
APPROVAL TO SOLE SOURCE PURCHASE MIEX RESIN FOR HARMONY WTP FROM IXOM WATERCARE, INC. (SS-18-071) Summary: The raw groundwater at the Harmony Water Treatment Plant has naturally occurring high levels of dissolved organic carbon. When chlorine is added to the raw water for disinfection, the chlorine reacts with the organic carbon and disinfection by- products (DBPs) are formed. DBPs are considered to be a potential health threat if consumed over long periods of time and; therefore, are regulated by the FDEP and EPA through established maximum contaminant levels. Exceeding the regulatory maximum contaminant levels for DBPs can result in consent orders and subsequent fines.
To reduce the formation of DBPs, a Miex Water Treatment System (WTS) was added to the process at the Harmony Water Plant. The MIEX WTS utilizes ion exchange resin to remove a portion of the organic carbon from the raw groundwater prior to the addition of chlorine for disinfection thereby reducing DBP formation. To work effectively, the resin requires regeneration; due to the continual regeneration process, the resin loses its effectiveness over time. Also, a portion of the resin is lost to the treatment process. Therefore, the addition of resin is necessary as it is depleted, with occasional replacement of the entire resin batch as its treatment ability degrades. Typically at Harmony, the resin is depleted up to a rate of 20 to 24 gallons per week. Additionally, the resin treatment batch must be completely replaced approximately three times per year at a rate of 300 gallons per replacement cycle. TWA utilizes seven to eight 265- gallon totes per year. Each tote costs approximately $14,100, for an annual cost of $126,900 plus an approximately $15,000 annually for freight. The resin used in the Miex process is proprietary and can only be obtained from the company that owns and manufactures the Miex process, IXOM Watercare, Inc.; hence, the resin must be sole sourced.
Florida Statutes require sole source purchases above established thresholds to be publicly noticed. The Toho Water Authority’s Procurement Manual establishes a $15,000 threshold for publicly noticing sole sourced purchases. To comply with the Florida Statute and TWA’s Procurement Manual requirements, staff posted TWA’s intent to sole source purchase Miex resin on April 2, 2018 through April 12, 2018. There was no response to the public notice. Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7D
Total Costs: $141,900 Recommended Action: Staff requests approval to purchase MIEX resin for the Harmony Water Treatment Plant from IXOM Watercare, Inc. Initials: FH
Board Meeting Date: 4/25/2018
Category: Consent Agenda Agenda Item: 7E
Department: Engineering Services
Attachments: Location Map Title:
APPROVAL OF A $495,370.97 CHANGE ORDER WITH GARNEY COMPANIES, INC. FOR THE AUDUBON ROAD AND DOVE COURT EMERGENCY GRAVITY SEWER REPLACEMENT Summary: On November 8, 2017, the Board approved awarding the construction contract for the Audubon Road and Dove Court Gravity Sewer Replacement project to Garney Companies, Inc. in the amount of $418,517. On December 13, 2017 the Board approved Change Order No. 1 with Garney in the amount of $215,514.43 to replace an additional 448 LF of 10” vitrified clay pipe (VCP) in order to correct an existing negative slope in the gravity sewer mains on Audubon Road located between S. Dove Court and Cardinal Court. On February 14, 2018 the Board approved Change Order No. 2 with Garney in the amount of $110,981.05 to replace an additional 234 LF of 10” VCP in order to correct an existing negative slope condition in the gravity sewer main on Audubon Road located between S. Dove Court and Eagle Court. This request is for approval of Change Order No. 3 with Garney in the amount of $495,370.97.
Following the approval of Change Order No. 02, Garney began installing the new 10” PVC gravity sewer main between S. Dove Court and Eagle Court. During installation of the pipe (approximately 300 ft.), Garney encountered issues with settlement of the newly installed PVC pipe and the newly installed manhole located at Audubon Road and S. Dove Court. TWA’s Geotechnical Consultant, Ardaman & Associates, obtained soil borings to evaluate the existing soil strata and why the settlement occurred. Results indicated an existing unstable, saturated clayey sand bedding soil. Ardaman recommended vibrating and compacting stone into the soil in 6” lifts to form a solid base for the pipe bedding. Garney attempted this and reinstalled two pipe sections; however, settlement still occurred. Ardaman performed additional exploration and analysis and determined that the relatively deep sand soils underlying the clayey bedding soils had been significantly loosened and raveled causing an artesian condition with groundwater “boiling” throughout the length of pipe that was installed. This is an uncommon condition in Central Florida trench excavation and is considered an unforeseen condition and not addressed in the bid documents. To stabilize the disturbed soils, a chemical grout program was recommended by Ardaman. TWA contracted directly with Board Meeting Date: 4/25/2018
Category: Consent Agenda Agenda Item: 7E a chemical grouting contractor to inject grout below the pipe bedding to stabilize the soil in order for Garney to re-install the new PVC pipe and the new manhole.
Change Order No. 3 covers the costs incurred related to the unstable subsurface soil conditions and subsequent downtime, in addition to the labor and equipment to re-install the 300 ft. of 10” PVC gravity sewer main and the newly installed manhole located at Audubon Road and S. Dove Court. Change Order No. 3 also includes repairing an existing 6” water main adjacent to the 10” gravity sewer main. The existing gate valve was not restrained to the water main causing the pipe to separate from the valve. Garney restrained the gate valve and replaced the pipe that separated from the valve in order to restore service quickly.
The work will be funded budgeted gravity sewer rehabilitation funds. Total Costs: $495,370.97 Recommended Action: Staff recommends approval of Change Order No. 3 in the amount of $495,370.97 to Garney Companies, Inc. for the Audubon Road and Dove Court Gravity Sewer Replacement project. Initials: QN/EM
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7F
Department: Procurement Services
Attachments: Click here to enter text.
Title:
APPROVAL OF AMENDMENT #1 TO THE AGREEMENT WITH ACME BARRICADES, L.C. FOR TRAFFIC MAINTENANCE SERVICES (IFB-17-084) Summary: Toho Water Authority’s Field Services Division regularly rents barricades, cones, signs, etc., as well as temporary traffic control and flagging services. Procurement issued Invitation for Bid (IFB-17-084) for traffic maintenance services, and on July 12, 2017, the Board approved award to Acme Barricades, L.C.
As part of the temporary traffic control and flagging services, Acme furnishes, installs, maintains, and removes all traffic control devices and equipment, including light towers for night work, and provides all necessary labor, materials, supervision, equipment, tools, apparatus, transportation, mileage, and required insurance in accordance with the bid’s specifications. The Contractor is required to be at the site of an emergency within two hours of notification, twenty-four (24) hours per day, seven (7) days per week, on an as-needed basis. The MOT setup is to be in place within three (3) hours of notification. The Contractor also inspects all traffic control devices every 8 hours for malfunctions, misplacements, or removal of devices by others.
The Field Services Division is pleased with the services currently provided by the staff of Acme Barricades and would like to renew the contract.
This Amendment will extend the Agreement for one year through July 11, 2019, with the option to extend subject to written notice of agreement. Based on current spending patterns, the cost for these services is estimated to be approximately $480,000 for this period. Estimated Total Cost: Approximately $480,000 annually Recommended Action: Staff recommends approval to renew the Agreement with Acme Barricades, L.C. for traffic maintenance services. Initials: tlp/fh
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7G
Department: Procurement Services
Attachments: N/A
Title:
APPROVAL OF MAY ASSET DISPOSAL Summary: Asset disposal is a requirement set forth in Chapter 274, Florida Statutes that is intended to maximize returns on excess and surplus property by transferring the property or disposing of it through a public auction, bid, posted prices, trade-in, or donation. A list has been compiled of the Authority’s inventory items examined and recommended for disposal. If approved, these inventory items will be disposed of and written-off the accounting ledgers.
Items marked for donation - Staff requests the Board’s approval to dispose of the computer items listed below through a donation and destruction. On June 11, 2008, the Board approved donating surplus computers to non-profit organizations on a first come first serve basis regardless of business location or where services are provided. A list of non-profit agencies is maintained by the Procurement Services Department. In order for an agency to be declared as non-profit, they must show documentation that they are certified as a 501 (c) (3) organization by the IRS. On April 25, 2012, the Board updated this policy to have items donated to organizations and schools who are system users located and provided services within the Authority service area, before donating same to other 501 (c) (3) organizations or schools.
Items marked for auction – Staff requests the Board’s approval to dispose of the items listed below through online auction. Disposal of the vehicles retires them from the Authority’s fleet and removes the related insurance carrying costs.
Items marked for disposal – Staff requests approval from the Board to discard items marked for disposal. These items have been tested by Information Technology staff who determined these items are unable to be repaired.
Items marked for recycling – Staff requests approval from the Board to sell metal materials for salvage value through recycling.
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7G
TAG# ITEM & DESCRIPTION SERIAL # / VIN # Items marked for donation N/A Dell P190Sf Monitor CN-0GRNWX-72872-09N-DOPI
N/A Dell AC100Monitor CN-0CJ319-72872-724-2ATL
N/A Dell 2007WFPD Monitor MX-0HF730-46634-64P-29EL
Items marked for auction
18541 Chevrolet Silverado 4x4 Pickup (2006) (WS-134) 3GCEK14X66G249369 COK- Micromaster Microscope 92188 09627 19123 Toshiba Model #FC-3530C CZD913243
18248 Motorola Radio 466CEE0403 Motorola Radio 16300 466AUW2437 Motorola Radio 17231 466ABS5717 Motorola Radio 17305 433ACA2157 Motorola Radio 17306 466ACA2156 Motorola Radio 18574 687TGG2493
Items marked for disposal
N/A
Items marked for disposal via recycling N/A
Total Cost: N/A Recommended Action: Staff recommends Board approval to dispose of the listed inventory items through donation, auction, disposal, or recycling. Initials:tlp/fh
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7H
Department: Procurement Services
Attachments: Pat’s Pump and Blower Quote Title: APPROVAL TO PURCHASE ONE VACUUM JETTER TRUCK FROM PAT’S PUMP AND BLOWER, LLC (PBA-18-083) Summary: The FY18 budget for vehicle purchases included funding to buy an industrial sewer cleaning vehicle via the Florida Sheriffs Association cooperative fleet contract or local bid the Field Services Department. The Florida Sheriffs Association awarded Bid #FSA17-VEH15.0 to Pat’s Pump and Blower, LLC, and to Southern Sewer Equipment Sales for this type of equipment. Procurement requested pricing based on this contract, which is as follows:
FLORIDA SHERIFFS CONTRACT PRICING SUMMARY
Retailer Manufacturer Total Price Pat’s Pump and Blower Aquatech $371,260.00 Southern Sewer Equipment Sales Vac-Con $384,689.90
TWA staff members have previously received training to operate the Aquatech equipment.
The Field Services Department has requested to purchase the Aquatech vacuum jetter truck. Total Cost: $371,260.00 Recommended Action: Staff recommends approval of the purchase of one Aquatech vacuum jetter truck from Pat’s Pump and Blower, LLC. Initials: tlp/fh
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7-I
Department: Procurement Services
Attachments: Amendment #1 with A.C. Schultes of Florida, Inc.
Title:
APPROVAL OF AMENDMENT #1 WITH A.C. SCHULTES OF FLORIDA, INC. FOR WELL ABANDONMENT SERVICES (IFB-16-121) Summary:
TWA has several water treatment plants that were decommissioned but never demolished. For public health and safety reasons, the wells need to be officially abandoned. Hazards created by inactive wells include contamination of ground water and the small chance someone could actually fall in a well.
Well abandonment is accomplished by filling the well holes with clay pellets that congeal once wet, followed by grout to fill and seal the casing so that no water or dirt can penetrate the well hole.
The following 17 well holes need to be abandoned.
Poinciana WTP #1 (1988) Poinciana WTP #3 (1983) Fountain Park #1 Ruby #3 Poinciana WTP #1 (1972) Pine Ridge Estates #1 Fountain Park #2 Ruby #4 Poinciana WTP #4 (1986A) Pine Ridge Estates #2 Windsong Poinciana WTP #3 (1972) Fountains #1 Tropical Park #1 Poinciana WTP #3 (1974) Fountains #2 Tropical Park #2
A.C. Schultes of Florida, Inc., TWA’s contracted firm to provide well services has estimated 105 hours for well pump handling rig and crew, 290 hours for service truck and crew, 6,000 bags of Bentonite pellets, and 500 bags of Portland cement will be needed to close the 17 wells. The hourly rates, plus the pellets and cement, total $159,445.
Funding for the well abandonment services is allocated in Capital Project #118009.
Total Cost: Not to exceed $159,445
Recommended Action: Staff recommends approval of Amendment #1 to the agreement with A.C. Schultes of Florida, Inc. for services to water supply wells and well pumps. Initials:fh AMENDMENT #1 TO THE AGREEMENT BETWEEN TOHO WATER AUTHORITY AND A.C. SCHULTES OF FLORIDA, INC.
THIS AMENDMENT is made and entered between TOHOPEKALIGA WATER AUTHORITY, 951 Martin Luther King Boulevard, Kissimmee, Florida 34741 (hereinafter referred to as the “AUTHORITY”) and A.C. SCHULTES OF FLORIDA, INC., 11865 U.S. Highway 41, South, Gibsonton, Florida 33534 (hereinafter referred to as the “CONTRACTOR”).
W I T N E S S E T H:
WHEREAS, the AUTHORITY desires to maintain the contractual services of the CONTRACTOR to continue to provide maintenance and emergency repair services for water supply wells and well pumps on an as-needed basis as further described in the Agreement IFB-16- 121, approved on July 12, 2017, between the AUTHORITY and the CONTRACTOR; and
WHEREAS, pursuant to Section 23, titled “Modifications,” the covenants, terms and provisions of the Agreement may be modified by way of a written instrument, mutually accepted by the parties; and
WHEREAS, the purpose of this Amendment is to revise Section 5, titled “Compensation;”
NOW, THEREFORE, in consideration of the mutual covenants, terms, and provisions contained herein, the parties agree as follows:
1. Section 5, titled “COMPENSATION,” is hereby amended to read as follows:
SECTION 5. COMPENSATION
A. The amount to be paid under this Agreement for services rendered shall be in accordance with the unit prices listed in the original bid submittal, Exhibit ‘A,’ attached hereto.
B. Compensation for services completed by the CONTRACTOR will be paid in accordance with section 218.70, Florida Statutes, Florida’s Prompt Payment Act.
C. Services to be performed in accordance with this Agreement are subject to the annual appropriation of funds by TWA. In its sole discretion, TWA reserves the right to forego use of the CONTRACTOR for any project which may fall within the Scope of Services listed herein. In the event TWA is not satisfied with the services provided by the CONTRACTOR, TWA will hold any amounts due until such time as the CONTRACTOR has appropriately addressed the problem.
2. These changes shall be effective upon this Amendment being executed by both parties.
3. The terms and conditions of the original Agreement and any subsequent Amendment(s) shall remain in full force and effect. To the extent of any conflict between this Amendment and the original Agreement or any prior Amendment(s) thereto, the terms and conditions of this Amendment shall prevail.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Amendment effective the _____ day of ______, 2018.
A.C. SCHULTES OF FLORIDA, INC. TOHOPEKALIGA WATER AUTHORITY By: ______Print Name: ______By: ______Title: ______Print Name: Tom White Title: Chair, Ex-Officio Attest: ______Print Name: ______Attest: Nilsa C. Diaz Address: ______Print Name: ______Address: 951 Martin Luther King Blvd. Kissimmee, Florida 34741
STATE OF ______COUNTY OF ______
The foregoing instrument was executed before me this _____ day of ______, 2018 by ______as ______of A.C. SCHULTES OF FLORIDA, INC. who personally swore or affirmed that he is authorized to execute this contract and thereby bind the Company, and who is personally known to me OR has produced identification.
______
Notary Public, State of ______
(Stamp)
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7J
Department: Procurement Services
Attachments: Amendment #1 with USSI, LLC Title: APPROVAL OF AMENDMENT #1 WITH USSI, LLC FOR PROVISION OF INFLOW ABATEMENT SERVICES (IFB-15-065) Summary: Water that flows into the collection system from groundwater and surface water is called infiltration and inflow (I/I). I/I consumes hydraulic capacity in the collection system and treatment capacity at the water reclamation facilities. An effective program to reduce excessive I/I promotes:
• the designed capacity of the collection system and reclamation facilities is available to transport and treat wastewater, • the number of Sanitary Sewer Overflows caused by increased flow are reduced, and • the additional cost of electricity and chemicals to transport and treat this water is minimized. Inflow is surface water due to rain events that enters the collection system from yard, roof and footing drains, from illegal cross-connections with storm drains, downspouts, and through holes and fractures in manhole covers, frames and chimneys and through broken or missing clean-outs, caps and risers. An inflow abatement program seeks to eliminate these potential paths of rain and surface water from entering into the collection system. TWA’s inflow abatement program includes the following key components.
1. Smoke testing of the gravity sewer is used to identify any possible points of access for surface water to enter into the collection system. If smoke can escape out of the collection system then surface water can enter. 2. The interior of the frame and chimney manholes are sealed with a material that will provide a water tight barrier. Manhole frames are cast iron that are affixed to a cementitious surface (either directly to the cone or chimney). Since metallic and cementitious materials expand and contract at different rates over time, separation will occur between these surfaces. Additionally, a chimney, whether made of bricks or riser rings, introduces additional joints that over time may separate and provide a path for water. 3. Inflow dishes, placed in the manholes between the frame and the cover, provide a near water tight seal. Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7J
4. Damaged service lateral cleanouts (both private and public) are identified during the smoke testing. This damage is addressed either by replacing missing or damaged caps, repairing cleanout risers or inserting a removable plug in the riser of cleanouts that have been damaged multiple times. This program has been utilized at over twenty-eight lift station basins and has resulted in a reduction in lift station pump run time increases during and immediately following rain events. It has been demonstrated to be effective in improving the barrier between surface water and the collection system.
In May of 2015, the Board awarded the contract for provision of in-flow abatement services to USSI, LLC. The Engineering Department has found their service to be satisfactory and requests to renew the agreement for an additional two-year period through May 26, 2020. Total Cost: Future services under this contract will be authorized through the addenda process whereas as scope is identified by staff and an addendum for that scope will be generated and approved. Recommended Action: Staff recommends approval of Amendment #1 to the agreement USSI, LLC for the provision of inflow abatement services. Initials:tn/fh
AMENDMENT #1 TO THE AGREEMENT BETWEEN TOHO WATER AUTHORITY AND USSI, LLC
THIS AMENDMENT is made and entered between TOHOPEKALIGA WATER AUTHORITY, 951 Martin Luther King Boulevard, Kissimmee, Florida 34741 (hereinafter referred to as the “AUTHORITY”) and USSI, LLC., 752 Commerce Drive, Suite 15, Venice, Florida 34292 (hereinafter referred to as the “CONTRACTOR”).
W I T N E S S E T H:
WHEREAS, the AUTHORITY desires to maintain the contractual services of the CONTRACTOR to continue to provide in-flow abatement services on an as-needed basis as further described in the Agreement IFB-15-065, approved on May 27, 2015, between the AUTHORITY and the CONTRACTOR; and
WHEREAS, pursuant to Section 24, titled “Modification,” the covenants, terms and provisions of the Agreement may be modified by way of a written instrument, mutually accepted by the parties; and
WHEREAS, the purpose of this Amendment is to extend the term;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and provisions contained herein, the parties agree as follows:
1. Section 1, titled “TERM,” is hereby amended to read as follows:
The term of this Agreement is hereby amended to extend through May 26, 2020 and may be extended upon mutual agreement of both parties when in the best interest of the AUTHORITY.
2. These changes shall be effective upon this Amendment being executed by both parties.
3. The terms and conditions of the original Agreement and any subsequent Amendment(s) shall remain in full force and effect. To the extent of any conflict between this Amendment and the original Agreement or any prior Amendment(s) thereto, the terms and conditions of this Amendment shall prevail.
(Signature page follows.)
IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Amendment effective the _____ day of ______, 2018.
USSI, LLC TOHOPEKALIGA WATER AUTHORITY By: ______Print Name: ______By: ______Title: ______Print Name: Tom White Title: Chair, Ex-Officio Attest: ______Print Name: ______Attest: Nilsa C. Diaz Address: ______Print Name: ______Address: 951 Martin Luther King Blvd. Kissimmee, Florida 34741
STATE OF ______COUNTY OF ______
The foregoing instrument was executed before me this _____ day of ______, 2018 by ______as ______of USSI, LLC who personally swore or affirmed that he is authorized to execute this contract and thereby bind the Company, and who is personally known to me OR has produced identification.
______
Notary Public, State of ______
(Stamp)
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7K
Department: Procurement Services
Attachments: Amendment #2 with Quality Lawn Services Unlimited Inc. Title: APPROVAL OF AMENDMENT #2 FOR LANDSCAPE MAINTENANCE SERVICES OF LIFT STATIONS TO QUALITY LAWN SERVICES UNLIMITED, INC. (RFP-15-027) Summary: Three years ago the Board approved award of an agreement to Quality Lawn Services Unlimited, Inc. to provide lawn mowing services for lift stations. The agreement provides for the mowing, trimming, edging of grass, and application of weed killer to rock beds for more than 400 lift stations located throughout the TWA service area.
The Operations Department has found Quality Lawn Services Unlimited, Inc. (QLS) to provide exemplary services and desires to have the contractor continue providing services for an additional year through May 31, 2019. QLS, of Saint Cloud, has agreed to extend the contract for another year with the same terms, conditions, and pricing in effect.
Amendment #2 extends the term of the agreement one additional year. It also adds 19 new lift stations and removes 3 lift stations that are no longer in use. TWA staff requests the Board approve Amendment #2 with QLS for another year of service. Total Costs: $65,000 annually Recommended Action: Staff recommends approval of Amendment #2 to the Agreement with Quality Lawn Services Unlimited, Inc. for lawn maintenance services of the lift stations. Initials: FH/RN
AMENDMENT # 2 TO THE AGREEMENT BETWEEN TOHOPEKALIGA WATER AUTHORITY AND QUALITY LAWN SERVICES UNLIMITED INC
THIS AMENDMENT is made and entered between TOHOPEKALIGA WATER AUTHORITY, 951 Martin Luther King Boulevard, Kissimmee, Florida 34741 (hereinafter referred to as the “AUTHORITY”) and QUALITY LAWN SERVICES UNLIMITED INC, 222 Jersey Avenue, St. Cloud, Florida 34769 (hereinafter referred to as the “CONTRACTOR”).
