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HomeMy WebLinkAboutResolution No. 2011-001CITY OF THE COLONY, TEXAS RESOLUTION NO. 2011 - 001 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING THE PROFESSIONAL SERVICES CONTRACT BY AND BETWEEN THE CITY OF THE COLONY AND BACKFLOW SOLUTIONS, INC. TO MANAGE THE BACKFLOW PREVENTION PROGRAM FOR COMMERCIAL DEVICES, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "A"; AUTHORIZING THE CITY MANAGER TO EXECUTE THE CONTRACT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City and Consultant have entered into a Contract such that the Consultant is to provide the following services: MANAGE THE BACKFLOW PREVENTION PROGRAM FOR COMMERCIAL DEVICES; and WHEREAS, the City has determined that it is in the best interest of the City to enter into the Contract with Backflow Solutions, Inc., which is attached hereto and incorporated herein by reference as Exhibit "A," under the terms and conditions provided therein; and WHEREAS, with this Contract the City of The Colony is agreeing to pay the sum not to exceed $495.00 annually for such work. THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THAT: Section 1. The Professional Services Contract, which is attached hereto and incorporated herein as Exhibit "A", having been reviewed by the City Council of the City of The Colony, Texas, and found to be acceptable and in the best interest of the City and its citizens, be, and the same is hereby, in all things approved for a total amount not to exceed $495.00 annually. Section 2. The City Manager is hereby authorized to execute the Contract on behalf of the City of The Colony, Texas. Section 3. This Resolution shall take effect immediately from and after its adoption and it is so resolved. PASSED, APPROVED and EFFECTIVE this 4th day of January, 2011. ATTEST: Christie Wilson, City Secretary ~e Mc City of r: £ Ty, Mayor Colony, T APPROVED AS TO FORM: eff Moo ity Attorney BSI ONLINE SUBSCRIPTION AGREEMENT Effective this 1 day of January, 2010, Backflow Solutions Inc., an Illinois corporation ("BSI") and the City/Village of The Colony, State of Texas, a body politic and corporate (the "Municipality"; BSI and Municipality may sometimes be referred to individually as a "Party" and collectively as the "Parties"), hereby enter into an online subscription agreement (the "Agreement") whereby BSI will perform certain notification and data management functions on behalf of the Municipality and the Municipality will provide BSI with the information described hereafter, and require that all companies that perform mandated backflow assembly ("Assembly" or "Assemblies") tests ("Backflow Test(s)") within the Municipality be directed to the BSI website to enter the result of each Backflow Test performed within the Municipality. 1. Municipality Responsibilities. In addition to any other responsibilities set forth in this Agreement, Municipality shall: (a) Furnish BSI with a current water customer billing database excluding Municipality and Independent School district devices, which shall include a current list of all testable Assemblies, and identify the type of testable assembly, make, model number, serial number, size, hazard and the location address of each such Assembly (the "User Data"). (b) Furnish the User Data in an electronic format, acceptable to BSI ("Electronic Data"). (c) Cooperate with BSI for the purposes of updating User Data and other information to ensure the continuing accuracy of the "Online Database". (d) Municipality shall maintain test report records, and oversee the performance of state annual tests on backflow prevention assemblies for Municipality and Independent School District devices. 2. BSI Responsibilities. In addition to any other responsibilities set forth elsewhere in this Agreement, BSI shall through the use of its proprietary software (the "BSI Online Software"): (a) Maintain the Online Database to insure a functional backflow assembly tracking system that is easy to understand and use by licensed testers ("Testers"). BSI shall also maintain an internet website (the "Web Site") where Testers shall input all data related to Backflow Tests they conduct within the Municipality (the "Test Report"). (b) Send up to two (2) notices to water customers that have Assemblies, advising them that their Assembly is due for testing. The "Test Due Notice" shall be mailed approximately 30 days prior to the scheduled test date ("Test Date"). The second notice (the "Overdue Notice") shall be sent after the Test Date has passed if Backflow Test results have not been entered to the Online Data Base. The Overdue Notice will advise the water customer of its delinquent test status and recite the penalties which may result from failure to comply with the testing procedure. BSI shall transmit an electronic copy of each Test Report to the Municipality within a reasonable time following its receipt. To facilitate the testing procedure, the Test Due Notice will include the identity of the water customer's last Tester of record, together with all relevant contact information, provided that information is available to BSI. At the time the Test Due Notice is mailed to the water customer, BSI will also transmit a notice to the last Tester of record advising that Tester that the water customer's assembly is due to be tested (the "Tester Notification"). The Tester Notification is designed to increase test compliance, thereby reducing enforcement costs incurred by the Municipality. (c) Transmit a notice of non-compliance to the Municipality by electronic transmission ("e-mail") if BSI fails to receive a Test Report for a water customer within 15 days of the Overdue Notice. 