W I T N E S S E T H: WHEREAS, the AUTHORITY desires to maintain and the CONTRACTOR desires to continue to provide landscaping services for the lift stations as further described in the Agreement RFP-15-027, approved by the Board of Supervisors April 22, 2015, between the AUTHORITY and the CONTRACTOR, and
WHEREAS, pursuant to Section 24, Modification, the covenants, terms, and provisions of the Agreement may be modified by way of a written instrument, mutually accepted by the parties, and
WHEREAS, the purpose of this Amendment is to revise the list of lift station locations to be serviced and to extend the term.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and provisions contained herein, the parties agree as follows:
1. Section 1, titled “Term,” is hereby amended to add the following:
SECTION 1. TERM
The term of this Agreement is amended to extend through May 31, 2019, and may be extended upon mutual agreement of both parties when in the best interest of the Authority.
2. Exhibit B, the Section titled “Lift Stations,” is hereby amended to provide landscaping services to the revised list of lift station locations in accordance with Exhibit “B”, Revised List of Lift Stations attached hereto and incorporated herein.
3. Section 5, titled “Compensation,” is hereby amended to read as follows:
SECTION 5. COMPENSATION
The amount to be paid under this agreement for services rendered shall not exceed Sixty-Five Thousand Dollars ($65,000) for year four (4) of this agreement for a total amount not to exceed amount of Two Hundred Fifty Thousand Dollars ($250,000) for the term of this agreement.
4. These changes shall be effective upon this Amendment being executed by both parties.
5. The terms and conditions of the original Agreement and any subsequent Amendment(s) shall remain in full force and effect. To the extent of any conflict between this Amendment and the original Agreement or any prior Amendment(s) thereto, the terms and conditions of this Amendment shall prevail.
[THIS SPACE IS INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Amendment effective the _____ day of ______, 2018.
QUALITY LAWN SERVICES TOHOPEKALIGA WATER UNLIMITED, INC. AUTHORITY
By: ______By: ______Print Name: ______Print Name: Tom White Title:______Title: Chair Ex-Officio
Attest: ______Attest: ______Print Name: ______Print Name: Nilsa C. Diaz Address: ______Address: 951 Martin Luther King Blvd ______Kissimmee, Florida 34741.
STATE OF ______COUNTY OF ______
The foregoing instrument was executed before me this _____ day of ______, 2018, by ______as ______of Quality Lawn Services Unlimited, Inc., who is personally swore or affirmed that he is authorized to execute this document and thereby bind the company, and who is personally know to me OR has produced identification.
______Notary Public, State of ______
40
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7L
Department: Engineering Services
Attachments: Location Map, Addendum Title: 36-INCH PCCP REUSE MAIN RELOCATION FOR THE HOAGLAND BLVD. PHASE II REALIGNMENT PROJECT Summary: The Board of Supervisors is requested to approve the relocation of approximately 475 feet of 36” reuse main for the Hoagland Blvd. Phase II Realignment Project with Garney Companies, Inc. (Garney), a TWA continuing contractor.
The existing 36” Prestressed Concrete Cylinder Pipe (PCCP) reuse transmission main was installed approximately 30 years ago and requires relocation in order to accommodate the construction of an Osceola County bridge over the SunRail tracks for the Hoagland Blvd. Phase II Realignment Project. This reuse main is a critical asset that provides reuse disposal from the South Bermuda Water Reclamation Facility (WRF), the Camelot WRF, and the Poinciana WRFs to the Rapid Infiltration Basins (RIB) located in western Osceola County.
Hoagland Phase II roadway project design was initiated in 2011. The project has been delayed and the construction schedule frequently changed. Based on the latest schedule from the County, the Phase II roadway construction will be initiated in October 2018 and the construction of the 36” PCCP reuse main relocation needs to be completed before October 1, 2018. The 36” ductile iron pipe and PCCP adapters required to construct the relocation project typically take approximately 60-90 days to acquire. The construction is estimated to take approximately 45 days to complete. In order to eliminate a potential impact to the roadway construction schedule, staff is requesting approval of the 36” reuse main relocation work to be performed by Garney on a time and material basis. This will eliminate the 45 day bid and award period typical for this scale and complexity of work. Additionally as one of the major construction companies in the country, Garney has resources to be able to acquire the 36” ductile iron pipe in less than 60-90 days. Garney is experienced with the specialized PCCP construction techniques and recently completed the PCCP replacement at SunRail Crossing along Old Tampa Hwy for the Authority on a time & materials basis and the costs were reasonable. A time & material contract is a type of construction contract that the contractor is compensated based on the actual time spent to perform the work and materials and equipment used in construction.
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7L
The anticipated construction cost estimated by Garney for the 36” PCCP reuse main relocation is $848,000. Upon project completion, the final construction cost will be reported to the Board. The PCCP reuse main to be relocated is located on a property with unclear ownership. A portion of the property within the proposed Hoagland Blvd. alignment was claimed via a maintenance plat by Osceola County in 2016, long after the 36” reuse main was constructed on the property. Due to TWA’s prior possession and use of the property, the County has agreed to share 25% of the relocation cost up to $300,000.
The project will be funded by Reserves. The project budget is included in the draft budget for FY 2019 and the funds will be returned to Reserves.
Total Costs: $848,000 Recommended Action: Staff recommends approval of the construction cost and award to Garney Companies, Inc. for the 36” PCCP reuse main relocation. Initials: lz
Board Meeting Date: 05/09/2018
Category: Consent Agenda Agenda Item: 7M
Department: Procurement Services
Attachments: Agreement with Advanced Roofing, LLC Title: APPROVAL TO REPLACEMENT OF THE PURCHASING WAREHOUSE TO ADVANCED ROOFING, INC. (IFB-18-054) Summary: During the past few years, Maintenance Operations has had to patch the Procurement Services warehouse roof multiple times to stop leaks. The leaks have damaged boxes containing stock items, caused TWA to have to replace shelving on rows nine and ten of the building, and created other hazardous situations. As a result, the Operations Department performed a condition assessment and determined the roof replacement that was originally scheduled for FY 2019 needed to be moved up to FY 2018.
Procurement Services issued a bid for replacement of the existing roof. Two (2) bids were received in response to the solicitation.
BID SUMMARY
Bidder Total Price Advanced Roofing, Inc. $62,670 Grove Construction Corporation $88,100
Upon review of the submittals, Advanced Roofing, Inc. was determined to be the lowest responsive, responsible bidder meeting the bid’s specifications. Total Cost: $62,670 Recommended Action: Staff recommends approval of award to Advanced Roofing, Inc. for the replacement of the Procurement Services warehouse located at South Bermuda. Initials: FH
SECTION 00500 AGREEMENT
THIS AGREEMENT is dated as of the ______day of______in the year 2018 by and between Tohopekaliga Water Authority (TWA), 951 Martin Luther King Boulevard, Kissimmee, Florida 34741 and Advanced Roofing, Inc., 1950 NW 22ND Street, Fort Lauderdale, Florida 33311.
TWA and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows:
ARTICLE 1. WORK
CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows:
The Work to be done consists of furnishing all labor, equipment, materials and services required to permit and install a new roof system at the Warehouse/Procurement Office Building. Services will include removal of the existing roof panels, ridge-vents, insulation, edge trim, gutters and downspouts, temporary removal of lightning protection and equipment as required, installation of new metal roof panel, ridge-vents, insulation, edge trim materials, gutter and downspouts and reinstallation of items temporarily removed.
The project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows:
ARTICLE 2. ENGINEER
2.1 DESIGN ARCHITECT as named in the Contract Documents shall mean: Bentley Architects + Engineers, Inc.
2.2 ENGINEER will be named at the Preconstruction Conference.
ARTICLE 3. CONTRACT TIME
3.1 The provisions regarding Contract Time and Liquidated Damages set forth in the Bid Form and may also be set forth in the Supplementary Conditions.
ARTICLE 4. CONTRACT PRICE
4.1 TWA shall pay CONTRACTOR for performance of the Work in accordance with the Contract Documents on the basis of the prices indicated on the Bid Form.
ARTICLE 5. PAYMENT PROCEDURES
CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in the General Conditions.
00500-1 5.1 Progress Payments. TWA shall make progress payments on the basis of CONTRACTOR's Applications for Payment as recommended by ENGINEER, in accordance with Article 14 of the General Conditions.
5.1.1 Prior to Substantial Completion progress payments will be in an amount equal to ninety percent (90%) of the Work completed, and at the option of the TWA, the TWA may pay an amount equal to ninety percent (90%) of materials and equipment not incorporated in the Work but delivered and suitably store, less in each case the aggregate of payments previously made. In no event shall payments for materials and equipment stored on site exceed ninety percent (90%) of the value of the related cost for the specific item of work shown in the breakdown of Contract Price regardless of the stated value of the materials or equipment. TWA may, at its sole option, pay an amount equal to ninety percent (90%) of materials and equipment not incorporated in the Work stored off-site if stored in a manner acceptable to TWA, as stated above for on-site stored materials. When payment to CONTRACTOR is made for stored materials and equipment, CONTRACTOR shall submit invoices marked paid by the supplier with the next month's request for payment to document that CONTRACTOR has paid for said materials and equipment or the previously paid amount for stored materials shall be deducted from any remaining payment(s) or retainage for any stored materials not so properly documented.
5.1.2 Upon Substantial Completion of all the Work, TWA may at its option pay an amount sufficient to increase total payments to CONTRACTOR to ninety-five percent (95%) of the value of the substantially completed work. TWA will consider recommendations of ENGINEER in accordance with Article 14 of the General Conditions.
5.2 Final Payment. Upon final completion and acceptance of the Work in accordance with paragraph 14.9.1 of the General Conditions, TWA shall pay the remainder of the Contract Price as provided in said paragraph 14.9.1
ARTICLE 6. RETAINAGE IN ANTICIPATION OF LIQUIDATED DAMAGES TWA may withhold additional retainage if CONTRACTOR is behind schedule and it is anticipated by TWA that the Work will not be completed within the Contract Time. The retainage may equal but not exceed $500 per day as defined as liquidated damages for failure to meet the substantial completion date.
ARTICLE 7. CONTRACTOR'S REPRESENTATIONS In order to induce TWA to enter into this Agreement, CONTRACTOR makes the following representations:
7.1 CONTRACTOR has familiarized himself with the nature and extent of the Contract Documents, Work, locality, weather, and with all local conditions and federal, state and local laws, ordinances, rules, policies and regulations that in any manner may affect cost, progress or performance of the Work. 7.2 CONTRACTOR has studied carefully all reports of investigations and tests of subsurface and latent physical conditions of the site or otherwise affecting cost, progress or performance of the Work which were relied upon by ENGINEER in the preparation of the Drawings and Specifications and which have been identified in the Contract Documents.
00500-2 7.3 CONTRACTOR has made or caused to be made examinations, investigations and tests and studies of such reports and related data in addition to those referred to in paragraph 7.2 as he deems necessary for the performance of the Work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents; and no additional examinations, investigations, tests, reports or similar data are or will be required by CONTRACTOR for such purposes.
7.4 CONTRACTOR has correlated the results of all such observations, examinations, investigations, tests, reports and data with the terms and conditions of the Contract Documents.
7.5 CONTRACTOR has given ENGINEER written notice of all conflicts, errors or discrepancies that he has discovered in the Contract Documents and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR.
ARTICLE 8. CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between TWA and CONTRACTOR are made a part hereof and consist of the following:
8.1 This Agreement.
8.2 Certificates of Insurance.
8.3 Payment Bond and Performance Bond (or Public Construction Bond as required by the Contract Documents).
8.4 Notice of Award.
8.5 General Conditions.
8.6 Supplementary Conditions
8.7 Supplemental General Conditions for Federally Assisted Construction Contracts.
8.8 Specifications bearing the title and consisting of the divisions as listed in table of contents thereof.
8.9 Drawings, as listed in the Index of Drawings Section 01000 of the General Requirements.
8.10 Addenda numbers ______to ______, inclusive.
8.11 CONTRACTOR's Bid (including documentation accompanying the bid and documentation prior to Notice of Award).
8.12 Documentation submitted by CONTRACTOR prior to Notice of Award.
8.13 Any Modification, including Change Orders and Field Orders, duly delivered after execution of Agreement.
00500-3 8.14 Invitation for Bid, Instruction to Bidders, Bid Bond and Affidavit of Non-Collusion, Proposal, Notice to Proceed, and Sworn Statement.
8.15 Certificate of Substantial Completion, Certificate of Final Inspection and Contractor's Release. There are no Contract Documents other than those listed above in this Article 8. The Contract Documents may only be altered, amended or repealed by a Modification (as defined in Section 1 of the General Conditions). ARTICLE 9. MISCELLANEOUS 9.1 Terms used in this Agreement which are defined in Article 1 of the General Conditions shall have the meanings indicated in the General Conditions.
9.2 No assignments by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound and any such assignment shall be void and of no effect; and specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will lease or discharge the assignor from any duty or responsibility under the Contract Documents.
9.3 TWA and CONTRACTOR each binds himself, his partners, successors, assigns and legal representatives to the other party hereto, his partners, successors, assigns and legal representatives in respect to all covenants, agreements and obligations contained in the Contract Documents.
9.4 Waiver of Jury Trial; Legal Costs. It is mutually agreed by and between the Contract and OWNER that each of the parties do hereby waive trial by jury in any action, proceeding or claim which may be brought by either of the parties hereto against the other on any matters concerning or arising out of this Agreement. In any such action, the prevailing party shall be entitled to an award of fees and charges of attorneys, engineers, architects and other professionals and court costs, including those incurred in appellate proceedings.
ARTICLE 10. OTHER PROVISIONS In consideration of the CONTRACTOR's Indemnity Agreement as set out in the Contract Documents, TWA specifically agrees to give the CONTRACTOR $ and other good and valuable consideration, receipt of which is hereby acknowledged.
(This portion is intentionally left blank.)
00500-4 IN WITNESS WHEREOF, the parties hereto have signed three (3) copies of this Agreement. At least one counterpart each has been delivered to TWA and CONTRACTOR. All portions of the Contract Document have been signed or identified by TWA and CONTRACTOR or by ENGINEER on their behalf. This Agreement will be effective on only ______, 20______.
At least one counterpart each has been delivered to TWA and CONTRACTOR.
All portions of the Contract Document have been signed or identified by TWA and CONTRACTOR or by TWA Representative on their behalf. This Agreement will be effective on , 2018.
TOHOPEKALIGA WATER AUTHORITY ADVANCED ROOFING, INC.
Chairman, Board of Supervisors
By Name (CORPORATE SEAL) (Type) Attest: Title (CORPORATE SEAL) Title Attest:
Address for giving notices: Title
Address for giving notices:
APPROVED AS TO FORM AND LEGALITY Florida State Contractor's For the use and reliance of the License No. Tohopekaliga Water Authority only , 2018 Agent for service of process:
TWA Attorney Name
Street Address
City, State and Zip
END OF SECTION
00500-5 Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7N
Department: Engineering Services
Attachments: Location Map, Agreement Title: CSX AGREEMENT FOR INTERCESSION CITY WATER MAIN REPLACEMENT PROJECT Summary: The Board is requested to approve a Facility Encroachment Agreement (“Agreement”) with CSX Transportation, Inc. (“CSX”) for installation of a 24” water main as part of the Intercession City Galvanized Water Main Replacement Project (“Project”).
On March 14, 2018 the Board awarded the construction contract for the Project to Andrew Sitework, Inc. to replace the 65 year old water distribution system in Intercession City and extend a 24” water transmission main. The existing water distribution system in Intercession City is in poor condition and generates an unacceptable number of repair work orders due to leaks, main breaks, and low pressure complaints. The 24” transmission main is part of a regional water supply development and transmission effort for the Water Cooperative of Central Florida partners (i.e. TWA, Orange County Utilities, Polk County Utilities, City of St. Cloud and Reedy Creek Improvement District). A section of the proposed 24” transmission main will cross the CSX railroad tracks requiring an Agreement with CSX and payment of associated fees and insurance.
The Agreement provides the Authority a license to install, operate, and maintain the proposed water main within CSX Right-of-Way in exchange for an Application Review Fee ($4,000), License Fee ($5,100), and Railroad Protective Liability Insurance & Surcharge ($1,500). The Railroad Protective Liability Insurance is required when construction occurs within 50 feet of the tracks.
The Authority’s in-house counsel has reviewed and approved the document.
This Agreement will be funded by the budgeted Intercession City project. Total Costs: $10,600 less $4,000 previously submitted with permit application. Recommended Action: Staff recommends approval of the Agreement and associated fees and insurance in the amount of $10,600. Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7N
Initials: ghe
PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
FACILITY ENCROACHMENT AGREEMENT
THIS AGREEMENT, made and effective as of January 19, 2018, by and between CSX TRANSPORTATION, INC., a Virginia corporation, whose mailing address is 500 Water Street, Jacksonville, Florida 32202, hereinafter called "Licensor," and TOHOPEKALIGA WATER AUTHORITY, a municipal corporation, political subdivision or state agency, under the laws of the State of Florida, whose mailing address is 951 Martin Luther King Blvd, Kissimmee, Florida 34741, hereinafter called "Licensee," WITNESSETH:
WHEREAS, Licensee desires to construct (unless previously constructed and designated as existing herein), use and maintain the below described facility(ies), hereinafter called "Facilities," over, under or across property owned or controlled by Licensor, at the below described location(s):
1. One (1) twenty-four inch (24'') diameter sub-grade pipeline crossing, solely for the conveyance of potable water, located at or near Intercession City, Osceola County, Florida, Jacksonville Division, Sanford Subdivision, Milepost A-814.96, Latitude N28:15:45., Longitude W81:30:18.; hereinafter, called the ''Encroachment,'' as shown on print(s) labeled Exhibit "A," attached hereto and made a part hereof;
NOW, THEREFORE, in consideration of the mutual covenants, conditions, terms and agreements herein contained, the parties hereto agree and covenant as follows:
1. LICENSE:
1.1 Subject to Article 17, Licensor, insofar as it has the legal right, power and authority to do so, and its present title permits, and subject to:
(A) Licensor's present and future right to occupy, possess and use its property within the area of the Encroachment for any and all purposes;
(B) All encumbrances, conditions, covenants, easements, and limitations applicable to Licensor's title to or rights in the subject property; and
(C) Compliance by Licensee with the terms and conditions herein contained; does hereby license and permit Licensee to construct, maintain, repair, renew, operate, use, alter or change the Facilities at the Encroachment above for the term herein stated, and to remove same upon termination.
1.2 The term Facilities, as used herein, shall include only those structures and ancillary facilities devoted exclusively to the transmission usage above within the Encroachment, and as shown on attached Exhibit A.
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1.3 No additional structures or other facilities shall be placed, allowed, or maintained by Licensee in, upon or on the Encroachment except upon prior separate written consent of Licensor.
2. ENCROACHMENT FEE; TERM:
2.1 Licensee shall pay Licensor a one-time nonrefundable Encroachment Fee of FIVE THOUSAND ONE HUNDRED AND 00/100 U.S. DOLLARS ($5,100.00) upon execution of this Agreement. Licensee agrees that the Encroachment Fee applies only to the original Licensee under this Agreement. In the event of a successor (by merger, consolidation, reorganization and/or assignment) or if the original Licensee changes its name, then Licensee shall be subject to payment of Licensor's current administrative and document preparation fees for the cost incurred by Licensor in preparing and maintaining this Agreement on a current basis.
2.2 However, Licensee assumes sole responsibility for, and shall pay directly (or reimburse Licensor), any additional annual taxes and/or periodic assessments levied against Licensor or Licensor's property solely on account of said Facilities or Encroachment.
2.3 This Agreement shall terminate as herein provided, but shall also terminate upon: (a) Licensee's cessation of use of the Facilities or Encroachment for the purpose(s) above; (b) removal of the Facilities; (c) subsequent mutual consent; and/or (d) failure of Licensee to complete installation within five (5) years from the effective date of this Agreement.
2.4 In further consideration for the license or right hereby granted, Licensee hereby agrees that Licensor shall not be charged or assessed, directly or indirectly, with any part of the cost of the installation of said Facilities and appurtenances, and/or maintenance thereof, or for any public works project of which said Facilities is a part.
3. CONSTRUCTION, MAINTENANCE AND REPAIRS:
3.1 Licensee shall construct, maintain, relocate, repair, renew, alter, and/or remove the Facilities, in a prudent, workmanlike manner, using quality materials and complying with any applicable standard(s) or regulation(s) of Licensor (CSXT Specifications), or Licensee's particular industry, or any governmental or regulatory body having jurisdiction over the Encroachment.
3.2 Location and construction of Facilities shall be made strictly in accordance with design(s) and specifications furnished to and approved by Licensor and of material(s) and size(s) appropriate for the purpose(s) above recited.
3.3 All of Licensee's work, and exercise of rights hereunder, shall be undertaken at time(s) satisfactory to Licensor, and so as to eliminate or minimize any impact on or interference with the safe use and operation of Licensor's property and appurtenances thereto.
Page 2 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
3.4 In the installation, maintenance, repair and/or removal of said Facilities, Licensee shall not use explosives of any type or perform or cause any blasting without the separate express written consent of Licensor. As a condition to such consent, a representative will be assigned by Licensor to monitor blasting, and Licensee shall reimburse Licensor for the entire cost and/or expense of furnishing said monitor.
3.5 Any repairs or maintenance to the Facilities, whether resulting from acts of Licensee, or natural or weather events, which are necessary to protect or facilitate Licensor's use of its property, shall be made by Licensee promptly, but in no event later than thirty (30) days after Licensee has notice as to the need for such repairs or maintenance.
3.6 Licensor, in order to protect or safeguard its property, rail operations, equipment and/or employees from damage or injury, may request immediate repair or renewal of the Facilities, and if the same is not performed, may make or contract to make such repairs or renewals, at the sole risk, cost and expense of Licensee.
3.7 All work on the Encroachment shall be conducted in accordance with Licensor's safety rules and regulations.
3.8 Licensee hereby agrees to reimburse Licensor any loss, cost or expense (including losses resulting from train delays and/or inability to meet train schedules) arising from any failure of Licensee to make repairs or conduct maintenance as required by Section 3.5 above or from improper or incomplete repairs or maintenance to the Facilities or Encroachment.