3. Warranty and Hold Harmless. (a) BSI hereby represents and warrants to Municipality that BSI is the owner of the BSI Online Software and Web Site or otherwise has the right to grant to Municipality the rights set forth in this Agreement. In the event any breach or threatened breach of the foregoing representation and warranty, Municipality's sole remedy shall be to require BSI to either: i) procure, at BSI's expense, the right to use the software, or ii) refund to Municipality the full amount of the Subscription Fee. (b) The Municipality acknowledges and agrees that the BSI Online Software and Web Site are the exclusive property of BSI and that BSI is making the BSI Online Software, Web Site and Online Data Base available to the Municipality and the Testers. While the BSI Online Software and Web Site enables Testers to upload completed test data, BSI accepts no responsibility or liability for fraudulent acts, errors or omissions which may be contained in the Test Reports. (c) BSI makes no warranty or other assurance as to the operation, quality or functionality of its Web Site or its fitness for any particular purpose. Access to the Web Site may be interrupted, restricted or delayed for any reason. BSI disclaims all responsibility for any damages or losses (including, without limitation, financial loss, damages for loss in business projects, loss of profits or other consequential losses) arising in contract, tort or otherwise from the use of or inability to use the Web Site. (d) IN NO EVENT SHALL BSI, ITS SUCCESSORS OR ASSIGNS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE BSI ONLINE SOFTWARE, WEB SITE AND/OR DATA BASE EVEN IF BSI OR ITS SUCCESSOR OR ASSIGNS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES and in no event shall BSI's liability to Municipality, whether in contract, tort (including negligence), or otherwise, exceed the Subscription Fee paid by the Municipality. The foregoing limitations shall apply even if the above- stated warranty fails of its essential purpose. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. (e) The Municipality agrees to the extent allowed by law, to hold BSI, its successors and assigns harmless now and forever from any and all liabilities that may arise from the Municipality's backflow assembly tracking program and or its cross- connection control program. 4. Protection and Confidentiality. Municipality acknowledges that the BSI Online Software, Web Site and Online Data Base constitute and contain valuable proprietary products and trade secrets of BSI and/or its suppliers. Therefore, Municipality agrees: (a) To respect and not to remove, obliterate, use or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the BSI Online Software or Web Site or output generated by the BSI Online Software or Web Site. -2- (b) That it will not modify, reverse engineer, disassemble, or decompile the BSI Online Software, or any portion thereof. (c) That all copies of the BSI Online Software in any form provided by BSI or made by Municipality are the sole property of BSI and/or its suppliers. Municipality shall not have any right, title, or interest to any such BSI Online Software or Web Site or copies thereof except as provided in this Agreement, and further shall secure and protect all BSI Online Software, the Web Site and any documentation related thereto consistent with maintenance of BSI's proprietary rights therein. (d) To treat (and take precautions to ensure that its employees treat) the BSI Online Software, Web Site and any documentation related thereto as confidential in accordance with the confidentiality requirements and conditions set forth below, to the extent allowed by law including the Texas Public Information Act, Chapter 552 of the Texas Government Code. (e) To the extent allowed by law, indemnify BSI with respect of any liabilities, losses, expenses, or other costs whatsoever incurred by BSI as a result of a breach of Municipality's obligations hereunder, including, but not limited to, any claims made against BSI by any third party. 5. Term of Subscription Agreement. Municipality's subscription and this Agreement will be on a full calendar year basis. If the Agreement is signed at a time other than January 1 of any calendar year the subscription fee will be prorated in accordance with paragraph 7, below, and, absent notice of cancellation, the subscription shall automatically renew for the next calendar year at the then prevailing Subscription Fee. 6. Inducement. Municipality acknowledges and agrees that in order to induce BSI to provide the service contemplated by this Agreement; BSI will charge the total sum of $50.00 (the "Data Entry Charge") for each Test Report submitted to the Online Data Base. BSI will procure the sum of $9.95 in order to perform the functions outlined in this contract. Any and all additional monies, above $9.95 will be rebated on a monthly basis back to the Municipal agent. Therefore, the amount of $40.05 will be rebated to ;The Colony' via check, per backflow device tested and paid for by a licensed testing company. The rebate check will be sent via U.S. mail on a monthly basis The Data Entry Charge shall be paid prior to uploading the test data to the Online Data Base. Municipality shall require all Testers performing Backflow Tests in its community to post all Test Reports to the Online Data Base. Municipality further agrees that BSI may elect to increase the Data Entry Charge, at it sole discretion, effective January 1 of any calendar year, provided BSI provides the Municipality and known Testers not less than 30 days prior notice of each such increase. The "Data Entry Charge" will not increase more than the Consumer Price Index (CPI) for any given year and not without notice as outlined above 7. Cost. Municipality shall pay BSI the sum of $495.00 per calendar year as the annual "Subscription Fee". In the event Municipality initially subscribes for a period which is less than a full calendar year, the Subscription Fee will be prorated based on the number of days remaining in the then calendar year. The Subscription Fee is based on Municipality's ability to provide BSI acceptable Electronic Data. BSI may elect to increase the Subscription Fee, at it sole discretion, effective January 1 of any calendar year, provided BSI provides the Municipality not less than 30 days prior notice of each such increase. Should BSI elect to raise the subscription fee, meeting all of the above criteria, it is limited to no more than 10% of the current annual cost. 8. Termination. The Municipality may terminate this agreement with at least 90 day written notice to Backflow Solutions Inc. of termination. Absent BSI's receipt of written notice of termination received by BSI no later than 90 days prior to the current calendar year renewal, this Agreement will automatically renew on a calendar year basis for as long as -3- Municipality remains a fully paid-up subscriber. BSI reserves the right to terminate this agreement at any time if Municipality fails to abide by the terms and conditions hereof. In the event of an early termination by either Party, there will be no refund of the Subscription Fee, or any part thereof. In the event that this Agreement is terminated for any reason, BSI, upon written request of the Municipality shall deliver all current User Data to Municipality in electronic format at no additional cost to the Municipality. 