3.9 In the event it becomes necessary for the Licensee to deviate from the approved Exhibit, Licensee shall seek prior approval from Licensor, or when applicable, an official field representative of Licensor permitted to approve changes, authorizing the necessary field changes and Licensee shall provide Licensor with complete As-Built Drawings of the completed work. As-Built Drawings shall be submitted to Licensor in either electronic or hard copy form upon the substantial completion of the project and upon Licensor’s request.
4. PERMITS, LICENSES:
4.1 Before any work hereunder is performed, or before use of the Encroachment for the contracted purpose, Licensee, at its sole cost and expense, shall obtain all necessary permit(s) (including but not limited to zoning, building, construction, health, safety or environmental matters), letter(s) or certificate(s) of approval. Licensee expressly agrees and warrants that it shall conform and limit its activities to the terms of such permit(s), approval(s) and authorization(s), and shall comply with all applicable ordinances, rules, regulations, requirements and laws of any governmental authority (State, Federal or Local) having jurisdiction over Licensee's activities, including the location, contact, excavation and protection regulations of the Occupational Safety and Health Act (OSHA) (29 CFR 1926.651(b)), et al., and State "One Call" - "Call Before You Dig" requirements.
Page 3 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
4.2 Licensee assumes sole responsibility for failure to obtain such permit(s) or approval(s), for any violations thereof, or for costs or expenses of compliance or remedy.
5. MARKING AND SUPPORT:
5.1 With respect to any subsurface installation or maintenance upon Licensor's property, Licensee, at its sole cost and expense, shall:
(A) support track(s) and roadbed in a manner satisfactory to Licensor;
(B) backfill with satisfactory material and thoroughly tamp all trenches to prevent settling of surface of land and roadbed of Licensor; and
(C) either remove any surplus earth or material from Licensor's property or cause said surplus earth or material to be placed and distributed at location(s) and in such manner Licensor may approve.
5.2 After construction or maintenance of the Facilities, Licensee shall:
(A) Restore any track(s), roadbed and other disturbed property; and
(B) Erect, maintain and periodically verify the accuracy of aboveground markers, in a form approved by Licensor, indicating the location, depth and ownership of any underground Facilities or related facilities.
5.3 Licensee shall be solely responsible for any subsidence or failure of lateral or subjacent support in the Encroachment area for a period of three (3) years after completion of installation.
6. TRACK CHANGES:
6.1 In the event that rail operations and/or track maintenance result in changes in grade or alignment of, additions to, or relocation of track(s) or other facilities, or in the event future use of Licensor's rail corridor or property necessitate any change of location, height or depth in the Facilities or Encroachment, Licensee, at its sole cost and expense and within thirty (30) days after notice in writing from Licensor, shall make changes in the Facilities or Encroachment to accommodate such track(s) or operations.
6.2 If Licensee fails to do so, Licensor may make or contract to make such changes at Licensee's cost.
7. FACILITY CHANGES:
7.1 Licensee shall periodically monitor and verify the depth or height of the Facilities or Encroachment in relation to the existing tracks and facilities, and shall relocate the
Page 4 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
Facilities or change the Encroachment, at Licensee's expense, should such relocation or change be necessary to comply with the minimum clearance requirements of Licensor.
7.2 If Licensee undertakes to revise, renew, relocate or change in any manner whatsoever all or any part of the Facilities (including any change in circumference, diameter or radius of pipe or change in materials transmitted in and through said pipe), or is required by any public agency or court order to do so, plans therefor shall be submitted to Licensor for approval before such change. After approval, the terms and conditions of this Agreement shall apply thereto.
8. INTERFERENCE WITH RAIL FACILITIES:
8.1 Although the Facilities/Encroachment herein permitted may not presently interfere with Licensor's railroad or facilities, in the event that the operation, existence or maintenance of said Facilities, in the sole judgment of Licensor, causes: (a) interference (including, but not limited to, physical or interference from an electromagnetic induction, or interference from stray or other currents) with Licensor's power lines, communication, signal or other wires, train control system, or electrical or electronic apparatus; or (b) interference in any manner, with the operation, maintenance or use of the rail corridor, track(s), structures, pole line(s), devices, other property, or any appurtenances thereto; then and in either event, Licensee, upon receipt of written notice from Licensor of any such interference, and at Licensee's sole risk, cost and expense, shall promptly make such changes in its Facilities or installation, as may be required in the reasonable judgment of the Licensor to eliminate all such interference. Upon Licensee's failure to remedy or change, Licensor may do so or contract to do so at Licensee's sole cost.
8.2 Without assuming any duty hereunder to inspect the Facilities, Licensor hereby reserves the right to inspect same and to require Licensee to undertake repairs, maintenance or adjustments to the Facilities, which Licensee hereby agrees to make promptly, at Licensee's sole cost and expense.
9. RISK, LIABILITY, INDEMNITY:
With respect to the relative risk and liabilities of the parties, it is hereby agreed that:
9.1 To the fullest extent permitted by State law (constitutional or statutory, as amended), Licensee hereby agrees to, defend, indemnify, and hold Licensor harmless from and against any and all liability, loss, claim, suit, damage, charge or expense which Licensor may suffer, sustain, incur or in any way be subjected to, on account of death of or injury to any person whomsoever (including officers, agents, employees or invitees of Licensor), and for damage to or loss of or destruction of any property whatsoever, arising out of, resulting from, or in any way connected with the construction, repair, maintenance, replacement, presence, existence, operations, use or removal of the Facilities or any structure in connection therewith, or restoration of premises of Licensor to good order or condition after removal, EXCEPT when proven to have been caused solely by the willful misconduct or gross negligence of Licensor. HOWEVER, to the fullest extent permitted by State law, during any period of actual
Page 5 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922 construction, repair, maintenance, replacement or removal of the Facilities, wherein agents, equipment or personnel of Licensee are on the railroad rail corridor, Licensee's liability hereunder shall be absolute, irrespective of any joint, sole or contributory fault or negligence of Licensor.
9.2 Use of Licensor's rail corridor involves certain risks of loss or damage as a result of the rail operations. Notwithstanding Section 9.1, Licensee expressly assumes all risk of loss and damage to Licensee's Property or the Facilities in, on, over or under the Encroachment, including loss of or any interference with use or service thereof, regardless of cause, including electrical field creation, fire or derailment resulting from rail operations. For this Section, the term "Licensee's Property" shall include property of third parties situated or placed upon Licensor's rail corridor by Licensee or by such third parties at request of or for benefit of Licensee.
9.3 To the fullest extent permitted by State law, as above, Licensee assumes all responsibility for, and agrees to defend, indemnify and hold Licensor harmless from: (a) all claims, costs and expenses, including reasonable attorneys' fees, as a consequence of any sudden or nonsudden pollution of air, water, land and/or ground water on or off the Encroachment area, arising from or in connection with the use of this Encroachment or resulting from leaking, bursting, spilling, or any escape of the material transmitted in or through the Facilities; (b) any claim or liability arising under federal or state law dealing with either such sudden or nonsudden pollution of air, water, land and/or ground water arising therefrom or the remedy thereof; and (c) any subsidence or failure of lateral or subjacent support of the tracks arising from such Facilities leakage.
9.4 Notwithstanding Section 9.1, Licensee also expressly assumes all risk of loss which in any way may result from Licensee's failure to maintain the required depth and encasement for any underground Facilities, whether or not such loss(es) result(s) in whole or part from Licensor's contributory negligence or joint fault.
9.5 Obligations of Licensee hereunder to release, indemnify and hold Licensor harmless shall also extend to companies and other legal entities that control, are controlled by, subsidiaries of, or are affiliated with Licensor, as well as any railroad that operates over the rail corridor on which the Encroachment is located, and the officers, employees and agents of each.
9.6 If a claim is made or action is brought against Licensor, and/or its operating lessee, for which Licensee may be responsible hereunder, in whole or in part, Licensee shall be notified to assume the handling or defense of such claim or action; but Licensor may participate in such handling or defense.
9.7 Notwithstanding anything contained in this Agreement, the limitation of liability contained in the state statutes, as amended from time to time, shall not limit Licensor's ability to collect under the insurance policies required to be maintained under this Agreement.
10. INSURANCE:
Page 6 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
10.1 Prior to commencement of surveys, installation or occupation of premises pursuant to this Agreement, Licensee shall procure and shall maintain during the continuance of this Agreement, at its sole cost and expense, a policy of
(i) Statutory Worker's Compensation and Employers Liability Insurance with available limits of not less than ONE MILLION AND 00/100 U.S. DOLLARS ($1,000,000.00), which must contain a waiver of subrogation against CSXT and its Affiliates;
(ii) Commercial General Liability coverage (inclusive of contractual liability) with available limits of not less than FIVE MILLION AND 00/100 U.S. DOLLARS ($5,000,000.00), naming Licensor, and/or its designee, as additional insured and in combined single limits for bodily injury and property damage and covering the contractual liabilities assumed under this Agreement. The evidence of insurance coverage shall be endorsed to provide for thirty (30) days' notice to Licensor, or its designee, prior to cancellation or modification of any policy. Mail CGL certificate, along with agreement, to CSX Transportation, Inc., Speed Code J180, 500 Water Street, Jacksonville, FL 32202. On each successive year, send certificate to [email protected].
(iii) Business automobile liability insurance with available limits of not less than ONE MILLION AND 00/100 U.S. DOLLARS ($1,000,000.00) combined single limit for bodily injury and/or property damage per occurrence;
(iv) Such other insurance as Licensor may reasonably require.
10.2 If Licensee's existing CGL policy(ies) do(es) not automatically cover Licensee's contractual liability during periods of survey, installation, maintenance and continued occupation, a specific endorsement adding such coverage shall be purchased by Licensee. If said CGL policy is written on a "claims made" basis instead of a "per occurrence" basis, Licensee shall arrange for adequate time for reporting losses. Failure to do so shall be at Licensee's sole risk.
10.3 Licensor, or its designee, may at any time request evidence of insurance purchased by Licensee to comply with this Agreement. Failure of Licensee to comply with Licensor's request shall be considered a default by Licensee.
10.4 Securing such insurance shall not limit Licensee's liability under this Agreement, but shall be security therefor.
10.5 (A) In the event Licensee finds it necessary to perform construction or demolition operations within fifty feet (50') of any operated railroad track(s) or affecting any railroad bridge, trestle, tunnel, track(s), roadbed, overpass or underpass, Licensee shall: (a) notify Licensor; and (b) require its contractor(s) performing such operations to procure and maintain during the period of construction or demolition operations, at no cost to Licensor, Railroad Protective Liability (RPL) Insurance, naming Licensor, and/or its designee, as Named Insured, written on the current ISO/RIMA Form (ISO Form No. CG 00 35 01 96) with limits of FIVE MILLION AND 00/100 U.S. DOLLARS ($5,000,000.00) per occurrence for bodily injury and
Page 7 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922 property damage, with at least TEN MILLION AND 00/100 U.S. DOLLARS ($10,000,000.00) aggregate limit per annual policy period, with Pollution Exclusion Amendment (ISO CG 28 31 11 85) if an older ISO Form CG 00 35 is used. The original of such RPL policy shall be sent to and approved by Licensor prior to commencement of such construction or demolition. Licensor reserves the right to demand higher limits.
(B) At Licensor's option, in lieu of purchasing RPL insurance from an insurance company (but not CGL insurance), Licensee may pay Licensor, at Licensor's current rate at time of request, the cost of adding this Encroachment, or additional construction and/or demolition activities, to Licensor's Railroad Protective Liability (RPL) Policy for the period of actual construction. This coverage is offered at Licensor's discretion and may not be available under all circumstances.
10.6 Notwithstanding the provisions of Sections 10.1 and 10.2, Licensee, pursuant to State Statute(s), may self-insure or self-assume, in any amount(s), any contracted liability arising under this Agreement, under a funded program of self-insurance, which fund will respond to liability of Licensee imposed by and in accordance with the procedures established by law.
11. GRADE CROSSINGS; PROTECTION SERVICES:
11.1 Nothing herein contained shall be construed to permit Licensee or Licensee's contractor to move any vehicles or equipment over the track(s), except at public road crossing(s), without separate prior written approval of Licensor.
11.2 If Licensor deems it advisable, during any construction, maintenance, repair, renewal, alteration, change or removal of said Facilities, to place watchmen, flagmen, or field construction managers for protection of operations of Licensor or others on Licensor's rail corridor at the Encroachment, and to keep persons, equipment or materials away from the track(s), Licensor shall have the right to do so at the expense of Licensee, but Licensor shall not be liable for failure to do so.
12. LICENSOR'S COSTS:
12.1 Any additional or alternative costs or expenses incurred by Licensor to accommodate Licensee's continued use of Licensor's property as a result of track changes or pipe changes shall also be paid by Licensee.
12.2 Licensor's expense for wages ("force account" charges) and materials for any work performed at the expense of Licensee pursuant hereto shall be paid by Licensee within thirty (30) days after receipt of Licensor's bill therefor or the time period specified by state law. Licensor may, at its discretion, request an advance deposit for estimated Licensor costs and expenses.
12.3 Such expense shall include, but not be limited to, cost of railroad labor and supervision under "force account" rules, plus current applicable overhead percentages, the actual cost of materials, and insurance, freight and handling charges on all material used. Equipment
Page 8 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922 rentals shall be in accordance with Licensor's applicable fixed rate. Licensor may, at its discretion, require advance deposits for estimated costs of such expenses and costs.
13. DEFAULT, BREACH, WAIVER:
13.1 The proper and complete performance of each covenant of this Agreement shall be deemed of the essence thereof, and in the event Licensee fails or refuses to fully and completely perform any of said covenants or remedy any breach within thirty (30) days after receiving written notice from Licensor to do so (or within forty-eight (48) hours in the event of notice of a railroad emergency), Licensor shall have the option of immediately revoking this Agreement and the privileges and powers hereby conferred, regardless of encroachment fee(s) having been paid in advance for any annual or other period. Upon such revocation, Licensee shall make removal in accordance with Article 14.
13.2 No waiver by Licensor of its rights as to any breach of covenant or condition herein contained shall be construed as a permanent waiver of such covenant or condition, or any subsequent breach thereof, unless such covenant or condition is permanently waived in writing by Licensor.
13.3 Neither the failure of Licensor to object to any work done, material used, or method of construction or maintenance of said Encroachment, nor any approval given or supervision exercised by Licensor, shall be construed as an admission of liability or responsibility by Licensor, or as a waiver by Licensor of any of the obligations, liability and/or responsibility of Licensee under this Agreement.
14. TERMINATION, REMOVAL:
14.1 All rights which Licensee may have hereunder shall cease upon the date of (a) termination, (b) revocation, or (c) subsequent agreement, or (d) Licensee's removal of the Facility from the Encroachment. However, neither termination nor revocation of this Agreement shall affect any claims and liabilities which have arisen or accrued hereunder, and which at the time of termination or revocation have not been satisfied; neither party, however, waiving any third party defenses or actions.
14.2 Within thirty (30) days after revocation or termination, Licensee, at its sole risk and expense, shall (a) remove the Facilities from the rail corridor of Licensor, unless the parties hereto agree otherwise, (b) restore the rail corridor of Licensor in a manner satisfactory to Licensor, and (c) reimburse Licensor any loss, cost or expense of Licensor resulting from such removal.
15. NOTICE:
15.1 Licensee shall give Licensor at least thirty (30) days written notice before doing any work on Licensor's rail corridor, except that in cases of emergency shorter notice may be given. Licensee shall provide proper notification as follows:
Page 9 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
a. For non-emergencies, Licensee shall submit online via the CSX Property Portal from Licensor's web site, via web link: https://propertyportal.csx.com/pub_ps_res/ps_res/jsf/public/index.faces
b. For emergencies, Licensee shall complete all of the steps outlined in Section 15.1 a. above, and shall also include detailed information of the emergency. Licensee shall also call and report details of the emergency to Licensor's Rail Operations Emergency Telephone Number: 1-800-232-0144. In the event Licensor needs to contact Licensee concerning an emergency involving Licensee's Facility(ies), the emergency phone number for Licensee is: 407-944-5000.
15.2 All other notices and communications concerning this Agreement shall be addressed to Licensee at the address listed on Page 1, and to Licensor at the address shown on Page 1, c/o CSXT Contract Management, J180; or at such other address as either party may designate in writing to the other.
15.3 Unless otherwise expressly stated herein, all such notices shall be in writing and sent via Certified or Registered Mail, Return Receipt Requested, or by courier, and shall be considered delivered upon: (a) actual receipt, or (b) date of refusal of such delivery.
16. ASSIGNMENT:
16.1 The rights herein conferred are the privileges of Licensee only, and Licensee shall obtain Licensor's prior written consent to any assignment of Licensee's interest herein; said consent shall not be unreasonably withheld.
16.2 Subject to Sections 2 and 16.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns.
16.3 Licensee shall give Licensor written notice of any legal succession (by merger, consolidation, reorganization, etc.) or other change of legal existence or status of Licensee, with a copy of all documents attesting to such change or legal succession, within thirty (30) days thereof.
16.4 Licensor expressly reserves the right to assign this Agreement, in whole or in part, to any grantee, lessee, or vendee of Licensor's underlying property interests in the Encroachment, upon written notice thereof to Licensee.
16.5 In the event of any unauthorized sale, transfer, assignment, sublicense or encumbrance of this Agreement, or any of the rights and privileges hereunder, Licensor, at its option, may revoke this Agreement by giving Licensee or any such assignee written notice of such revocation; and Licensee shall reimburse Licensor for any loss, cost or expense Licensor may incur as a result of Licensee's failure to obtain said consent.
17. TITLE:
Page 10 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
17.1 Licensee understands that Licensor occupies, uses and possesses lands, rights-of-way and rail corridors under all forms and qualities of ownership rights or facts, from full fee simple absolute to bare occupation. Accordingly, nothing in this Agreement shall act as or be deemed to act as any warranty, guaranty or representation of the quality of Licensor's title for any particular Encroachment or segment of Rail Corridor occupied, used or enjoyed in any manner by Licensee under any rights created in this Agreement. It is expressly understood that Licensor does not warrant title to any Rail Corridor and Licensee will accept the grants and privileges contained herein, subject to all lawful outstanding existing liens, mortgages and superior rights in and to the Rail Corridor, and all leases, licenses and easements or other interests previously granted to others therein.
17.2 The term "license," as used herein, shall mean with regard to any portion of the Rail Corridor which is owned by Licensor in fee simple absolute, or where the applicable law of the State where the Encroachment is located otherwise permits Licensor to make such grants to Licensee, a "permission to use" the Rail Corridor, with dominion and control over such portion of the Rail Corridor remaining with Licensor, and no interest in or exclusive right to possess being otherwise granted to Licensee. With regard to any other portion of Rail Corridor occupied, used or controlled by Licensor under any other facts or rights, Licensor merely waives its exclusive right to occupy the Rail Corridor and grants no other rights whatsoever under this Agreement, such waiver continuing only so long as Licensor continues its own occupation, use or control. Licensor does not warrant or guarantee that the license granted hereunder provides Licensee with all of the rights necessary to occupy any portion of the Rail Corridor. Licensee further acknowledges that it does not have the right to occupy any portion of the Rail Corridor held by Licensor in less than fee simple absolute without also receiving the consent of the owner(s) of the fee simple absolute estate. Further, Licensee shall not obtain, exercise or claim any interest in the Rail Corridor that would impair Licensor's existing rights therein.
17.3 Licensee agrees it shall not have nor shall it make, and hereby completely and absolutely waives its right to, any claim against Licensor for damages on account of any deficiencies in title to the Rail Corridor in the event of failure or insufficiency of Licensor's title to any portion thereof arising from Licensee's use or occupancy thereof.
17.4 To the extent permitted by State law, Licensee agrees to fully and completely indemnify and defend all claims or litigation for slander of title, overburden of easement, or similar claims arising out of or based upon the Facilities placement, or the presence of the Facilities in, on or along any Encroachment(s), including claims for punitive or special damages.
17.5 Licensee shall not at any time own or claim any right, title or interest in or to Licensor's property occupied by the Encroachments, nor shall the exercise of this Agreement for any length of time give rise to any right, title or interest in Licensee to said property other than the license herein created.
17.6 Nothing in this Agreement shall be deemed to give, and Licensor hereby expressly waives, any claim of ownership in and to any part of the Facilities.
Page 11 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
17.7 Licensee shall not create or permit any mortgage, pledge, security, interest, lien or encumbrances, including without limitation, tax liens and liens or encumbrances with respect to work performed or equipment furnished in connection with the construction, installation, repair, maintenance or operation of the Facilities in or on any portion of the Encroachment (collectively, "Liens or Encumbrances"), to be established or remain against the Encroachment or any portion thereof or any other Licensor property.
17.8 In the event that any property of Licensor becomes subject to such Liens or Encumbrances, Licensee agrees to pay, discharge or remove the same promptly upon Licensee's receipt of notice that such Liens or Encumbrances have been filed or docketed against the Encroachment or any other property of Licensor; however, Licensee reserves the right to challenge, at its sole expense, the validity and/or enforceability of any such Liens or Encumbrances.
18. GENERAL PROVISIONS:
18.1 This Agreement, and the attached specifications on Exhibit ‘A’, contains the entire understanding between the parties hereto.
18.2 Neither this Agreement, any provision hereof, nor any agreement or provision included herein by reference, shall operate or be construed as being for the benefit of any third person.
18.3 Except as otherwise provided herein, or in any Rider attached hereto, neither the form of this Agreement, nor any language herein, shall be interpreted or construed in favor of or against either party hereto as the sole drafter thereof.
18.4 This Agreement is executed under current interpretation of applicable Federal, State, County, Municipal or other local statute, ordinance or law(s). However, each separate division (paragraph, clause, item, term, condition, covenant or agreement) herein shall have independent and severable status for the determination of legality, so that if any separate division is determined to be void or unenforceable for any reason, such determination shall have no effect upon the validity or enforceability of each other separate division, or any combination thereof.
18.5 This Agreement shall be construed and governed by the laws of the state in which the Facilities and Encroachment are located.
18.6 If any amount due pursuant to the terms of this Agreement is not paid by the due date, it will be subject to Licensor's standard late charge and will also accrue interest at eighteen percent (18%) per annum, unless limited by state statute or local law, and then at the highest rate so permitted.
18.7 Licensee agrees to reimburse Licensor for all reasonable costs (including attorney's fees) incurred by Licensor for collecting any amount due under the Agreement.
Page 12 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
18.8 The provisions of this License are considered confidential and may not be disclosed to a third party without the consent of the other party(s), except: (a) as required by state statute, regulation or court order, (b) to a parent, affiliate or subsidiary company, (c) to an auditing firm or legal counsel that are agreeable to the confidentiality provisions, or (d) to Lessees of Licensor's land and/or track who are affected by the terms and conditions of this Agreement and will maintain the confidentiality of this Agreement.
18.9 Licensor shall refund to Licensee any overpayments collected, plus any taxes paid in advance; PROVIDED, however, such refund shall not be made when the cumulative total involved is less than One Hundred Dollars ($100.00).
19. RESERVED:
20. RESERVED:
21. RIDERS:
21.1 The following Rider(s) is/are herewith attached and included herein:
[X] Telecommunication Cable or Fiber Optic Line
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 13 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate (each of which shall constitute an original) as of the effective date of this Agreement.
Witness for Licensor: CSX TRANSPORTATION, INC.
______By:______
Print/Type Name:______
Print/Type Title:______
Witness for Licensee: TOHOPEKALIGA WATER AUTHORITY
______By:______
Who, by the execution hereof, affirms that he/she has the authority to do so and to bind the Licensee to the
terms and conditions of this Agreement.
Print/Type Name:______
Print/Type Title:______
Tax ID No.:______
Page 14 of 15 ø PS - FORM 1001-G REVISED APRIL 3, 2008 AGREEMENT NO. CSX856922
COMMUNICATIONS CABLE OR FIBER OPTIC LINE PROTECTION RIDER
This Rider is and shall be a part of Agreement No. CSX856922, and is incorporated therein.
1. No construction of any type pursuant or related in any way to this Agreement shall be commenced by Licensee, or by any agent, representative, contractor, subcontractor of Licensee, without Licensee first giving at least thirty (30) days written notice to the following Parallel Cable Occupier(s):
("Verizon") ATTN: Mr. Dean Boyers Verizon Business Wireline Network Ops & Eng 400 International Pkwy, Room N/A Richardson, TX USA 75081 Phone No. (469) 886-4238 (Work) or [email protected] (NOTE: WRITTEN NOTICE TO VERIZON IS ALSO REQUIRED)
2. The notice shall be accompanied by drawing(s) showing the general plan, elevation, details and methods of Licensee's proposed construction, and the location of Occupier(s)' cable or facilities in relation to Licensee's proposed construction.
3. Prior to any construction, Licensee must locate and identify, any existing cable, wire or fiber optic line (including any appurtenances thereto) of said cable occupier(s) traversing or located in, on, or immediately adjacent to the proposed Crossing, at Licensee's sole risk.
4. Any changes, alteration, relocation or protection of wire(s), cable(s) or facilities of such Occupier(s), required by said Occupier(s), shall be at Licensee's sole expense except as otherwise negotiated between Licensee and said Occupier(s).
5. Licensee shall be solely responsible and liable for any damage to (e.g., cutting, dislocating, etc.) said wire(s) or cable(s), and appurtenances thereto, resulting in any way from Licensee's exercise of rights or privileges under this Agreement.
6. To the extent permitted by State law, Licensee shall defend, indemnify and hold Licensor harmless from any such damage claims and any relocation or protection costs of said Occupier(s).
Page 15 of 15 ø CSX856922 Exhibit A 03/02/2018
Page 1 of 2 CSX856922 Exhibit A 03/02/2018
Page 2 of 2 Location Map CSX Agreement for Intercession City Water Main Replacement Project
Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7-O
Department: Engineering Services
Attachments: Vicinity Map Title: APPROVAL OF CHANGE ORDER No. 4 TO THE CONTRACT WITH POSPIECH CONTRACTING, INC. FOR THE MARYDIA SANITARY SEWER EXTENSION PROJECT Summary: The Marydia Subdivision is located south of Osceola Parkway between Orange Blossom Trail and Michigan Avenue. Approximately 0.5 miles south of the Marydia Subdivision lies the Huntington Heights Subdivision. Osceola County and TWA are constructing sanitary sewers within the Marydia and Huntington Heights Subdivisions to eliminate failed septic tanks. Failing septic tanks and drain fields can cause sewer overflows in yards posing a health risk to the residents. In addition, TWA is also extending water mains within the Huntington Heights Subdivision.
Osceola County is contributing a Community Development Block Grant (CDBG) from the State of Florida in the amount of $433,438.56 to the project and TWA has budgeted $5 million for design and construction.
On June 14, 2017 the Board approved awarding the construction contract to Pospiech Contracting, Inc. in the amount of $4,795,193.00, with a contingency amount of $294,591.94. The construction contract requires the installation of approximately 16,600 feet of 8” sanitary sewer and associated manholes; 1,300 feet of 6” force main; one duplex lift station; and 3,500 feet of 4” and 8” water mains. The proposed water mains will provide fire protection and replace existing 2” water lines within the Huntington Heights Subdivision.
Staff has negotiated Change Order #4 in the amount of $95,960.04. The change order consists of the elimination of a proposed water main directional bore under Carroll Street; addition of 237 feet of 8” gravity sewer main and one manhole; addition of manhole coatings for one existing manhole and two proposed manholes; and vertical adjustment of existing valve lids to finished grade.
Elimination of Water Main Directional Bore under Carroll Street, ($16,156.77):
The construction plans required the installation of a 10” water main under Carroll Street to avoid open cutting the road. The 10” main would connect into an existing 8” water main. Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7-O
While excavating the bore pit the contractor encountered a buried concrete structure of unknown purpose large enough to be in direct conflict with the directional bore path. Due to the structure’s close proximity to the existing water main, the interconnection between the proposed 10” and existing 8” water mains was not possible.
Staff evaluated the conflict and determined the directional bore can be eliminated from the Marydia contract without adversely affecting existing and future customers. This water main interconnection will be added to the upcoming Carroll Street Widening project allowing staff to properly design the water main interconnection around the buried concrete structure if its removal is not possible.
Addition of Gravity Sewer Main Extension, $93,508.49:
During the construction of the Huntington Estates gravity sewer system, a customer, owning developed properties on the east side of Old Dixie Highway, north of Home Street, requested sewer service. The properties are located outside the Marydia/Huntington Estates project limits.
To provide the customer with sewer service for these properties a sewer main extension was required. Staff evaluated the areas north and south of the customer’s properties and determined that additional sewer laterals could be installed to the originally planned sewer main extension on Old Dixie Highway for other developed properties currently on septic tanks. To avoid construction schedule delays, staff directed the contractor to proceed with the sewer main extension and sewer lateral installations.
The sewer extension consists of 237 feet of 8” sanitary sewer pipe; one manhole; 6 sewer laterals; additional roadway restoration; and additional maintenance of traffic. The cost is based on bid unit prices.
These properties, which lay outside the project limits, will reimburse TWA the cost of the sewer laterals upon connection of each property. The maximum reimbursement would be $8,950.00.
Addition of Manhole Coatings, $16,490.89:
During construction of the proposed Huntington Estates sewer system staff discovered that the existing lift station junction manhole, the new sewer system’s connection point, did not have an appropriate wet well coating. In addition, two proposed manholes, both within close proximity of the existing lift station, were not specified with the required wet well coatings on the construction plans. Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7-O
According to TWA standards and specifications any manhole within 400 feet of a wastewater lift station requires a wet well type coating. A wet well coating is a thick coating that protects concrete from the corrosive properties of sulfuric acid formed by the interaction of hydrogen sulfide gases and water present in sewer systems, and found in greater concentrations in and near lift stations. There are two types of coatings; a) HDPE liners, which are attached directly to the concrete during the manhole pre-cast process or; b) spray application coating, which can be directly applied in the field with a spray nozzle to existing structures.
To upgrade the manholes to current standards staff directed the contractor spray apply the wet well coatings to all three manholes.
Adjustment to Existing Valve Lids, $2,117.43:
The contractor encountered 12 existing active water valves buried under existing asphalt in Phase 3. Buried valves inhibit staff’s ability to isolate water mains and minimize service disruptions during emergency repairs. Staff directed the contractor raise these existing valves to new grade.
The following is a summary of the project’s change orders:
Description Amount Original Contract Amount (Base Bid) $4,795,193.00 Change Order #1 $42,334.19 Change Order #2 $67,899.93 Change Order #3 $13,039.62 Change Order #4 (pending approval) $95,960.04 New Contract Amount $5,014,426.78
The construction project is on schedule and approximately 80% complete. With this change order the substantial completion date would change from July 22, 2018 to July 30, 2018. Sewer construction has been completed and in use for the following streets in Phase 2 (Marydia east of Old Dixie Highway): 1. Garden Street (from Joe Court to Florida Avenue) 2. Barn Street (from Tampa Avenue to Florida Avenue) 3. Still Street (east of Florida Avenue) 4. Sawdust Trail (east of Florida Avenue) 5. Tampa Avenue (from Garden Street to Sawdust Trail) 6. Florida Avenue (from Garden Street to Sawdust Trail) The following items are required to complete construction: Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7-O
Phase 1 (Huntington Estates): 1. Sewer main installation has been completed and is being tested. 2. Water main installation is approximately 80% complete. 3. Certification of Completion required from the Florida Department of Environmental Protection (FDEP) for both water and sewer systems to place them in service. Phase 3 (Marydia west of Old Dixie Highway):
1. The lift station is approximately 75% complete. 2. FDEP Certification of Completion required for the sewer system. Change Order #4 will be funded by the Board approved contingency of $294,591.94. The amount of contingency remaining after Change Order #4 is $75,358.16. Total Costs: $95,960.04 Recommended Action: Staff recommends approval of Change Order #4 to the contract with Pospiech Contracting, Inc. for the Marydia Sanitary Sewer Extension project. Initials: EM
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MANNING DR Marydia Project Limits
THE TOHOPEKALIGA WATER AUTHORITY MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS AS TO THE TRUTH, MARYDIA SEWER PROJECT ACCURACY, OR COMPLETENESS OF THE DATA ON THIS MAP. THIS IS NOT A SURVEY PRODUCT AND IS A VISUAL REFERENCE TOOL ONLY. The Tohopekekila Water Authority makes no warranty, express or implied with respect to its ownership of any rights relating to trademarks and trade names described herein. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE FACE HEREOF. Any questions or concerns should be directed to Toho Water Authority, Information Technology (IT) Department at 407-944-5190.
C:\Users\mpampouk\Desktop\Toho_Custom_Tools.mxd 6/17/2014 at 8:32:24 AM PRODUCED BY: Mike 0 250 500 1,000 Feet Board Meeting Date 04/26/2018
Category: Consent Agenda Agenda Item: 7P
Department: Information Technology
Attachments: Quote from Presidio Networked Solutions Title: COLLABORATION SOLUTION: CISCO AUDIO/VISUAL COMMUNICATION REPLACEMENT (PBA-18-085) Summary: IT Staff is requesting replacement of the current audiovisual (A/V) equipment which was purchased in FY 2008 for the Boardroom and Training room. The present systems are no longer under a maintenance agreement, and the equipment cannot be upgraded to provide the latest technology such as audiovisual conferencing. Digital displays, immersive conferencing technology, TVs interactive whiteboards, and crystal clear sound systems are all A/V options that can have an immediate, positive impact when we communicate with others.
Our telephony system solution (Cisco) will be integrated with Spark and WebEx to offer video conferencing technology and an interactive whiteboard. This solution is designed to meet the needs of TWAs employees, whether deskbound or on the road. Cisco collaboration will support video to and from the desktop, mobile devices, and the boardroom.
Some add-on features that will be added to current system:
• Enabled mobility with software that has embedded unified mobility capabilities so mobile workers can remain productive from the office or a remote location. • Improved communication by using instant messaging; answering office calls, and schedule videoconferencing call more easily. • Ability to attend meetings via video conference in case scheduling conflicts prevent them (individuals, vendors, etc.) from being on site.
The replacement will consist Boardroom and Training room equipment and software upgrades for video conferencing.
The purchase of this equipment will be done via the State of Florida NASPO Value Point Cisco contract AR233 (14-19) FL#43220000-WSCA-14-AC titled, “Data Communications Products and Services” from Presidio Networked Solutions, LLC, an authorized reseller of Cisco products. Board Meeting Date 04/26/2018
Category: Consent Agenda Agenda Item: 7P
Total Cost: $173,907.14 Recommended Action: Staff recommends approval to purchase audiovisual equipment from Presidio Networked Solutions, LLC to upgrade the boardroom and training room. Initials: mr/fh
QUOTE: 2001118806594-01 DATE: 03/29/2018 PAGE: 1 of 5
TO: Toho Water Authority FROM: Presidio Networked Solutions Gus Villar Rebecca Husler 951 Martin Luther King Blvd 5337 Millenia Lakes Blvd. Kissimmee, FL 34741 Suite 300 Orlando, FL 32839 [email protected] (p) 407.944.5195 [email protected] (p) 407.641.0417 (f) 407.284.6662
Customer#: TOHOW002 Contract Vehicle: Florida Dept of Management Services IT Staff Augmentation Services 80101507-SA-15-1 Account Manager: Scott Nelson Inside Sales Rep: Rebecca Husler Title: Toho Boardroom and Training Room
# Part # Description Unit Price Qty Ext Price
Boardroom CTS-SX80-IPST60-K9
1 CTS-SX80-IPST60-K9 Cisco SX80 Codec, Speaker Track 60, Touch 10 $17,690.00 1 $17,690.00
2 CON-SSSNT-SX80IP60 SOLN SUPP 8X5XNBD Cisco SX80 Codec, Sp $3,009.15 1 $3,009.15 for 12 mo(s) 3 PWR-CORD-US-A Pwr Cord US 1.8m Black YP-12 To YC-12 $0.00 3 $0.00
4 LIC-CE-CRYPTO-K9 License key to activate sw encryption module $0.00 1 $0.00
5 CAB-HDMI-MULT-9M Cisco Multi-Connector Presentation Cable for 1080p $284.20 1 $284.20
6 CTS-CAM-P60 Cisco TelePresence Precision 60 Camera $5,162.00 1 $5,162.00
7 CON-SSSNT-CTSCAM60 SOLN SUPP 8X5XNBD Cisco TelePresence P $917.73 1 $917.73 for 12 mo(s) 8 CTS-CAM60-BRKT Bracket for mounting of Precision 60 Camera $145.00 1 $145.00
9 LIC-SMP+EP Shared Multiparty License for 1 Concurrent Meeting $4,640.00 1 $4,640.00
10 CON-ECMUS-LICSMPEP SOLN SUPP SWSS Shared Multiparty Li $1,296.00 1 $1,296.00 for 12 mo(s) 11 LIC-TP-ROOM-11.X Choose if VCS or for CUCM version 11.x TP-Room License $0.00 1 $0.00
12 PSU-12VDC-40W2 Power Supply 12 VDC 40W $0.00 1 $0.00
13 CAB-DVI-VGA-PHOEN Presentation cable w/audio, VGA/Jack to DVI/Phoenix $0.00 1 $0.00
14 CAB-PWR-ST-SHORT- Two 12V power cables (0.45m & 0.2m) for SpeakerTrack 60 $0.00 1 $0.00
15 CTS-SX80-RACKEARS- SX80 rack ears - for auto expand only $0.00 1 $0.00
16 CAB-DV10-12.5M 12.5 meter flat grey Ethernet cable for Touch 10 $0.00 1 $0.00
17 CTS-ST-ARR60-WMK- Wall Mount Kit for Speaker Track 60 Microphone Array $0.00 1 $0.00
18 DOC-P60CAM-BRKT Installation sheet for Precision 60 Camera bracket $0.00 1 $0.00
19 LIC-CMS-PAK Cisco Meeting Server (CMS) PAK $0.00 1 $0.00
20 LIC-EXP-RMS-PMP RMS Licensing included with PMP & SMP $0.00 1 $0.00
21 LIC-TP-SMP-INC Shared Multiparty License for 1 Concurrent Meeting for XC/TS $0.00 1 $0.00 QUOTE: 2001118806594-01 DATE: 03/29/2018 PAGE: 2 of 5
22 PWR-12VDC-84W- Power supply 12VDC 84W $0.00 1 $0.00
23 CAB-DV10-4M 4 meter flat grey Ethernet cable for Touch 10 $0.00 1 $0.00
24 CTS-CAM-P60+ Cisco TelePresence Precision 60 Camera - auto expand only $0.00 2 $0.00
25 CTS-PWR-AIR-INJ5+ Power Injector (802.3af) $0.00 1 $0.00
26 CTS-ST-ARRAY60+ Speaker Track 60 Microphone Array $0.00 1 $0.00
27 CTS-CTRL-DVX-10+ Touch 10 auto expand $0.00 1 $0.00
28 LIC-CMS-SMP Shared Multiparty License for 1 Concurrent Meeting for CMS $0.00 1 $0.00
29 LIC-EXPE-PMP-PAK Expressway Series, Expressway-E PAK $0.00 1 $0.00
30 UCM-PAK UCMPAK $0.00 1 $0.00
31 CAB-ETH-ST-SHORT- Two Ethernet cables (0.35m & 0.2m) for SpeakerTrack 60 $0.00 1 $0.00
32 CTS-ST-INT-PLATE- Interface plate CAM-P60 to Speaker Track 60 $0.00 2 $0.00
33 CTS-SX80CODEC Cisco SX80 Codec $0.00 1 $0.00
34 PWR-CORD-US-A Pwr Cord US 1.8m Black YP-12 To YC-12 $0.00 1 $0.00
35 SW-S52020-CE8-K9 SW Image for SX80, MX700, MX800 $0.00 1 $0.00
36 LIC-VMCNDTR-PMP-PK PAK for virtual Conductor $0.00 1 $0.00
37 LIC-EXP-ROOM Expressway Room License $0.00 1 $0.00
Total: $33,144.08
38 MISC MATERIALS MISC MATERIALS $66,016.44 1.00 $66,016.44
Comments: Shure MXW8 Gooseneck Microphone Base Transmitter 12 Shure MX415LP/C Microflex Modular Cardioid 15" Gooseneck Microphone 12 Shure MXWAPT8 Access Point Transceiver 2 Shure MXWANI8 Audio Network Interface 2 Shure MXWNCS8 Networked Charging Station (3) BSS BLU-100 12x8 Signal Processor with BLU link (1) BSS BLU-BIB (Break-In Box) Input Expander (1) BSS RACK Rack Mount Kit (1) Sharp PN-LE801 80" Class Commercial LED smart TV - (1920x1080) 3-Year Onsite Limited Warranty (3) Chief CMA105 4" (102 mm) Ceiling Plate (2) Chief CMS0203 2-3' Adjustable Extension Column (2) Chief LCM1U FUSION™ Large Flat Panel Ceiling Mount (2) Chief LTA1U Large Fusion Tilt Wall Mount (1) Vaddio 999-9560-000 OneLINK™ HDMI for Precision 60 (2) Crestron DMPS3-4K-350-C 3-Series® 4K DigitalMedia™ Presentation System 350 (1) Crestron DM-TX-4K-100-C-1G-B-T Wall Plate 4K DigitalMedia 8G+® Transmitter 100, Black Textured (1) Crestron DM-TX-4K-302-C 4K DigitalMedia 8G+® Transmitter 302 (1) Crestron PW-4830DUS 150W PoDM Power Pack for DMPS (1) Crestron DM-RMC-4K-100-C 4K DigitalMedia 8G+® Receiver & Room Controller 100 (2) Crestron TST-602 5.7" Wireless Touch Screen (1) Crestron CEN-GWEXER infiNET EX® & ER Wireless Gateway (1) Crestron HD-DA2-4K-E 1-to-2 4K HDMI® Distribution Amplifier (1) Crestron HD-EXT4-C-B_SYSTEM 4K HDMI® over HDBaseT® Extender w/Analog Audio, Black (2) Atlona UHD-CAT-8 4K/UHD Eight-Output HDMI to HDBaseT Distribution Amplifier (1) Atlona UHD-CAT-4 4K/UHD Four-Output HDMI to HDBaseT Distribution Amplifier (1) Atlona AT-UHD-EX-70C-RX 4K/UHD HDMI Over HDBaseT Receiver with Control and PoE (10) Samsung S22F350FH 21.5-Inch FHD Monitor (1920 x 1080) (10) Netgear JGS524NA 24-port 101001000 Mbps Gigabit Ethernet Switch (1) Lumens PS752 Desktop Document Camera (1) Crunchy MISCABLE Misc. Cables (1) Total (Boardroom): $99,160.52
Training Room CTS-SX80-IPST60-K9 QUOTE: 2001118806594-01 DATE: 03/29/2018 PAGE: 3 of 5
39 CTS-SX80-IPST60-K9 Cisco SX80 Codec, Speaker Track 60, Touch 10 $17,690.00 1 $17,690.00
40 CON-SSSNT-SX80IP60 SOLN SUPP 8X5XNBD Cisco SX80 Codec, Sp $3,009.15 1 $3,009.15 for 12 mo(s) 41 PWR-CORD-US-A Pwr Cord US 1.8m Black YP-12 To YC-12 $0.00 3 $0.00
42 CTS-MIC-CLNG-G2 Cisco TelePresence Ceiling Microphone Generation 2 $864.20 1 $864.20
43 CON-SSSNT-CTSMICG2 SOLN SUPP 8X5XNBD Cisco TelePresence C $147.42 1 $147.42 for 12 mo(s) 44 CAB-ETHRSHLD-10M Shielded cable for Ceiling Mic (10m), not plenum rated $43.50 1 $43.50
45 LIC-CE-CRYPTO-K9 License key to activate sw encryption module $0.00 1 $0.00
46 CAB-HDMI-MULT-9M Cisco Multi-Connector Presentation Cable for 1080p $284.20 1 $284.20
47 CTS-CAM-P60 Cisco TelePresence Precision 60 Camera $5,162.00 1 $5,162.00
48 CON-SSSNT-CTSCAM60 SOLN SUPP 8X5XNBD Cisco TelePresence P $917.73 1 $917.73 for 12 mo(s) 49 CTS-CAM60-BRKT Bracket for mounting of Precision 60 Camera $145.00 1 $145.00
50 LIC-SMP+EP Shared Multiparty License for 1 Concurrent Meeting $4,640.00 1 $4,640.00