9. Representations and Warranties. The Parties hereby represent and warrant each to the other that they have the right and authority to enter into this Agreement and to perform their obligations hereunder, that the granting of the rights and undertaking of the obligations hereunder will not infringe upon or conflict with any rights of a third party, and that their performance hereunder will not violate any applicable U.S. laws or government rules and regulations. 10. Governing Law and Jurisdiction. The rights and obligations of the Parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles. Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by arbitration in Chicago, Illinois, under the rules of arbitration of the American Arbitration Association (provided, that in the event of arbitration, the parties agree that neither party shall be permitted to conduct more than three (3) depositions and one (1) round of written discovery). Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either party may apply to the Circuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois, Eastern Division for injunctive relief without breach of this arbitration process. In the event of any litigation or arbitration proceedings arising out of or relating to this Agreement, the prevailing party in such action shall be entitled to recover all costs and fees associated therewith including, without limitation, reasonable attorneys' fees. 11. Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed received when (a) delivered personally, (b) sent by confirmed facsimile or confirmed e-mail (followed by the actual document via U.S. Mail), (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt. Unless otherwise indicated in writing by either Party to the other Party, all communications shall be sent to the address set forth for each party on the signature page hereto. Notices sent to Testers pursuant to paragraph 6, above, shall be sent to the address they register on the BSI Online Web Site. 12. Severability. If any provision of this Agreement is held to be unenforceable or invalid for any reason, the remaining provisions will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives. 13. Amendment; Waiver. No changes or modifications to or waivers of any provisions of this Agreement shall be effective unless evidenced in writing and signed by the Parties. The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. 14. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, all of which shall be taken to be one and the same instrument, for the same effect as if all parties hereto had signed the same signature page. Receipt of an executed signature page to this Agreement by facsimile or other electronic transmission shall constitute effective delivery thereof. -4- 15. Force Majeure. Neither Party shall be liable for failure or delay in performing its obligations hereunder if such failure or delay is due solely to circumstances beyond its reasonable control, including, without limitation, acts or omissions of any governmental body, war, terrorism, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, and interruption of or delay in transportation or utility services necessary to performance hereunder, or any other act, omission or occurrence beyond the Party's reasonable control (provided the non-performing Party promptly notifies the other Party of the applicable circumstances and takes all reasonable measures to remedy the situation in as expeditious a manner as possible). Failure of subcontractors and inability to obtain materials shall not be considered beyond a Party's reasonable control under this paragraph 15. 16. Relationship of the Parties. Nothing in this Agreement shall be construed to imply a partnership, joint venturer or principal-agent relationship between the Parties. Neither Party by virtue of this Agreement shall have any right, power or authority, express or implied, to act on behalf of, or for the use of, the other Party. This Agreement shall not be construed to create rights, express or implied, on behalf of or for the use of any parties other than Municipality and BSI, and neither Municipality nor BSI shall be obligated, jointly or severally, to any third parties or any third party beneficiaries by virtue of this Agreement. 17. Entire Agreement. This constitutes the entire agreement between the parties relating to the subject matter hereof. 18. Privacy Policy. The information which Municipality provides BSI will only be used by BSI to facilitate the creation and maintenance of the Online Data Base. Testers will only have access to the BSI Online Data Base for the purpose of uploading data through a user name and identity key that will change annually to augment the security of the Online Data Base and Web Site. The information contained in the Online Data Base will not be made available to any third party without Municipality's written direction. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. BACKFLOW SOLUTIONS, INC., an Illinois corporation f a body- olitic and corporate By: Name: Brad Stancampiano Title: Executive Vice President Address: 12609 South Laramie Ave. Alsip, Illinois 60803 Telephone: (800) 414-4990 Facsimile: (888) 414-4990 e: C",61 Title: Address: L Telephone: (1,4 / 5Zf Facsimile: 'a 0A - G .~F . L ! 4> - 5 -