51 CON-ECMUS-LICSMPEP SOLN SUPP SWSS Shared Multiparty Li $1,296.00 1 $1,296.00 for 12 mo(s) 52 LIC-TP-ROOM-11.X Choose if VCS or for CUCM version 11.x TP-Room License $0.00 1 $0.00
53 PSU-12VDC-40W2 Power Supply 12 VDC 40W $0.00 1 $0.00
54 CAB-DVI-VGA-PHOEN Presentation cable w/audio, VGA/Jack to DVI/Phoenix $0.00 1 $0.00
55 CAB-PWR-ST-SHORT- Two 12V power cables (0.45m & 0.2m) for SpeakerTrack 60 $0.00 1 $0.00
56 CTS-SX80-RACKEARS- SX80 rack ears - for auto expand only $0.00 1 $0.00
57 CAB-DV10-12.5M 12.5 meter flat grey Ethernet cable for Touch 10 $0.00 1 $0.00
58 CTS-ST-ARR60-WMK- Wall Mount Kit for Speaker Track 60 Microphone Array $0.00 1 $0.00
59 DOC-P60CAM-BRKT Installation sheet for Precision 60 Camera bracket $0.00 1 $0.00
60 LIC-CMS-PAK Cisco Meeting Server (CMS) PAK $0.00 1 $0.00
61 LIC-EXP-RMS-PMP RMS Licensing included with PMP & SMP $0.00 1 $0.00
62 LIC-TP-SMP-INC Shared Multiparty License for 1 Concurrent Meeting for XC/TS $0.00 1 $0.00
63 PWR-12VDC-84W- Power supply 12VDC 84W $0.00 1 $0.00
64 CAB-DV10-4M 4 meter flat grey Ethernet cable for Touch 10 $0.00 1 $0.00
65 CTS-CAM-P60+ Cisco TelePresence Precision 60 Camera - auto expand only $0.00 2 $0.00
66 CTS-PWR-AIR-INJ5+ Power Injector (802.3af) $0.00 1 $0.00
67 CTS-ST-ARRAY60+ Speaker Track 60 Microphone Array $0.00 1 $0.00
68 CTS-CTRL-DVX-10+ Touch 10 auto expand $0.00 1 $0.00
69 LIC-CMS-SMP Shared Multiparty License for 1 Concurrent Meeting for CMS $0.00 1 $0.00 QUOTE: 2001118806594-01 DATE: 03/29/2018 PAGE: 4 of 5
70 LIC-EXPE-PMP-PAK Expressway Series, Expressway-E PAK $0.00 1 $0.00
71 UCM-PAK UCMPAK $0.00 1 $0.00
72 CAB-ETH-ST-SHORT- Two Ethernet cables (0.35m & 0.2m) for SpeakerTrack 60 $0.00 1 $0.00
73 CTS-ST-INT-PLATE- Interface plate CAM-P60 to Speaker Track 60 $0.00 2 $0.00
74 CTS-SX80CODEC Cisco SX80 Codec $0.00 1 $0.00
75 PWR-CORD-US-A Pwr Cord US 1.8m Black YP-12 To YC-12 $0.00 1 $0.00
76 SW-S52020-CE8-K9 SW Image for SX80, MX700, MX800 $0.00 1 $0.00
77 LIC-VMCNDTR-PMP-PK PAK for virtual Conductor $0.00 1 $0.00
78 LIC-EXP-ROOM Expressway Room License $0.00 1 $0.00
Total: $34,199.20
79 MISC MATERIALS MISC MATERIALS $9,379.54 1.00 $9,379.54
Comments: Samsung ED65E 65" LED Display - Commercial Grade 3 yr. warranty (2) Samsung DB55E 55" LED Display - Commercial Grade 3 yr. warranty (1) Chief LTM1U Large Fusion Micro-Adjustable Tilt Wall Mount (2) Chief TS325TU Medium THINSTALL Dual Swing Arm Wall Display Mount - 25" Extension (1) Atlona AT-RON-442 4K HDR Two-Output HDMI Distribution Amplifier (1) Vaddio 999-9560-000 OneLINK™ HDMI for Precision 60 (1) JBL Pro Control 26CT 6.5" Ceiling Loudspeaker (4) Episode ECA-70VMINI-60W 70V Digital Amplifier | 60W x 1 Channel (1) Crunchy MISCABLE Misc. Cables (1) Total (Training Room): $43,578.74
CRN A-SPK-NAMED-USER Initial Term: 12.00 months Billing Model: Monthly Auto-Renewal Term: 12 months Requested Start Date: 02/16/2018
80 A-SPK-NAMED-USER Spark Named User (1) $0.00 1 $0.00
Recurring Charges
81 A-SPK-NU-M3 Business Messaging and Advanced Meetings (1) $20.65 10 Users $2,478.00 for 12.00 months
82 A-SPK-NU-TNU+ Toll Named Users Plus (1) $5.07 10 Users $608.40 for 12.00 months
83 SVS-SPK-SUPT-BAS Basic Support for Cisco Spark $0.00 1 EA $0.00 for 12.00 months
84 A-SPK-NU-MC-X Included WebEx Meeting Center (1) $0.00 10 Users $0.00 for 12.00 months
85 A-SPK-NU-M1-X Included Business Messaging (1) $0.00 10 Users $0.00 for 12.00 months
86 A-SPK-NU-M2-X Included Basic Meetings (1) $0.00 10 Users $0.00 for 12.00 months
87 A-SPK-NU-WXSTG-X Included WebEx Storage (1) $0.00 10 GB $0.00 for 12.00 months
88 A-SPK-NU-RMSTG-X Included Spark Storage (1) $0.00 50 GB $0.00 for 12.00 months
89 A-SPK-NU-CMR-25-X Included Collaboration Meeting Rooms (Cloud) Named User (1) $0.00 10 Users $0.00 for 12.00 months QUOTE: 2001118806594-01 DATE: 03/29/2018 PAGE: 5 of 5
90 A-SPK-VOIP Included VoIP (1) $0.00 1 EA $0.00 for 12.00 months
Recurring Monthly Charges: $257.20
Total Recurring Charges: $3,086.40 Total: $3,086.40 Total (CRN): $3,086.40
Presidio Services
91 PS-SVC-FF Fixed Fee for Presidio employee labor $10,880.00 1.0000 $10,880.00
Comments: SOW # P601-180205 Deliverable: kickoff
92 PS-SVC-FF Fixed Fee for Presidio employee labor $16,320.00 1.0000 $16,320.00
Comments: SOW # P601-180205 Deliverable: complete Total (Presidio Services): $27,200.00
Shipping
93 Freight Charge Freight Charge $881.48 1.0000 $881.48
Total (Shipping): $881.48
Sub Total: $173,907.14
Grand Total: $173,907.14
TERMS AND CONDITIONS OF THE REFERENCED CONTRACT SHALL GOVERN THIS QUOTE
Customer hereby authorizes and agrees to make timely payment for products delivered and services rendered, including payments for partial shipments
Customer Signature Date Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7Q
Department: Customer Service
Attachments: Quotes from Aclara Technologies, LLC
Title: ACLARA TECHNOLOGIES, LLC AMI DATA COLLECTOR UNITS UPGRADE PROJECT (SS-18-075) Summary:
In April 2016, the Authority completed the final installation of the AMI (Advance Metering Infrastructure) project which brought the multi-year project to a successful completion. The AMI system provides staff a full meter-to-cash solution that integrates with the Customer Information System (CIS) system and provides automation where reading and billing is concerned.
Part of the technology involved includes the DCUs which are known as Data Collector Units. These units collect data and feed it to the network that allows staff to read and bill the customer’s consumption. Toho now has 161 DCUs throughout the serviceable area which continues to grow as development increases.
In April 2017, Aclara Technologies, LLC made staff aware that the technology was changing from 2G/3G to the new technology called LTE, long-term evolution, a high speed internet solution. The sunset of the 2G/3G technology is January 1, 2020. In order for the new technology to be installed, each DCU must have the J-Board changed out to a T-Board. The entire project cost is $620,620 which includes labor and parts.
With that said, the budget request for the change out was approved over the course of two years, for FY18 and FY19, in September 2017. Therefore, staff is requesting approval to begin the project in two phases. The first phase involves upgrading fifty DCUs for FY18; the second phase involves upgrading the remaining 104 DCUs in FY19.
Florida Statutes require sole source purchases above established thresholds to be publicly noticed. The Toho Water Authority’s Procurement Manual establishes a $15,000 threshold for publicly noticing sole sourced purchases. To comply with the Florida Statute and TWA’s Procurement Manual requirements, staff posted TWA’s intent to sole source purchase AMI parts and Aclara software upgrades on April 9, 2018 through April 17, 2018. There was no response to the public notice. Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7Q
Total Costs: $201,500 in FY18 and $419,120 FY19 for a total project cost of $620,620: Recommended Action: Staff recommends approval to award the AMI data collector unit parts and software upgrade project to Aclara Technologies, LLC. Initials: mlh/fh
Aclara Proprietary / Confidential Information QUOTE: TOHO033018
DCU Renewal Pricing
Date: 3/30/2018
Price Item Description Part Number Quantity Each Extended Notes 1 TOHO 1.1 DCU Renewal Advanced – Tboard / LTE 50 $4,030.00 $201,500.00
$201,500.00
Subtotal: $201,500.00 Material Handling & Freight: $-00 GRAND TOTAL: $201,500.00
General Note: This Proposal/Quotation is based upon the terms and conditions set forth in the Aclara Standard Terms and Conditions of Sales for Equipment and Certain Services that are available on Aclara's website at: http://www.aclara.com/terms-and-conditions/ Any conflicting or additional terms and conditions contained in any resulting purchase order are hereby rejected unless agreed to in writing by Aclara.
Additional Terms: A. Payment Terms Net 30 Days.
Notes
Lou Rossetti Aclara Technologies LLC 610 883 3181 [email protected]
10.30.12 V1.0 Aclara Proprietary / Confidential Information QUOTE: TOHO042418
DCU Renewal Pricing
Date: 04/24/2018
Price Item Description Part Number Quantity Each Extended Notes 1 TOHO 1.1 DCU Renewal Advanced – Tboard / LTE 104 $4,030.00 $419,120.00
$419,120.00
Subtotal: $419,120.00 Material Handling & Freight: $-00 GRAND TOTAL: $419,120.00
General Note: This Proposal/Quotation is based upon the terms and conditions set forth in the Aclara Standard Terms and Conditions of Sales for Equipment and Certain Services that are available on Aclara's website at: http://www.aclara.com/terms-and-conditions/ Any conflicting or additional terms and conditions contained in any resulting purchase order are hereby rejected unless agreed to in writing by Aclara.
Additional Terms: A. Payment Terms Net 30 Days.
Notes
Lou Rossetti Aclara Technologies LLC 610 883 3181 [email protected]
10.30.12 V1.0 Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7R
Department: Treatment Operations
Attachments: Quote from GE Intelligent Platforms, Inc. Title: APPROVAL TO SOLE SOURCE PURCHASE IFIX SOFTWARE UPGRADES FROM GE INTELLIGENT PLATFORMS, INC. FOR DECENTRALIZATION OF WATER TREATMENT PLANTS’ FIELD INTERFACE UNIT (SS-18-077) On February 20, 2018 of this year, a SCADA control system equipment failure incident occurred that caused the loss of Ethernet communications between the Water Treatment Plants’ (WTPs) Field Interface Unit (FIU) Programmable Logic Controller (PLC) housed at the North Bermuda WTP and the Northwest WTP.
This scenario caused a low ground storage tank at the Northwest (NW) WTP. The NW WTP low ground storage tank event resulted in the high service pumps shutting down. When the NW WTP high service pumps shutdown, demand increased at the South West (SW) WTP and which also resulted in a low ground storage tank alarm at SW WTP.
Currently the SCADA Water Treatment Plant (WTP) infrastructure is composed of a Field Interface Unit (housed at North Bermuda WTP) that accumulates data from many of the WTPs within TWA. This Field Interface Unit is a single point of failure for the WTP infrastructure. To prevent future failures from occurring, the SCADA Division requests to modify the existing SCADA infrastructure so that every “priority” WTP has a redundant pair of SCADA GE Proficy iFix computers on site. This would decentralize the WTPs’ SCADA network and make every priority WTP function independently, as standalone plants, preventing chain of event emergencies. In order to accomplish the decentralization of the WTP SCADA control system, additional GE Proficy iFix licenses need to be purchased.
The priority WTPs are:
. Northwest WTP . Camelot West WTP . Peabody WTP . Bellalago WTP . Huron WTP . Harmony WTP . Southwest WTP Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7R
These seven WTPs are the plants that supply a high majority of water to TWA customers. Spring Lake and Bay Lakes are small plants that only supply to individual neighborhoods, and they do not have sufficient building space for the servers. The Buenaventura Lakes plant is being decommissioned.
Florida Statutes require sole source purchases above established thresholds to be publicly noticed. The Toho Water Authority’s Procurement Manual establishes a $15,000 threshold for publicly noticing sole sourced purchases. To comply with the Florida Statute and TWA’s Procurement Manual requirements, staff posted TWA’s intent to sole source purchase iFix upgrades on April 9, 2018 through April 17, 2018. There was no response to the public notice. Total Costs: $177,592.52 Recommended Action: Staff requests approval to purchase iFix software upgrades from GE Intelligent Platforms, Inc. Initials: FH
a
GE Intelligent Platforms Inc. [Digital]
325 Foxborough Blvd avbhjvhj Foxborough, MA 02035 United States
Quote No: BMIQ-03062018-236525 Primary Sales Person: Corey McAuliffe Quote Name:
Revision: 1 Sales Support Person: Corey McAuliffe Customer RFQ:
Quote Date: Mar 6, 2018 Sales Support Email: [email protected]
Quote Expiration: Apr 5, 2018 Sales Support Phone: 412-741-2410-10 a a a
Bill To: Ship To: End User: TOHOPEKALIGA WATER AUTHORITY TOHOPEKALIGA WATER AUTHORITY TOHOPEKALIGA WATER AUTHORITY 951 MARTIN LUTHER KING BLVD 951 MARTIN LUTHER KING BLVD 951 MARTIN LUTHER KING BLVD KISSIMMEE, FL 34741-4929 KISSIMMEE, FL 34741-4929 KISSIMMEE, FL 34741-4929 US US US Contact: Allan Humphrey Contact: Allan Humphrey Contact: Allan Humphrey
CSN: 10182400 CSN: 10182400 CSN: 10182400
Currency: USD Inco Terms: FOB SHIPPING POINT
Line No. Part No. Description Comments Std Lead Time Qty Unit Sell Price Ext. Sell Price
1 IF59PDUNLEN-S iFix v5.9 Plus Development Unlimited Points English SCADA 0 7 $14,859.00 $104,013.00 Synchronization
2 HS70T0000100000 Historian v7.0 Essential 1000 Points Add On 0 7 $0.00 $0.00
3 WN31E WIN 911 v3.1 Essential Add On 0 7 $0.00 $0.00
4 APN-PREM-PER- Acceleration Plan Bundle - Premier Level for Automation Perpetual 7 $2,377.44 $16,642.08 AUTO-BDL License Premier; Mar 6, 2018 - Mar 5, 2019
5 IF59PRUNLEN-S iFix v5.9 Plus Runtime Unlimited Points English SCADA 0 7 $5,930.00 $41,510.00 Synchronization Backup License
6 HS70T0000100000 Historian v7.0 Essential 1000 Points Add On 0 7 $0.00 $0.00
1 of 16
Remit Payment Only To:
By Electronic: Bank of America By Mail: GE Intelligent Platforms, Inc.[Digital] Account No# 4451132895 PO Box 74008240 Chicago, IL 60674-8240 ABA: 111000012 SWIFT: BOFAUS3N Beneficiary: GE Intelligent Platforms, Inc.[Digital] Overnight Mail to: Bank of America Lockbox Services 1400 Best Plaza Dr GE Intelligent Platforms, Inc.[Digital] RICHMOND VIRGINIA, 23227 United States 540 w. Madison, 4th Floor - Chicago, IL 60661-8240
a
GE Intelligent Platforms Inc. [Digital]
325 Foxborough Blvd avbhjvhj Foxborough, MA 02035 United States
Line No. Part No. Description Comments Std Lead Time Qty Unit Sell Price Ext. Sell Price
7 WN31E WIN 911 v3.1 Essential Add On 0 7 $0.00 $0.00
8 APN-PREM-PER- Acceleration Plan Bundle - Premier Level for Automation Perpetual 7 $948.80 $6,641.60 AUTO-BDL License Premier; Mar 6, 2018 - Mar 5, 2019
9 DR-G00 Drivers IGS- Industrial Gateway Server for Basic Points 0 7 $721.00 $5,047.00
10 APN-PREM-PER- Acceleration Plan Bundle - Premier Level for Automation Perpetual 7 $115.36 $807.52 AUTO-BDL License Premier; Mar 6, 2018 - Mar 5, 2019
11 DR-G00 Drivers IGS- Industrial Gateway Server for Basic Points Backup 0 7 $361.00 $2,527.00 License
12 APN-PREM-PER- Acceleration Plan Bundle - Premier Level for Automation Perpetual 7 $57.76 $404.32 AUTO-BDL License Premier; Mar 6, 2018 - Mar 5, 2019 Quote Total: $177,592.52
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Remit Payment Only To:
By Electronic: Bank of America By Mail: GE Intelligent Platforms, Inc.[Digital] Account No# 4451132895 PO Box 74008240 Chicago, IL 60674-8240 ABA: 111000012 SWIFT: BOFAUS3N Beneficiary: GE Intelligent Platforms, Inc.[Digital] Overnight Mail to: Bank of America Lockbox Services 1400 Best Plaza Dr GE Intelligent Platforms, Inc.[Digital] RICHMOND VIRGINIA, 23227 United States 540 w. Madison, 4th Floor - Chicago, IL 60661-8240
a
GE Intelligent Platforms Inc. [Digital]
325 Foxborough Blvd avbhjvhj Foxborough, MA 02035 United States
Correspondence address to: GE Intelligent Platforms, Inc. [Digital] 325 Foxborough Blvd Foxborough, MA 02035 United States
ATTENTION: Please do not fax or email any export controlled technical data to these fax numbers or email addresses This Quote does not include any freight charges or applicable taxes. All Items are Commercial items. Please include the Quote Number from this document on your Purchase Order. If any applicable export control, economic sanction, or other applicable law or regulations of the United States or any other relevant country prohibit, hinder, or make impracticable GE Intelligent Platforms, Inc. [Digital] ability to provide goods or services, GE Intelligent Platforms, Inc. [Digital] will be excused from all performance related to this quote, order, or contract and GE Intelligent Platforms, Inc. [Digital] will not be liable for any losses or damages of any kind, including but not limited to, loss of revenue or increased cost of supply.
3 of 16
Remit Payment Only To:
By Electronic: Bank of America By Mail: GE Intelligent Platforms, Inc.[Digital] Account No# 4451132895 PO Box 74008240 Chicago, IL 60674-8240 ABA: 111000012 SWIFT: BOFAUS3N Beneficiary: GE Intelligent Platforms, Inc.[Digital] Overnight Mail to: Bank of America Lockbox Services 1400 Best Plaza Dr GE Intelligent Platforms, Inc.[Digital] RICHMOND VIRGINIA, 23227 United States 540 w. Madison, 4th Floor - Chicago, IL 60661-8240
GE Intelligent Platforms, Inc. [Digital]
The license or provision of the GE products and services ("GE Offerings") by the GE Digital business (hereinafter "GE") submitting this proposal or quote is expressly conditioned upon the terms and conditions contained or referred to herein. Any authorization by Customer to furnish the GE Offerings will constitute acceptance of these terms and conditions.
1. DEFINITIONS
The capitalized terms used in this Agreement shall have the meaning given to them below. Words imparting the singular shall also include the plural and vice versa, as the context requires. GE and Customer are each referred to herein as a "Party" and together as the "Parties." The term "General Terms and Conditions" shall mean specifically the body of the following section, and all appendices attached hereto. The term "Agreement" shall mean, collectively, these General Terms and Conditions and any Order issuing from the attached quote or proposal.
1.1. "Acceptable Use Policy" is defined in Section 3.1.
1.2. "Affiliate" means, with respect to a Party, an entity that controls, is controlled by, or is under common control with such Party, where control means ownership, directly or indirectly, of 50% or more of the voting shares of the subject entity or the right to appoint a majority of the board of directors of the subject entity.
1.3. "Change Order" is defined in Section 6.1.
1.4. "Confidential Information" of a Party means all of that Party's information and documentation disclosed to or accessed by the other Party in connection with this Agreement that is marked (or, if disclosed other than in writing, designated at the time of disclosure) as "confidential" or with a similar designation, including any information developed by reference to or use of the other Party's Confidential Information. GE's Confidential Information includes the GE Offerings. "Confidential Information" does not include information that: (a) is independently developed by the receiving Party, as demonstrated by the recipient's written records, without violating the disclosing Party's proprietary rights; (b) is or becomes publicly known (other than through unauthorized disclosure); (c) is disclosed by the owner of such information to a third party free of any obligation of confidentiality; (d) is already known by the receiving Party at the time of disclosure, as demonstrated by the receiving Party's written records, and the receiving Party has no obligation of confidentiality other than pursuant to this Agreement; or (e) is rightfully received by the receiving Party free of any obligation of confidentiality.
1.5. "Customer Content" means data, information, documentation, and software provided by Customer for use in connection with the GE Offerings.
1.6. "Deliverables" are defined in Section 6.3.
1.7. "Data Protection Plan" is defined in Section 3.7.
1.8. "Embedded Software" is defined in Section 4.1.
1.9. "GE Offerings" means, collectively, the Hosted Services, Hardware, Software, Professional Services, and Support Services provided by GE in accordance with this Agreement.
1.10. "Hardware" means hardware equipment that is provided by GE to Customer, as described in Section 4.
1.11. "Hosted Services" are defined in Section 3.
1.12. "Infringement Claim" is defined in Section 12.1.
1.13. "Open Source Software" means any software that is distributed as "free software," "open source software" or under a similar licensing or distribution model, including without limitation the GNU General Public License (GPL) (including the GNU Affero GPL License), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL) and the Apache License.
1.14. "Order" means Customer's acceptance of GE's quote or proposal to which these General Terms and Conditions are attached.
1.15. "Professional Services" are defined in Section 6.1.
1.16. "Service Documentation" is defined in Section 3.1.
1.17. "Software" is defined in Section 5.1.
1.18. "SOW" or "Statement of Work" is defined in Section 6.1.
1.19. "Support Services" means services associated with the support programs described in Appendix A.
1.20. "Third Party Services" are defined in Section 3.9.
1.21. "Third Party Software" is defined in Section 5.3.
1.22. "User" is defined in Section 3.8.2.
Page : 4 of 16
GE DIGITAL GENERAL TERMS AND CONDITIONS JULY 2017 GE CONFIDENTIAL
2. SCOPE
2.1. Scope. This Agreement sets forth the terms and conditions that govern any Order issued based on this quote or proposal and the provision of GE Offerings described herein and consists of: (a) these General Terms and Conditions, (b) the GE proposal or quote to which these General Terms and Conditions are attached, and (c) the appendices attached hereto. Any purchase order, order receipt, acceptance, confirmation, correspondence, online terms, or other confirmatory documents presented by Customer shall be deemed to be presented for payment purposes only, and GE specifically objects to, and shall not be bound by, any additional or different terms contained in such documents. In the event of any inconsistency, these General Terms and Conditions shall take precedence over any conflicting or inconsistent term in the Order.
3. HOSTED SERVICES
3.1. General. "Hosted Services" are computer software applications, software platforms, and equipment monitoring services that are hosted by GE and provided as a service to Customer. GE shall provide Customer with remote access to the Hosted Services for the term of Customer's paid subscription, as described in the Order. Customer agrees to use the Hosted Services solely in accordance with this Agreement, including the product-specific terms and conditions described in Appendix A, and the written documentation published or provided by GE for the Hosted Services (collectively, "Service Documentation").
3.2. Hosted Services Warranty. For the term of Customer's paid subscription to the Hosted Services, GE warrants that such Hosted Services will materially comply with the then current Service Documentation provided for the Hosted Service. Customer acknowledges that GE may deliver continuous updates, changes, and improvements to the Hosted Services and the Service Documentation. GE may notify Customer of such changes by publishing updates or changes to GE's Web site for the Hosted Services or by means of written notice to Customer. Customer's sole remedy, and GE's sole obligation and liability, for any failure of the Hosted Services to conform to this warranty is for GE, at its option, to: (1) provide a correction or work-around or provide an issue resolution, or (2) permit Customer to terminate its subscription to the affected Hosted Services and receive a refund of the prepaid fees, if any, for the terminated and unexpired portion of such subscription.
3.3. DISCLAIMERS. WITHOUT LIMITING THE DISCLAIMERS IN SECTION 9.2, GE SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT HOSTED SERVICES WILL OPERATE FREE FROM ERROR, INTERRUPTION, OR DISRUPTION, INCLUDING, WITHOUT LIMITATION, DUE TO CYBER-ATTACKS, MALICIOUS OR OTHERWISE, OR FROM INTERRUPTIONS IN INTERNET CONNECTIVITY (INCLUDING DELAYS OR PACKET LOSS). CUSTOMER ACKNOWLEDGES THAT THE HOSTED SERVICES ARE NOT INTENDED FOR REAL- TIME CONTROL OR MONITORING DUE TO THE POSSIBILITY OF INTERRUPTIONS IN SERVICE OR CONNECTIVITY. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SAFE AND CONTINUOUS OPERATION OF ITS EQUIPMENT, FOR VERIFYING RESULTS GENERATED BY THE HOSTED SERVICES, AND FOR TAKING APPROPRIATE ACTIONS BASED ON SUCH RESULTS.
3.4. Changes. GE may change, discontinue, or deprecate any of the Hosted Services (including individual services or the Hosted Services as a whole) or change or remove features or functionality of the Hosted Services or revise the applicable Service Documentation. Without limiting the generality of the foregoing, GE may change, terminate, or discontinue all or a portion of a Hosted Service if required by changes in GE's relationship with a third party provider or licensor; if required to comply with law or requests or government entities; if providing the Hosted Services could create a substantial economic or technical burden or material legal or security risk; or if GE determines that use of the Hosted Services by Customer or the provision of the Hosted Services to Customer is prohibited or impractical due to a legal or regulatory reason. GE may change, discontinue, or add to the Support Services for the Hosted Services from time to time by posting a notice to the Web site where such Support Services are described. If such changes have a materially adverse effect on Customer's use of the Hosted Services, Customer may notify GE in writing, and GE may propose resolutions or work-arounds. If GE is unable to provide Customer with a resolution or work-around reasonably satisfactory to Customer, then Customer may terminate its subscription to the affected Host Services upon written notice to GE and receive a refund of the prepaid fees, if any, for the terminated and unexpired portion of such subscription.
3.5. Use Limitations. Customer's Order may specify usage or deployment limitations relating to the Hosted Services. GE may enforce such usage limitations by technical or resource restrictions, or GE may permit excess usage and invoice Customer for such use at GE's standard rates. Customer agrees to pay for such additional invoices in accordance with the payment terms of this Agreement. If a usage limitation designated in the Order is based on limitations or entitlements not monitored by GE, then Customer agrees to limit its usage only to the designated scope and promptly notify GE if such limitations are exceeded. Customer shall use the Hosted Services solely for its internal business purposes as permitted by this Agreement and shall not license, sublicense, sell, resell, rent, lease, transfer, assign, publish, disclose, time share or otherwise commercially exploit the Hosted Services or make the Hosted Services available to any third party, other than as expressly permitted by this Agreement.
3.6. Suspension. GE may suspend Customer's right to access or use any portion or all of the Hosted Services upon notice to Customer if GE determines that Customer's use of or registration for the Hosted Services: (i) is unlawful, fraudulent, or prohibited by law, (ii) poses a security threat to the Hosted Services, GE, GE's Affiliates, or any third party, (iii) may adversely impact the integrity of the Hosted Services or the systems or content of any other customer, (iv) may subject GE, GE's Affiliates, or any third party to liability, (v) violates the Acceptable Use Policy or acts in a manner inconsistent with Customer's Responsibilities as set forth in Section 3.8, or (vi) exceeds the scope of use authorized by GE. GE may also suspend Hosted Services if Customer is more than 30 days overdue on any payment obligation under this Agreement. GE shall use commercially reasonable efforts to re-establish Hosted Services after GE determines the cause of the suspension has been resolved. Any suspension under this paragraph shall not excuse Customer's payment obligations under this Agreement.
3.7. Security and Data Privacy. 3.7.1. Security. GE shall use reasonable efforts to implement appropriate measures, in accordance with GE's standard security policies applicable to the Hosted Services ("Data Protection Plans") designed to secure Customer Content against accidental or unlawful loss, access, or disclosure. GE reserves the right to modify Data Protection Plans from time to time upon notice to Customer.
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3.7.2. Data Privacy. With respect to Customer Content, GE shall act as the data processor of Customer Content in accordance with Customer's instructions as contemplated by this Agreement. If Customer Content includes any data subject to specific legal or regulatory requirements (including, but not limited to, health care data, sensitive personal information, export-controlled data, or sensitive government data), GE shall not have any responsibility to discover or determine the appropriate classification of Customer Content or to comply with such requirements, except to the extent that the applicable Service Documentation specifies that the Hosted Service meets a particular standard. Customer consents to GE's collection, use, and disclosure of information associated with the Hosted Services as described in this Agreement and the applicable Data Protection Plan, and in particular to the processing of Customer's Content in, and the transfer of Customer Content into, any country in which GE or its affiliates or subcontractors maintain facilities (including the United States). GE shall treat Customer contact information (including business contact information of Customer representatives) in accordance with GE's Privacy Policy available at http:// www.ge.com/privacy. Customer consents to the disclosure of Customer Content to GE's subcontractors and Affiliates who agree to maintain and use Customer Content in accordance with this Agreement.
3.8. Customer's Responsibilities. 3.8.1. Customer Content And Equipment. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Content and Customer equipment. Customer is responsible for securing all necessary rights and permissions to provide Customer Content to GE and to use Customer Content with the Hosted Services. For example, Customer is solely responsible for:
3.8.1.1. the technical operation of Customer Content, including ensuring that calls Customer makes to or from any Customer application or service are compatible with the Hosted Services;
3.8.1.2. compliance of Customer Content with the Acceptable Use Policy, Data Protection Plan, and applicable Service Documentation;
3.8.1.3. compliance by Customer with all applicable laws, executive orders, administrative rules and regulations, safety standards, ordinances, and court orders in using the Hosted Services;
3.8.1.4. any third party claims relating to the legal status of Customer Content;
3.8.1.5. the operation, control, conditions, use, and maintenance of Customer equipment and ensuring that Customer's computer systems and equipment meet the current technical requirements for the Hosted Services;
3.8.1.6. the accuracy, completeness, and timeliness of Customer Content; and
3.8.1.7. proper handling and processing of notices sent to Customer (or any of Customer's Affiliates) by any person claiming that Customer Content violates such person's rights, including notices pursuant to the U.S. Digital Millennium Copyright Act or similar laws of other countries.
3.8.2. Customer Security. Customer is responsible for properly configuring and using the Hosted Services and taking Customer's own steps to maintain appropriate security, integrity, and backup of Customer Content, which may include routine archiving of Customer Content and the use of encryption technology to protect Customer's Content and credentials. Customer's credentials (which may include username, passwords, tokens, certificates, keys, and pins) issued by GE or selected by Customer for accessing the Hosted Services are for Customer's internal use only and Customer may not shore or disclose them to any other entity or person, except that Customer may disclose Customer's credentials to Customer's employees, agents, and subcontractors performing work on Customer's behalf ("User"). Customer is responsible for any use of Customer's credentials and for notifying GE immediately of any breach of security related to Customer's credentials. Customer is responsible for complying with the Data Protection Plan and all other security requirements published by GE or communicated to Customer for securing Customer Content in connection with using the Hosted Services. Customer is deemed to have taken any action that Customer permits, assists, or facilitates any User or other person or entity to take related to this Agreement, Customer Content, or the Hosted Services. Customer shall not take any action to circumvent any security feature or attempt to exceed authorized access to the Hosted Services or its related systems or networks; interfere with or disrupt the integrity or performance of the Hosted Services or the data contained therein; or send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. If Customer becomes aware of any violation of the foregoing by a User, Customer shall immediately terminate such User's access to Customer's account and notify GE. 3.8.3. Connectivity. Except as expressly provided in the Order, Customer is solely responsible for providing Internet connectivity for Customer's facilities and Customer equipment as necessary to access and use the Hosted Services (including all ISP charges). GE does not and cannot control the flow of data to or from the Hosted Services infrastructure and other portions of the Internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer's connections to the Internet (or portions thereof).
3.9. Third Party Services. If specified on GE's Web sites for the Hosted Services, third parties may offer independent services, including hosted application services ("Third Party Services"), directly to Customer under a separate agreement, and Customer's acceptance of such offers will constitute a separate agreement solely between Customer and the third party provider thereof. If Customer subscribes to Third Party Services, Customer consents to GE sharing with the third party provider: (i) Customer contact and account information, (ii) Customer Content in connection with Customer's use of the Third Party Services, and (iii) additional information, if any, disclosed in writing to Customer in connection with the Third Party Services. GE shall have no warranty, support, maintenance, or other obligations or liability under this Agreement with respect to such Third Party Services.
4. HARDWARE
4.1. Delivery. Delivery of Hardware sold will be made FCA GE's facility (Incoterms 2010). Title to Hardware shipped by GE from the United States shall pass to Customer immediately after each item departs from the territorial land, seas, and overlying airspace of the United States. Title to all other Hardware
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sold shall pass when the product is made available for shipment at the point of shipment. Delivery of Hardware leased to Customer shall be made by commercially reasonable means. Title to such leased Hardware shall not pass to Customer. Title to any software embedded in or included with Hardware ("Embedded Software") does not pass to Customer.
4.2. Embedded Software. GE grants to Customer a limited, nonexclusive license to use any Embedded Software only with and as embedded within the associated Hardware, and Customer shall have no other rights with respect to Embedded Software, including any right to copy or modify the Embedded Software. Customer may transfer the Embedded Software to a third party only to the extent that Customer is permitted to transfer the associated Hardware under this Agreement. Embedded Software is otherwise governed by the license restrictions set forth in Section 10.4 below.
4.3. Hardware Warranties.
4.3.1. Hardware Sold. During the applicable warranty period stated below, GE warrants that Hardware sold will be free from material defects in material and workmanship and will materially conform to any specifications agreed to by the Parties in writing. If any failure to meet this warranty appears within applicable warranty period from the date of shipment of the Hardware, and Customer returns such equipment to GE pursuant to GE's applicable repair and replacement policy, GE shall correct any such failure at its option, (i) by repairing any defective or damaged part or parts of the equipment, or (ii) by making available, FCA GE's shipment facility (Incoterms 2010), any necessary repaired or replacement parts. Inbound shipping charges to GE, including associated taxes, duties, tariffs, etc., shall be paid by Customer. Return (outbound) warranty repair shipping charges shall be paid by GE to Customer's destination. GE shall have no warranty obligation for Hardware damage or malfunction caused by accident, abuse, misuse, neglect, or improper repair, storage or handling by Customer or its agents. If in GE's reasonable judgment such repair or replacement of Hardware is not practicable, GE shall offer to refund or credit monies paid by Customer for such Hardware upon a return of such Hardware to GE. The applicable warranty period for sold Hardware is twenty-four (24) months from shipment date, unless otherwise stated in the Order or an appendix hereto.
4.3.2. Hardware Leased. Provided that Customer has paid all amounts due, GE warrants that Hardware leased will be free from material defects in material and workmanship and will materially conform to any specifications agreed to by the Parties in writing during the lease period. If leased Hardware fails to meet this warranty during the lease period, GE shall correct any such failure at its option, (i) by repairing any defective or damaged part or parts of the Hardware, or (ii) by delivering, in accordance with standard delivery protocols, any necessary repaired or replacement parts. If in GE's reasonable judgment such repair or replacement of Hardware is not practicable, GE shall permit Customer to terminate the lease and return such Hardware. In the event GE determines that the damage to the leased Hardware resulted from accident, abuse, misuse, neglect, or improper repair, storage or handling by Customer or its agents, Customer shall be charged the then applicable list price for the replacement of the Hardware.
4.3.3. Remanufactured Subassemblies or Parts. Unless prohibited by law, certain Hardware may contain remanufactured subassemblies or parts which have been cleaned, refinished, inspected, and tested to new-product standards. The warranty for any such product will be as provided in this agreement or any applicable warranty of the third party manufacturer, if applicable.
4.3.4. Third Party Hardware. GE warrants Hardware manufactured by third parties including, but not limited to, personal computers, gateways, routers, servers, sensors, edge devices, micro drives, rotary disks, compact flash, cables and accessories, and embedded third party firmware only to the extent that the manufacturer's or third party's warranty allows GE to transfer such warranty to Customer. GE shall pass through to Customer any such warranties. Except to the extent any such manufacturer or third party provides a pass-through warranty, such Hardware is provided "AS IS" without warranty of any kind and the manufacturers and/or third parties disclaim all warranties, whether express or implied, including but not limited to the implied warranties of merchantability, title, non-infringement, or fitness for a particular purpose. The manufacturers or third parties shall not have any liability for special, indirect, punitive, incidental, or consequential damages. Customer's sole remedy for breach of such warranty shall be the remedy offered by and available from the manufacturer or third party, if any. GE shall have no liability, whether in contract, tort, negligence, or otherwise, to Customer with respect to third party Hardware and associated Embedded Software.
The remedies stated in this Section 4.3 are Customer's exclusive remedy, and GE's sole obligation and liability, for any breach of the warranties for Hardware.
5. SOFTWARE
5.1. Scope. As used herein, the term "Software" shall mean certain computer software and related documentation described in the Order, that is provided to Customer by digital download or on physical media for Customer's installation on Customer's computers, including any updates or upgrades provided by GE in connection with Support Services. As used herein, the term "Software" excludes any software hosted by or on behalf of GE and provided as a service.
5.2. Licenses. Subject to Customer's payment of all applicable fees and compliance with this Agreement, GE grants to Customer a limited, non-transferable, nonexclusive license, for the license period specified in the applicable Order, to use the Software provided pursuant to the Order for Customer's internal business use. Customer must comply with any license scope or usage limitations (such as named user, concurrent user, processor, server, site, facility, or asset based limitations) described on the applicable Order. Customer shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or commercially exploit the Software, or make the Software available to any third party, other than as expressly permitted by this Agreement.
5.3. Separately Licensed Software. Some Software may be supplied to Customer under a separate license agreement, including Open Source Software ("Third Party Software"). Customer's use of such Third Party Software will be governed by such separate license agreements. GE shall have no warranty, support, maintenance, or other obligations or liability under this Agreement with respect to such Third Party Software.
5.4. Customer Responsibilities. Unless otherwise specified in the Order, Customer shall be solely responsible for:
5.4.1. properly installing, configuring, and using the Software in accordance with applicable documentation,
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5.4.2. providing any hardware, equipment, and physical infrastructure necessary to run the Software,
5.4.3. providing any third party software not included in the Software,
5.4.4. maintaining the security, privacy, and backup of Customer Content,
5.4.5. compliance with applicable laws related to the use, storage, or processing of Customer Content,
5.4.6. the proper operation, control, and maintenance of Customer equipment monitored by the Software, and
5.4.7. applying patches, bug fixes, upgrades, and updates of the Software or third party software.
5.5. GE Software Warranty. GE warrants that as of the date of delivery by GE, Software will materially conform with the written product documentation supplied with the Software. If within ninety (90) days of the date of delivery it is shown that the Software does not meet this warranty, GE shall, at its option, either correct the defect or error in the Software, free of charge, or make available to Customer satisfactory substitute software, or, if none of the foregoing is reasonably practicable, offer to return to Customer all payments made as license fees therefor after Customer certifies that it has returned or deleted all copies of the Software in its possession. The remedy provided in this Section shall be Customer's exclusive remedy, and GE's sole obligation and liability, for any breach by GE of the foregoing warranty.
5.6. DISCLAIMERS. WITHOUT LIMITING THE DISCLAIMERS IN SECTION 9.2, GE SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT: (I) SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR WILL MEET CUSTOMER'S SPECIFIC NEEDS; (II) SOFTWARE WILL DETECT ANY PARTICULAR FAILURE, FAULT, OR CONDITION, OR PROVIDE ANY PARTICULAR DEGREE OF ADVANCE WARNING OF AN IMPENDING FAILURE, FAULT OR CONDITION OF THE CUSTOMER EQUIPMENT; OR (III) CYBERSECURITY SOFTWARE WILL PROVIDE COMPLETE OR COMPREHENSIVE PROTECTION AGAINST ALL POSSIBLE SECURITY VULNERABILITIES OR UNAUTHORIZED INTRUSIONS.
5.7. Delivery. Unless otherwise specified in the Order, Software will be made available for electronic download by Customer. GE shall be deemed to have delivered Software when GE makes the Software available for download by Customer. If the Order specifies that Software is to be delivered to Customer on physical media, then delivery of physical media will be made FCA GE's facility (Incoterms 2010). No title to the Software shall be transferred.
5.8. Return or Destruction. Upon the expiration of Customer's license, or its earlier termination in accordance with this Agreement, Customer shall certify, at GE's written request, the deletion or return of all copies of Software in Customer's possession.
6. PROFESSIONAL SERVICES
6.1. Services. GE shall provide Customer with the professional services ("Professional Services") set out in a written statement of work describing the scope of services, functionality, fees, deliverables, milestones, and estimated delivery dates, and other requirements thereof ("Statement of Work" or "SOW") that is included in the Order or that issues in accordance with an Order. All material changes to any Statement of Work shall be effective only if set forth in a fully executed change order (each a "Change Order").
6.2. Fees and Expenses. In addition to the fees stated in the Statement of Work, Customer shall reimburse GE for all reasonable and customary travel, lodging, and other related expenses incurred by GE or its personnel in connection with the performance of Professional Services.
6.3. Deliverables. The deliverables resulting from Professional Services to be provided by GE to Customer will be described in the applicable Statement of Work ("Deliverables"). Acceptance procedures for the Deliverables, if any, shall be stated in the applicable Statement of Work. Otherwise, Deliverables shall be deemed accepted by Customer if GE has not received written notice of material defects or non-conformity within five (5) business days after delivery. No schematics or source code shall be furnished, unless specified in the Statement of Work.
6.4. License. As between the Parties, GE shall retain all rights, title, and interests to any copyright, patent, trademark, trade secret, or other proprietary or intangible rights, that arise from GE's performance of the Professional Services, including any such rights embodied in the Deliverables, except for the following license to Customer: upon full payment by Customer to GE of all applicable fees, GE grants to Customer a limited, non-exclusive, non-transferable license to use the Deliverables for its internal business purposes, which license shall be perpetual and royalty-free unless otherwise stated in the applicable SOW.
6.5. Customer Responsibilities. If Professional Services are to be provided at Customer's site or a third-party site designated by the Customer, Customer shall on an ongoing basis provide GE access to: (i) such site in a clean, lighted, safe, and level condition; (ii) adequate power sources, networks, telephone, and data lines, and other utilities; and (iii) personnel, information, and documentation as reasonably required by GE. Customer shall be responsible to obtain any required permits, approvals, authorizations, or the like to permit GE to perform services at the site. To the extent Customer discloses or makes available to GE any materials, including Customer Content, Customer represents that it has the full right and authority to disclose such materials to GE for purposes of performing GE's obligations hereunder.
6.6. Professional Services Warranty. GE warrants that Professional Services performed by GE will materially conform to specifications agreed to by the Parties in the Statement of Work and be performed in a manner consistent with standard commercial practices in the industry. If Customer notifies GE of any material breach of this warranty within ninety (90) days from the delivery of the Deliverables, GE shall, at GE's option (i) reperform any defective portion of the Professional Services furnished, or (ii) if reperformance is not practicable, furnish without charge additional Professional Services in an amount essentially equal to those which, in GE's sole judgment, would have been required for reperformance. The Parties agree that the remedy set forth in this Section shall be GE's sole obligation and liability, and Customer's sole remedy, for warranty claims arising from or in connection with Professional Services.
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6.7. DISCLAIMERS. WITHOUT LIMITING SECTION 9.2, IF PROFESSIONAL SERVICES INCLUDE PROVIDING CUSTOMER WITH ADVICE OR DATA, CUSTOMER ACKNOWLEDGES THAT THE INTERPRETATION OR APPLICATION OF ANY SUCH ADVICE OR DATA DEPENDS ON MANY FACTORS OUTSIDE OF GE'S ABILITY TO CONTROL OR FORESEE, AND THEREFORE, CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR CONFIRMING SUCH ADVICE OR DATA WITH APPROPRIATE TESTING PRIOR TO TAKING ANY ACTION OR DECISION. UNLESS OTHERWISE STATED IN A STATEMENT OF WORK, GE DOES NOT GUARANTEE THAT PROFESSIONAL SERVICES WILL PRODUCE ANY PARTICULAR RESULT OR OUTCOME.
7. DELIVERY
7.1. General. Unless otherwise agreed by the Parties in writing: (a) GE shall determine the method and routing of all deliveries; (b) delivery dates and times are approximate and based on (i) prompt receipt by GE of all information necessary to permit GE to proceed with work immediately and without interruption, (ii) Customer's compliance with the payment terms, (iii) prompt receipt by GE of all evidence GE may request that any required export or import license, as applicable, is in effect; (c) the prices for the GE Offerings include only GE's usual quality processes, systems, and tests; and (d) partial deliveries shall be permitted.
7.2. Packing. Hardware or tangible media delivered by GE shall be prepared, packed, and shipped by or on behalf of GE in accordance with good commercial practices, unless otherwise agreed by the Parties. A complete packing list shall be enclosed with all shipments. Customer agrees to reimburse GE for any costs for any non-standard packing, marking, or shipping directions requested by Customer.
8. PAYMENT
8.1. Payment Terms. Except to the extent otherwise specified by GE in writing, invoices for GE Offerings shall be issued pro rata as shipments are made or services performed or made available. If GE consents to delay shipments after completion of any equipment, payment shall become due, title shall pass, and equipment shall be held at Customer's risk and expense as of the date when GE is prepared to make shipment. Unless otherwise agreed in the Order, payment is due net thirty (30) days from the date of invoice. All payments shall be made without set-off for claims arising out of other sales by GE. Payment shall be made in the currency quoted.
8.2. Financial Condition. If the financial condition of Customer at any time does not, in the judgment of GE, justify continued performance on the terms of payment previously agreed upon, GE may require full or partial payment in advance or otherwise shall be entitled to terminate any Order or Statement of Work and receive any early termination charges specified therein.
8.3. Late Payments. Customer shall pay a monthly late payment charge computed at the rate of 1.5%, or the maximum interest rate permitted by law, whichever is less, on any past due amount for each calendar month (or fraction thereof) that the payment is overdue, and Customer shall reimburse GE for any and all costs and expenses of GE's collections efforts including reasonable attorney's fees, and costs associated with compromises and judgments arising therefrom. GE retains a security interest and right of possession in the Hardware articles until Customer makes full payment, and Customer agrees to sign documentation at GE's request as reasonably necessary to perfect such interest.
8.4. Sales and Similar Taxes. GE shall be responsible for and shall pay any and all corporate and personal income taxes imposed on GE and its employees by applicable laws ("GE Taxes"). Customer shall be responsible for and shall pay to GE all taxes, duties, fees, and other charges of any nature (including, but not limited to, ad valorem consumption, excise, franchise, gross receipts, import, export, license, property, sales and use, stamp, contract duty / registration fees, storage, transfer, turnover, value-added taxes ("VAT"), Business and Occupation or other similar taxes, and any and all items of deficiency, penalty, addition to tax, interest, or assessment related thereto), imposed by any governmental authority of any country in connection with the execution or performance of the Agreement ("Customer Taxes"), but excluding GE Taxes . All prices are exclusive of Customer Taxes, which may be added by GE to Customer's invoice if applicable, unless Customer provides a direct pay or exemption certificate to GE where permitted by law. If Customer deducts or withholds any GE Taxes from payments owed hereunder, Customer shall provide to GE, within 30 days from payment, the official receipt issued by the competent government authority to which the GE Taxes have been paid, or an alternative document acceptable to the relevant tax authorities. In respect of taxes to be withheld, if any, Customer shall comply with any applicable bilateral conventions against double taxation. The Parties shall reasonably cooperate to claim any available exemptions from tax, fees, or duties that may apply to this Agreement. When Customer arranges the export or intra-European Union ("EU") community shipment, Customer shall provide to GE, free of charge and within 90 days (or, in the case of exports from the U.S., 30 days), evidence (obtained from Customer's forwarder) of exportation or intra EU community shipment. If the laws in the country in which GE performs under this Agreement, or the laws in the country of incorporation of Customer, require the Agreement to be subject to stamp duty, fee, or registration with any local authority, Customer shall be responsible for the required formalities and bear the related costs. Customer shall return to GE a copy of the registration certificate or a registered copy of the Agreement within 10 days from the due date required by said laws to apply for such fee, duty, or registration.
9. REPRESENTATIONS AND WARRANTIES
9.1. General Conditions of Warranty. The warranties and remedies set forth herein are conditioned upon: proper storage, installation, use, and maintenance of the GE Offering in accordance with the applicable documentation, the proper design, operation, and configuration of the system into which the GE Offering is installed, conformance with any applicable recommendations of GE, and GE's ability to reproduce and observe the claimed defect, and prompt notification to GE of any defects and, as required, promptly making any personnel and computer systems available. Any unauthorized modification to or use of the GE Offerings by Customer will void the warranty.
9.2. DISCLAIMER OF IMPLIED WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, GE AND ITS AFFILIATES AND LICENSORS MAKE NO WARRANTIES, CONDITIONS, OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND GE AND ITS LICENSORS EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT, DATA ACCURACY, SYSTEM INTEGRATION, AND FITNESS FOR A PARTICULAR PURPOSE.
9.3. CUSTOMER WARRANTIES. Customer represents and warrants that it has all rights and consents necessary to disclose Customer Content to GE and to permit GE to use the Customer Content to perform GE's obligations hereunder.
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10. OWNERSHIP
10.1. Customer Content. As between Customer and GE, Customer retains all rights, title, and interests in and to Customer Content. Except as provided in this Agreement, GE obtains no rights under this Agreement from Customer to any Customer Content.
10.2. Service Data. Customer consents to GE's use of Customer Content to provide the GE Offerings to Customer and to perform GE's obligations under this Agreement. Customer further agrees that GE and its Affiliates may use information derived from Customer Content or generated by the GE Offerings to maintain, protect, create, develop, and improve the GE Offerings and other GE products and services, to the extent permitted by applicable law.
10.3. Reserved Rights. Customer acknowledges that the GE Offerings are protected by the copyright, patent, trade secret, trademark, and/or other intellectual property laws of the United States and other countries. As between GE and Customer, GE (or its Affiliates and licensors) own and reserve all rights, title, and interests in the GE Offerings, except those rights and licenses expressly granted to Customer by this Agreement.
10.4. Restrictions. Except as expressly authorized by this Agreement, Customer shall not (a) sublicense, copy, distribute, modify, create derivative works of any GE Offering, except to the extent authorized by GE under separate agreements, (b) reverse engineer, disassemble, or decompile any GE Offering or apply any other process or procedure to derive the source code of the GE Offerings, (c) access or use the GE Offerings in a way intended to avoid incurring fees or to exceed usage limits or quotas, or (d) remove, alter, or obscure any proprietary notices that accompany the GE Offerings; or authorize or assist others to do any of the foregoing.
10.5. Suggestions. If Customer provides GE or its Affiliates with any feedback or suggested improvements to the GE Offerings, then Customer consents to GE's use and implementation of such suggestions, without compensation to Customer, and as between the Parties, GE shall solely own products and services developed by or for GE from such suggestions.
11. CONFIDENTIALITY
11.1. Non-Disclosure and Non-Use. A Party receiving Confidential Information (the "Receiving Party") shall not directly or indirectly, at any time, without the prior written consent of the Party disclosing such Confidential Information (the "Disclosing Party"), use or disclose the Confidential Information or any part thereof for any use other than necessary for the performance of the Receiving Party's obligations under this Agreement or as otherwise expressly permitted by this Agreement. The Receiving Party shall use reasonable efforts, but not less than those efforts it uses to protect its own information of a similar nature, to avoid disclosure, dissemination, or unauthorized use of the Confidential Information of the Receiving Party.
11.2. Compelled Disclosure. If the Receiving Party is requested by a governmental authority to disclose any Confidential Information, it shall promptly notify the Disclosing Party, to the extent permitted by law, to permit the Disclosing Party to seek a protective order or take other appropriate action, and shall assist in such activities. The Receiving Party shall only disclose that part of the Confidential Information as is required by law to be disclosed and the Receiving Party shall use commercially reasonable efforts to obtain confidential treatment therefor.
11.3. Injunctive Relief. In addition to any other rights and remedies under this Agreement or at law, the Receiving Party acknowledges and agrees that, due to the nature of the Confidential Information, its confidentiality obligations to the Disclosing Party under this Agreement are of a unique character and agrees that any breach of such obligations may result in irreparable and continuing damage to the Disclosing Party for which there may be no adequate remedy in damages and accordingly the Disclosing Party shall be authorized and entitled to seek injunctive or other equitable relief.
12. INDEMNIFICATION
12.1. By GE. GE shall, at GE's expense, defend or, at GE's option, settle any claim brought against Customer that any GE Offering infringes any third party's United States patent, copyright, trademark, or trade secret (an "Infringement Claim"), and pay any final judgments awarded by a court of competent jurisdiction or settlements entered into by GE on Customer's behalf. As a condition of GE's obligation, Customer must notify GE promptly of any Infringement Claim in writing, tender to GE sole control and authority over the defense or settlement of such claim, and reasonably cooperate with GE, at GE's expense, and provide GE with available information in the investigation and defense of such claim. Any effort by Customer to settle an Infringement Claim without GE's involvement and written approval shall void any indemnification obligation hereunder. If use of any GE Offering becomes, or in GE's opinion is likely to become, enjoined or subject to a valid claim of infringement, GE may, at GE's option, (i) procure, at no cost to Customer, the right to use such GE Offering, or (ii) modify the GE Offering or provide a substitute that is non-infringing. If the foregoing are not commercially reasonable, GE may, as applicable: (i) terminate Customer's subscription to the affected Hosted Service and refund the terminated and unexpired portion of the prepaid Hosted Services subscription fees, or (ii) terminate Customer's license to the affected Software or Deliverables or accept a return of affected Hardware, and refund the applicable fees or purchase price, less reasonable depreciation. GE shall have no obligation or liability under this Section for any Infringement Claim to the extent caused by: (a) a modification to the GE Offerings not provided or performed by GE, (b) Customer Content and Customer designs and specifications, (c) the combination of the GE Offerings with other hardware, software, content, or services not provided by GE, (d) use of an infringing GE Offering after GE has provided a non- infringing alternative, or (e) use of the GE Offerings beyond the scope authorized by this Agreement or contrary to applicable documentation. This Section states GE's sole obligation and exclusive liability, and Customer's sole remedy, for any third party claims of infringement of any intellectual or proprietary right.
12.2. By Customer. Customer shall defend and indemnify GE, GE's Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to any third party claim concerning: (a) Customer's or any of its Users' use of the GE Offerings, other than an Infringement Claim; (b) the legal status of Customer Content or the combination of Customer Content with other applications, content, or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer Content or by the use, development, design, production, advertising, or marketing of Customer Content; (c) a dispute between Customer and any User; or (d) personal injury and/or property damage alleged to be caused by Customer's use of GE Offerings to manage Customer equipment.
13. LIMITATIONS OF LIABILITY
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13.1. GE, INCLUDING ITS AFFILIATES AND LICENSORS, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, USE, GOODWILL, DATA, OR COSTS OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE). CUSTOMER IS SOLELY RESPONSIBLE FOR, AND BEARS ALL RISKS ASSOCIATED WITH THE CONTROL, OPERATION, AND USE OF CUSTOMER EQUIPMENT. EXCEPT TO THE EXTENT DIRECTLY CAUSED BY GE'S NON-COMPLIANCE WITH THE APPLICABLE GE DATA PROTECTION PLANS, GE SHALL HAVE NO LIABILITY ARISING FROM CYBERATTACKS OR UNAUTHORIZED INTRUSIONS.
13.2. GE, INCLUDING ITS AFFILIATES AND LICENSORS, SHALL NOT BE LIABLE FOR CLAIMS ARISING OUT OF THIS AGREEMENT IN A CUMULATIVE AMOUNT EXCEEDING CUSTOMER'S ACTUAL DIRECT DAMAGES, UP TO THE AMOUNTS PAID BY CUSTOMER FOR THE PRODUCT OR SERVICE GIVING RISE TO THE LIABILITY, AND, IN THE CASE OF HOSTED SERVICES, UP TO THE AMOUNTS PAID BY CUSTOMER IN THE ONE (1) YEAR PERIOD PRECEDING THE CLAIM.
14. TERM AND TERMINATION
14.1. Term. The term of this Agreement will commence on the Order acceptance or execution date and will remain in effect with respect to the Order (including the term of any license or subscription provided therein, and any renewals thereof), unless earlier terminated in accordance with Section 14.3.
14.2. Automatic Renewal. Except as otherwise stated in the Order, each license or subscription for Software or Hosted Services having a fixed and limited initial term shall be renewed automatically for successive one (1) year renewal terms, unless a Party provides the other Party with written notice of its intent to not renew at least thirty (30) days prior to the end of the initial or successive term.
14.3. Termination.
14.3.1. Without Cause. A Party may terminate this Agreement or the Order without cause or for convenience only as expressly permitted by the Order.
14.3.2. For Breach. Either Party may terminate this Agreement for a material breach by the other Party, which breach is not cured within thirty (30) days of written notice provided to the breaching Party, or which breach is incapable of being cured.
14.3.3. For Insolvency. A Party may terminate this Agreement upon notice to the other Party if the other Party becomes insolvent, makes an assignment for the benefit of creditors, has a receiver or trustee appointed, or is the subject of a proceeding under bankruptcy or insolvency law that is not dismissed within thirty (30) days of the filing date thereof.
14.3.4. Effect of Expiration or Termination. The expiration or termination of this Agreement shall terminate the licenses granted and services provided hereunder, except as otherwise expressly stated in the Order or agreed in writing. Upon any termination or expiration of this Agreement, the following Sections survive: 8 (Payment), 10 (Ownership), 11 (Confidentiality), 12 (Indemnification), 13 (Limitations of Liability), 14 (Term and Termination), and 15 (Miscellaneous).
15. MISCELLANEOUS
15.1. Performance by GE. GE shall have the right to use subcontractors and Affiliates to perform its obligations under this Agreement, and in such event, GE shall remain responsible to Customer for such obligations.
15.2. Excusable or Delayed Performance. GE shall not be liable for delays or nonperformance due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of Customer, prerequisite work by others, acts of civil or military authority, government priorities, changes in laws or regulations, fires, strikes or other labor disturbances, floods, epidemics, war, terrorism, riot, delays in transportation or car shortages, or inability to obtain or delay in obtaining suitable labor, materials, government permits, or facilities, due to causes beyond its reasonable control. In the event of any such delay, the time of performance shall be extended for a period equal to the time lost by reason of the delay, or if performance is rendered impossible, GE shall be excused from performance subject to an equitable adjustment to the applicable fees. In the event GE is delayed by conditions caused by Customer or by prerequisite work by other contractors or suppliers of Customer, GE shall be entitled to an equitable price adjustment in addition to extension of the time of performance.
15.3. Independence. GE and Customer are independent contractors, and neither Party, nor any of their respective Affiliates, is an agent, partner, or joint- venturer of the other for any purpose or has the authority to bind the other. Both Parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other Party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other Party's products or services.
15.4. No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
15.5. Trade Compliance. Each Party shall comply with applicable laws that govern the import, export, or re-export of data or materials supplied under this Agreement. Without limiting the foregoing, Customer agrees that it shall not sell, distribute, disclose, release, or otherwise transfer any item or technical data provided under this Agreement to: (i) any country designated as a "State Sponsor of Terrorism" by the U.S. Department of State including, for this Agreement, the countries of Cuba and North Korea (ii) any entity located in, or owned by an entity located in, a "State Sponsor of Terrorism" country, Cuba, or North Korea, (iii) the region of Crimea, or (iv) any person or entity listed on the "Entity List" or "Denied Persons List" maintained by the U.S. Department of Commerce, the list of "Specifically Designated Nationals and Blocked Persons" maintained by the U.S. Department of Treasury or any other applicable prohibited party list of the US Government. This clause shall apply regardless of the legality of such a transaction under local law. Except as otherwise agreed in writing between the Parties, each Party shall be responsible for obtaining and maintaining any authorization required for its performance under this Agreement (including the transfer any item or technical data under this Agreement), such as export license, import license, exchange permit or other required government export or import authorization. Each Party shall provide reasonable assistance necessary for the other Party to secure and comply with such
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authorizations as may be required. Each Party shall not be liable if any government export authorization is delayed, denied, revoked, restricted or not renewed despite commercially reasonable efforts by the Party. Additionally, such delay, denial, revocation or non-renewal shall not constitute a breach of this Agreement. Customer acknowledges that GE may conduct periodic screening of Customer and of its beneficial owners to comply with applicable laws and consents to the foregoing.
15.6. Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
15.7. Severability and Interpretation. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement shall remain in full force and effect. Any invalid or unenforceable portions shall be interpreted to effect the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion shall be severed from this Agreement but the rest of the Agreement shall remain in full force and effect. Section headings are used for convenience only.
15.8. Audit. Customer agrees to permit GE or GE's designated agent, upon reasonable notice to Customer, to audit Customer's books, records, and facilities to verify Customer's compliance with the terms and conditions of this Agreement, including any usage limitations or restrictions applicable to the GE Offerings. If any audit reveals an underpayment by Customer, GE may invoice Customer for such underpayment in accordance with GE's standard policies. Customer agrees to pay such invoice in accordance with the payment terms of this Agreement. GE shall pay for any audits, unless an audit reveals that Customer has underpaid by more than 15% of the fees owed in any 3-month period, in which case, Customer shall reimburse GE for its reasonable audit costs.
15.9. Notices. GE may provide any notice required or permitted to be given to Customer under this Agreement by sending a notice to the mailing or email set forth in the Order or registered by Customer with GE for receipt of notices, as may be updated by Customer from time to time upon notice to GE. Notices to GE may be provided as follows:
By personal delivery, overnight courier, or U.S. Postal registered or certified mail:
GE Digital
2700 Camino Ramon
Suite 450
San Ramon, CA 94583
Attention: GENERAL COUNSEL
By email: [email protected]
15.10. Assignment. Neither Party may assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Party, and any assignment in violation of this provision shall be void. Notwithstanding the foregoing, GE may assign this Agreement, or any of its rights or obligations hereunder, without the necessity for obtaining consent, to any Affiliate of GE. Subject to these requirements, this Agreement shall be binding upon, and inure to the benefit of the Parties and their respective successors and assigns.
15.11. Entire Agreement. This Agreement is the entire agreement between Customer and GE regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and GE, whether written or oral, regarding the subject matter of this Agreement.
15.12. Amendments. Any Amendments to this Agreement must be in writing and must be signed by both Parties. No oral agreement, course of dealing, or trade usage shall be deemed to modify this Agreement.
15.13. Waivers. The failure of a Party to enforce any provision of this Agreement shall not constitute a present or future waiver of such provision or limit a Party's right to enforce such provision at a later time. All waivers must be in writing and signed by the Party issuing the waiver.
15.14. Choice of Law. This Agreement shall be governed by the laws of the State of New York, without reference to its conflict of laws provisions. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. The seat, or legal place, of arbitration shall be New York, New York. The language of arbitration shall be English. The Emergency Arbitrator Provisions shall not apply. The obligations under this Section shall not apply to any claim (including for injunctive relief) by a Party relating to any actual or alleged infringement of its copyright, patent or patent application, trademark, or trade secret, or for any breach of confidentiality hereunder.
15.15. High Risk Uses. Customer acknowledges that the GE Offerings are not designed for real-time control or time-sensitive applications that have the potential to cause death, personal injury, or property damage or that could result in radioactive, chemical, or biological contamination or environmental damage. Customer assumes the entire risk for any such use and shall defend and indemnify GE and its Affiliates from any liability to third parties resulting therefrom. Customer agrees not to use the GE Offerings for control of any nuclear facility or activity.
15.16. U.S. Government Contracting. If Customer is a U.S. Government entity or procures GE Offerings for or on behalf of a U.S. Government entity, the following provisions apply: (a) Customer agrees that all GE Offerings meet the definition of "commercial-off-the-shelf" (COTS) or "commercial item" as defined in FAR 2.101, and that the subparagraph terms of FAR 52.212-5(e) or FAR 52.244-6 (or, for orders from the U.S Government, FAR 52.212-5 and FAR 52.212-4 with tailoring to the extent permitted by FAR 12.302 by replacing all paragraphs except those listed in FAR 12.302(b) with these terms and conditions), and (subject to subsection (e) below) DFARS 252.212-7001(c) or DFARS 252.244-7000, whichever are applicable, apply only to the extent applicable to COTS or commercial items and only as appropriate for the dollar value of this order; (b) with regard to any terms related to Buy American Act or
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Trade Agreements, the country of origin of GE Offerings is unknown unless otherwise specifically stated in writing by GE; (c) Customer agrees that any services offered by GE are exempt from the Service Contract Act of 1965 (FAR 52.222-41); (d) Customer agrees that this sale is not funded, in whole or in part, by the American Recovery and Reinvestment Act unless otherwise set forth in a written agreement of the Parties; (e) GE makes no representations, certifications, or warranties whatsoever with respect to the ability of GE Offerings to satisfy DFARS 252.225-7009, Restriction on Acquisition of Certain Articles Containing Specialty Metals; (f) with regard to DFARS 252.204-7012, Customer agrees that no Unclassified Controlled Technical Information or Covered Defense Information shall be provided to GE, delivered by GE to Customer, or used by GE in the performance of this Agreement; and (g) Customer is solely and exclusively responsible for compliance with any other applicable statutes or regulations governing sales to the U.S. Government, and GE makes no representations, certifications or warranties whatsoever with respect to the ability of GE Offerings or prices to satisfy any such statutes and regulations other than those contained herein.
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Appendix A
Product Specific Terms and Conditions
The following terms and conditions apply to specific GE Offerings listed below, in addition to the terms and conditions of the main body of the General Terms and Conditions. In the event of any conflict between the terms and conditions in this Appendix and the main body of the General Terms and Conditions, these terms and conditions shall take precedence with respect to the GE Offerings described below.
1. Predix Platform / APM (Hosted Service).
1.1. Service Documentation. The Service Documentation for the Predix platform services includes descriptions of services, analytics, and apps, and associated documentation published by GE on the Predix Web site (Predix.io), as may be modified by GE from time to time. The Service Documentation for Asset Performance Management (APM) includes documentation that GE provides for the APM applications and the functionality described on Customer's Order.
1.2. APIs. GE may change, discontinue, or deprecate any application program interface utilized for the Predix platform ("API") from time to time but shall use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 12 months after the change, discontinuation, or deprecation (except if supporting the previous version would pose a security issue or is rendered impossible or impractical as a result of a legal or technological requirement).
1.3. Data Security. GE shall secure the Predix platform and APM applications hosted on Predix according to the published Data Protection Plan available at https://www.predix.io/legal/data-protection, as it may be updated by GE from time to time. Each Party agrees to comply with its respective obligations under the Data Protection Plan. GE may limit or otherwise restrict the ability of third party devices, including gateways, that have not been provided, approved, or certified by GE from accessing or connecting to the Predix Platform or APM applications, if in GE's opinion, such access or connection could pose a security risk or create a security vulnerability to the Hosted Services infrastructure or to other customers.
2. Trial Offerings.
From time to time, GE may offer Customer access to certain GE Offerings that GE designates as "beta," "evaluation," or "trial" on the Predix Web site or in Order documents ("Trial Offerings"). Trial Offerings are provided to Customer free of charge, except as otherwise specified by GE. GE may limit, suspend, or terminate Customer's license or subscription to any portion of the Trial Offerings for any reason, in GE's sole discretion, including, for example, the expiration of the Trial Offerings period, to enforce Trial Offering usage limitations, or to protect GE's services or systems. Any product or service designated "alpha," "beta," or "pre-release" is subject to change without notice, may differ substantially upon commercial release, and may have limited or no Support Services. Trial Offerings have not been fully tested and may contain defects, may lack standard security features, and may be taken offline or become unavailable without notice. Customer acknowledges that Trial Offerings may not meet all the security standards in the Data Protection Plan, and Customer is advised not to process or store any sensitive or confidential information or manage a production environment using Trial Offerings. TRIAL OFFERINGS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND GE HAS NO OBLIGATION OR LIABILITY WITH RESPECT TO TRIAL OFFERINGS.
3. Advisory Intelligence (Hosted Service).
3.1. As the Parties may agree in the Order, GE shall set up and/or host the internet server site ("Internet Advisory Site") to provide Customer with equipment monitoring services ("Advisory Intelligence Services") using sensor data or other parameter data provided by Customer ("Advisory Source Data"). More specifically, Advisory Intelligence Services comprises estimates of the values of Advisory Source Data, residuals of the estimates and Advisory Source Data, difference alerts statistically indicating that the Advisory Source Data is different from what the proprietary technology expects, and incident messages defined by rules applied to all of the above.
3.2. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS IN SECTION 9.2, GE SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ADVISORY INTELLIGENCE SERVICES WILL DETECT ANY PARTICULAR FAILURE, FAULT, OR CONDITION, OR PROVIDE ANY PARTICULAR DEGREE OF ADVANCE WARNING OF AN IMPENDING FAILURE, FAULT, OR CONDITION OF CUSTOMER EQUIPMENT.
4. Gateway Devices (Hardware).
4.1. GE has the right to remotely administer any device provided by GE pursuant to the Order for collecting and transmitting machine process data in order to provide a GE Offering ("Gateway Device"). If a Gateway Device is lost, stolen, damaged or destroyed, the Customer may order a replacement unit at the then current list price without extending the term of the Agreement with GE. Except as otherwise stated in the Order, upon termination of the applicable subscription or lease, Customer shall return the Gateway Device in accordance with GE's instructions. If specified in the Order, the Gateway Device may be provided by Customer (and not GE) and therefore shall remain the sole property and responsibility of Customer. GE shall have no warranty or other obligation with respect to Customer-provided Gateway Devices. GE has the right to remotely administer any Gateway Device and apply critical software updates, in coordination with Customer.
5. Cyber-security Products.
5.1. Cyber-security Products and Services. GE may offer GE's cybersecurity products and services, as defined in the Order. Specific terms and conditions applicable to specific Cybersecurity products and services are described below and in the applicable Order.
5.2. OpShield (Software and/or Hardware).
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5.2.1. "Opshield" means the cybersecurity software and/or hardware products designated "Opshield" in the Order.
5.2.2. Opshield is not intended for Customers that are United States government entities. Licensing and use of OpShield by United States government entities are subject to additional restrictions and requirements.
5.2.3. Protection Packs. Protection Packs are updates designed to enhance OpShield's ability to protect against known cyber security vulnerabilities. For purposes of this Agreement, Protection Packs are considered "Software" as defined in the Agreement and will be provided by GE on a pre-paid subscription basis as described in a Customer Order. Protection Packs are separate from any software updates provided by GE.
5.2.4. Warranty. The warranty period for Opshield hardware is one (1) year from shipment date.
5.3. ATP (Hardware). 5.3.1. Devices Under Test. "ATP" means the hardware designated Achilles Test Platform in the Order. Notwithstanding anything to the contrary in this Agreement, a device or equipment that is tested for certain defined security vulnerabilities using an ATP ("Device Under Test") must be: (a) equipment manufactured by Customer for its own purposes or for sale to a third party; or (b) equipment procured by Customer from a third party and used by Customer for its own business purposes or incorporated into or deployed with Customer's equipment or systems.
5.3.2. Test Results. Results of tests generated by Customer using an ATP are GE Confidential Information and may be used only for Customer's internal business purposes, and may not be published, disclosed or distributed to any person other than: (i) GE; (ii) if manufactured by a third party, the third party manufacturer of a Device Under Test; and (iii) if the Device Under Test is manufactured by Customer or included in equipment or systems manufactured by Customer, the purchasers or prospective purchasers of a Device Under Test.
5.3.3. Restrictions. Software provided with an ATP: (i) may be used only to test Devices Under Test in secure, controlled testing conditions; and (ii) may not be used to access, connect to, or interoperate with (whether for testing or any other purpose) any device or system that is in live productive use.
5.3.4. Keys. Installation and use of software provided with ATP may require use of a specific key, which controls the specific modules of software that may be used with an ATP unit ("Key"). Customer shall use each Key only for the purpose of installing and using the ATP Software in accordance with this Agreement. Customer shall not authorize or permit a Key to be used by or on behalf of any other person
5.3.5. Warranty. The warranty period for ATP hardware is ninety (90) days from shipment date. 5.4. Achilles Practices Certification (APC) and Communications Certification (ACC) Services (Professional Services). GE's Achilles Practices and Communications certification services are provided by GE to Customer pursuant to a Statement of Work. The APC and ACC services and any licensing to the Achilles certification marks will be subject to the terms and conditions of this Agreement, in addition to the terms set forth in an applicable Order.
5.5. CYBER-SECURITY PRODUCTS AND SERVICES DISCLAIMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT (I) INDUSTRIAL CYBER SECURITY IS NOT AN EXACT SCIENCE AND THAT ATP, APC, AND OPSHIELD WHEN USED IN ACCORDANCE WITH APPLICABLE DOCUMENTATION, ARE DESIGNED TO DETECT AND PREVENT ONLY CERTAIN VULNERABILITIES AND UNAUTHORIZED INTRUSIONS BASED UPON A FINITE SET OF TEST CASES, AND DOES NOT PROVIDE COMPLETE OR COMPREHENSIVE PROTECTION AGAINST ALL POSSIBLE SECURITY VULNERABILITIES OR UNAUTHORIZED INTRUSIONS; AND (II) TESTING USING CYBERSECURITY PRODUCTS MAY CAUSE DAMAGE TO DEVICES UNDER TEST, AND CUSTOMER AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL DAMAGE TO DEVICES UNDER TEST.
6. ThingWorx / PTC (Software)
6.1. ThingWorx and PTC Software are licensed only for use in conjunction with, and as part of, the software application package provided by GE and may not be separated from the software application package or used on a standalone basis.
7. Meridium Products (Software and Hosted Services)
7.1. Asset Answers Service (Hosted Service). Asset Answers is a service that allows Customer to compare the performance of Customer's assets against comparable assets at similarly situated operating environments based on metrics derived from Customer's asset performance data and aggregated statistics derived from peer users ("Asset Answers Service"). To use the Asset Answers Service, Customer must opt into the service by submitting a specified data set to the Asset Answers Service via the Asset Answers portal ("Benchmark Data"). GE will anonymize this Benchmark Data, pool it with other anonymized data, and use the resulting database to generate key comparison metrics for Customer and other users. By using the Asset Answers Service, Customer consents to the collection and use of Benchmark Data in the manner and for the purpose described above. Any Customer Content other than Benchmark Data will be maintained separately and will not be included in the Asset Answers database. Customer acknowledges that as between Customer and GE, GE owns the Asset Answers Service, including the Asset Answers database.
7.2. Meridium Third Party Components (Software). Some Meridium software add-on modules are licensed to GE by third parties under the condition that GE incorporate certain additional terms and conditions in this Agreement when providing such modules to Customer. These additional terms and conditions are stated in the Meridium Activation Schedule that accompanies the Order, and to the extent that Meridium has licensed such modules to Customer under the applicable Activation Schedule, such additional terms and conditions are deemed to be incorporated herein by reference.
8. ServiceMax (Hosted Services / Professional Services)
8.1. ServiceMax Products and Services. GE offers the ServiceMax Service as a Hosted Service and other related ServiceMax services as Professional Services under the terms of this Agreement. Specific terms and conditions applicable to the ServiceMax products and services are described below and in the applicable Order.
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8.2. Salesforce.com Terms and Conditions. Unless otherwise specified in the Order, the ServiceMax Service is hosted on infrastructure provided by salesforce.com ("Salesforce") via http://www.salesforce.com/AppExchange, and/or other designated websites, including associated services and offline components, all as sublicensed by ServiceMax from Salesforce. Accordingly, the Order for the ServiceMax Service is subject to the Salesforce service agreement available on ServiceMax's website at http://www.servicemax.com/pdfs/titaniumterms.pdf ("SFDC Service Agreement"). In the event of a conflict between the terms of this Agreement and the terms of the SFDC Service Agreement, the terms of the SFDC Service Agreement shall control in all respects with respect to the ServiceMax Service.
8.3. Fees. Unless otherwise specified on the Order, the subscription fees stated in each Order for ServiceMax services shall be effective during the initial term specified in that Order and subscription fees shall be billed on an annual basis payable in advance.
9. Acceleration Plans (Support Services).
9.1. Support Services. GE shall provide the support program and associated level of support as reflected in the applicable Order ("Support Services"). The applicable program, level of service and included or a la carte components that constitute the Support Services are further described in the Acceleration Plans Support & Services Guide and shall be acknowledged by GE (the "Support Confirmation"). Support Services may include various types of Services as described in the Acceleration Plans Support & Services Guide.
9.2. Nature of Support Services. Support Services may be provided independently as a GE Offering or as a required component of another GE Offering. To the extent Support Services are provided as a component part of another GE Offering, the relevant Support Services must be purchased and shall terminate when such GE Offering is terminated or shall be extended to the extent such GE Offering is extended (including any automatic renewals thereof). To the extent Support Services are associated with Software, such Support Services shall automatically terminate in the event the license to the underlying Software is terminated.
9.3. Adoption Services and Managed Services. "Adoption Services" and "Managed Services" are available as part of some Support Services plans, as further described on Customer's Order. These services provide Customer with assistance, information, and advice in adopting, implementing, and monitoring GE Digital Offerings by providing Customer with key indicators and metrics. Customer acknowledges that the interpretation or application of any such indicators, information, or advice depends on many factors outside of GE's ability to control or foresee, and therefore, Customer assumes sole responsibility for confirming such information or advice with appropriate testing and validation prior to taking any action or decision. GE does not and cannot guarantee that every fault condition can be foreseen or detected or that GE will be able to provide any particular amount of advance warning of any impending fault or failure.
9.4. Term, Renewal and Termination
9.4.1. Support Services Associated with Software. The Support Services subscription term will be as stated on the Confirmation. The subscription term shall be for such initial term and thereafter be renewed automatically for successive one (1) year renewal terms unless a Party provides the other Party with written notice of its intent to not renew at least thirty (30) days prior to the end of the initial or successive term. The renewal rate shall be increased at each renewal to reflect the annually published Consumer Price Index plus one percent (1%) over the prior period. CPI shall mean the U.S. City Average (December to December percent) for ALL Urban Consumers (CPI-U).
9.4.2. Reinstatement Fee. If for any reason, Customer permits the Support Services to lapse, then GE may charge a re-instatement fee as a condition to reactivating such Support Services. 9.5 No Right of Refund. Payment for any and all Support Services is required in advance, without right of refund for any reason.
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Board Meeting Date: 5/9/2018
Category: Consent Agenda Agenda Item: 7S
Department: Treatment Operations
Attachments: Click here to enter text. Title: NOTICE OF EMERGENCY REPAIR WORK COMPLETED ON N. JOHN YOUNG PARKWAY BY WW DANIELS COMPANY TO REPLACE PIPE BEFORE STATE’S ROAD WIDENING PROJECT BEGINS (EM-18-081) Summary: The Field Services Department has had to address maintenance issues repeatedly with a 2-inch polybutylene water main located on the east side of N. John Young Parkway from the First Baptist Church of Kissimmee to the Walgreens Pharmacy at W. Vine Street. Polybutylene is a form of plastic resin that was used extensively to manufacture water supply piping in the 1980s and 1990s due to its affordability; however, with time, problems with polybutylene have come to light. Polybutylene pipe tends to wear away from contact with chlorine and other oxidants in public water causing the pipes to leak.
After numerous water main breaks and with the State of Florida widening project of N. John Young Parkway underway, staff determined it was best to quickly replace the polybutylene pipe with polyethylene pipe. WW Daniels Company, one of TWA’s continuing contractors, was able to mobilize in the time frame needed to abandon the polybutylene water main and connect the five water service lines to the 24-inch water main running parallel to the affected area.
This repair improves reliability of water service to affected customers and prevents continuous restorations of concrete and asphalt. Total Costs: $160,624
Recommended Action: None
Initials: FH
Monthly Overview of Selected Statistical Information
For the month ending Mar 31, 2018 (Un-audited) MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Fiscal Year To Date (FYTD)
Revenues
1 MONTHLY FINANCIAL PRESENTATION - MARCH 2018 FY18 Revenue Summary
2 MONTHLY FINANCIAL PRESENTATION - MARCH 2018 FY18 Rate Revenue Comparison
Authority issued adjustments in both reclaim & water earlier in the fiscal year Includes water & reclaimed water adjustments thru March, less adjustments: Reclaim revenue would be 100.2% YTD Water would be 98.8% YTD
3 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
FY18 Total Revenue Comparison to Prior Year
4 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Fiscal Year To Date (FYTD)
Expenses
5 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
YTD Expenses to Budget
Expense items that reflect a large variance to budget (Comprises 84% of total variance - $3.1M) Personnel - $773k (94% YTD) Other & Professional Services – $1.5m (67% YTD) Other Maintenance - $833k (67% YTD)
6 MONTHLY FINANCIAL PRESENTATION - MARCH 2018 YTD Expenses Comparison
Three categories currently are realizing a significant decrease from FY17 Other Maintenance, Auto Maintenance, & Professional/Contract Services ($886k)
All expense items are at near or under YTD budget
Thru March the operating expenses realized a slight increase over FY17 – 2.8% (PILOT not included) With PILOT 3.5% over FY17
7 MONTHLY FINANCIAL PRESENTATION - MARCH 2018 Major Expense Categories
Above Categories comprises 85% of the operating expense budget All are currently under their YTD budget for a total of $3.7M Overall, including PILOT, operating expenses are at 89% of YTD budget Less PILOT operating expenses are at 87.5% of YTD budget
8 MONTHLY FINANCIAL PRESENTATION - MARCH 2018 YTD Net Operating Revenue
9 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Fiscal Year To Date (FYTD)
System Development Charges
10 MONTHLY FINANCIAL PRESENTATION - MARCH 2018 System Development Charge Revenue
11 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
System Development Charge (SDC) Trends – 10 Years (in 000s)
$29,900 $30,000 $29.8 Budget
$20,552 $20,000
$16,094 $16,789 56% $13,993
$10,000 $9,396 $7,775 $7,353 $7,082 $5,510
$0 FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17 FY18
Total SDC revenue is over last year’s total by 15.6% Total SDC revenue is over budget by 12.8%
12 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Statistical Analysis & Other Information
13 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Authority Loan Summary
81%
14 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Loan Highlights – 2nd Quarter
New loans – 7 New Loans Satisfied loans – 3 Satisfied Loans Inactive loans – 26 Inactive Loans - $98,098 All are residential customers (Average balance - $3,773) Are attached to the location/property Are dormant waiting for a new customer for the loan to be re-activated Active & billed loans – 388 Actively being billed Mixture of residential & commercial accounts Two large commercial loans that were added on one customer account encompass $4.4M BRIDG – Neo City Billed monthly as part of the customer’s bills As with other customers delinquent accounts are subject to termination
15 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Loan Comparison – 2nd to 1st Quarter
Description 2nd Qtr 1st Qtr Variance New Loans 7 9 (2) Satisfied Loans 3 1 2 # Active Loans 388 382 6 $ Active Loans $6,169,452 $1,797,533 $4,371,919 # Inactive Loans 26 28 (2) $ Inactive Loans $98,098 $112,704 ($14,606)
16 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Billed Water Usage Comparison (MG)
FY17 FY18 3,000 2,869 2,972 108% 2,650 2,517 2,384 2,451 103%
2,000
1,000
2.7% 0 1ST QTR 2ND QTR 3RD QTR 4TH QTR
5.7% increase in billed water usage in FY18
17 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
FYTD Billed Water Comparison by Type
Irrigation 10%
Service Type FY18 FY17 % +/(-)
Residential Water 2,618 2,362 10.8%
Commercial Water 2,167 2,121 2.2% Residential Water 49%
Commercial Irrigation 535 550 (2.8%) Water 41%
Total 5,320 5,033 5.7%
Reclaimed Water 1,538 1,126 36.7%
Thru March - MGs
18 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Residential Average Monthly Usage
FY18 FY17 6,000
4,990 4,902 4,595 4,521
4,205 4,000 4,080
2,000
0 OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP
2017 YTD Average - 4,260 2018 YTD Average - 4,549 Increase of 289 Gallons per account or 6.8% for FY18
19 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Commercial Average Monthly Usage
FY18 FY17 72,000
51,430 48,686 49,131
48,000 45,570 42,345
38,545
24,000
0 OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP
2017 YTD Average - 45,982 2018 YTD Average - 45,951 Decrease of 31 Gallons per account or (0.1%) for FY18
20 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Short-Term Rental Average Monthly Usage
FY18 FY17 6,900
6,062 5,781 5,684
4,600 4,665
3,441 3,426
2,300
0 OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP
2017 YTD Average - 4,701 2018 YTD Average - 4,843 Increase of 143 Gallons per account or (3.0%) for FY18
21 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Combined Average Monthly Usage
FY18 FY17 10,500
7,875 7,986 7,547
7,000 6,747 6,684 6,717
3,500
0 OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP
2017 YTD Average - 7,017 2018 YTD Average - 7,259 Increase of 243 Gallons a month or 3.5% for FY18
22 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Irrigation Average Monthly Usage
FY18 FY17 9,600
6,249 6,400 6,020 5,804
4,788 4,615
4,128
3,200
0 OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP
2017 Average - 5,764 2018 Average - 5,267 Decrease of 497 gallons per account or 8.6% for FY18
23 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Outside Average Monthly Usage (Irrigation & Reclaim Combined)
FY18 FY17 15,000
12,612 12,502
10,812
10,000 9,771 9,288
6,748
5,000
0 OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP
2017 Average - 8,738 2018 Average - 10,289 Increase of 584 gallons per account or 17.8% for FY18
24 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
General Service Reclaimed Usage (MG)
Usage 2,400 2,305
1,963
1,803
1,600 1,538 67% Total Usage Total 800
0 2015 2016 2017 2018*
19% increase over FY17 thru March
25 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Reclaimed Water Average Monthly Usage
19,259FY18 FY17 19,500 18,700
15,836
15,009
13,842 13,000
9,654
6,500
0 OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP
2017 Average - 11,961 2018 Average - 15,384 Increase of 3,422 gallons per account or 28.6% for FY18
26 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Bulk Rate Reclaimed Usage (MG)
Usage 2,400 2,308
2,016
1,776 1,600 Inches 1,014
44% Total Usage Total 800
0 0.0 2015 2016 2017 2018*
*2018 totals are thru March 31, 2018 (8%)
27 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Receivable Aging Breakdown (in 000s)
61-90 Days, $5, 0%
+90 Days, $87, 3% 23-60 Days, $40, 1%
0-22 Days, $3,336, 96%
28 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
New Meter Ticket Trends
New Meter Tickets
1,650 1,582 5,400 5,133
4,692
1,232 3,671 1,193 3,600 3,246 1,100
2,775 970
54% 2017 2018 1,800
550
0 FY14 FY15 FY16 FY17 FY18
0 1st Qtr 2nd Qtr 3rd Qtr 4th Qtr
29 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Customer Accounts – Billed Services
Reclaim Thru Thru 7% Services Variance % 03/31/18 03/31/17
Water 103,167 99,658 3,509 3.5%
Water Wastewater 97,158 93,700 3,458 3.7% 44%
Wastewater 42% Irrigation 16,972 16,622 350 2.1%
Reclaim 17,123 15,656 1,467 9.4%
Total 234,420 222,636 8,787 3.9% Irrigation 7%
When combining Irrigation & Reclaim together the overall increase between the two is 5.6%
30 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Staffing Summary
In FTEs
Division Budget Filled Open Human Information Resources 2% Office of the Technology General Counsel Treatment Operations 105.0 99.0 6.0 5% 1% Admin 4% Field Services 80.0 72.0 8.0 Business Services 5% Customer Service 66.5 61.0 5.5 (One Position was eliminated)
Treatment Engineering Services 34.5 31.5 3.0 Operations 31% Engineering Administration 12.5 12.5 0.0 Services 10%
Business Services 15.5 15.5 0.0
Information Technology 14.5 14.5 0.0
Customer Human Resources 8.0 8.0 0.0 Service 19% Field Services 23% Office of the General Counsel 2.0 2.0 0.0
Total 338.5 316.0 22.5
93.4% Positions filled – as of 04.13.18
31 MONTHLY FINANCIAL PRESENTATION - MARCH 2018
Monthly Update
For the month ending March 31st, 2018
(Un-audited)
32