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HomeMy WebLinkAbout25Q - AGMT - DATA ACQUISITION SYSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: NOVEMBER 18, 2014 TITLE: AGREEMENT WITH KAPSCH TRAFFICCOM USA, INC., FOR SUPERVISORY CONTROL AND DATA ACQUISITION SYSTEM MAINTENANCE (STRATEGIC PLAN NO. 6, 1, C) CI ANAGLYR RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1�' Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Kapsch TrafficCom USA, Inc., subject to nonsubstantive changes approved by the City Manager and City Attorney, for Supervisory Control and Data Acquisition system maintenance, in an amount not to exceed $50,000, for the term ending December 31, 2015. DISCUSSION The City's SCADA system software was purchased and installed in 1992 and was recently upgraded in 2013. The software company, Kapsch TrafficCom USA, Inc., is a technical firm that provides SCADA system software and support to the City on a sole- source basis. No other vendor can provide these services to the existing SCADA software system. The Public Works Agency Water Resources Division currently operates 22 active water wells and seven water pumping stations to supply the City's drinking water. These facilities are controlled by a Supervisory Control and Data Acquisition ( SCADA) system. The SCADA system uses programmable controllers at each water production site to communicate with a central computer system located at the City Corporation Yard and remotely operate the wells, pumps, and reservoirs. The control system is designed to send out alarms that identify water pump, well, or electrical irregularities throughout the water system. This SCADA technology is vital for monitoring the condition of the City's water system and promptly responding to irregularities. The City's SCADA system software was purchased and installed in 1992 and was recently upgraded in 2013. The software company, Kapsch TrafficCom USA, Inc., is a technical firm that provides SCADA system software and support to the City on a sole- source basis. No other vendor can provide these services to the existing SCADA software system. Staff recommends that Kapsch TrafficCom USA, Inc.,. be retained to provide routine and on -call SCADA system maintenance, to ensure continued and reliable water system monitoring and operation. This vendor has provided excellent service to the City in the past and has been very responsive in addressing system needs. 25Q -1 Agreement with Kapsch TrafficCom USA, Inc., for SCADA System Maintenance November 18, 2014 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #6 Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy C (invest resources and technology to extend the service life of existing infrastructure to protect the City's investment and support a high quality of life standard). ENVIRONMENTAL IMPACTS There is no environmental impact associated with this action. FISCAL IMPACT Funds are available in the Water Production & Supply account (06017640- 62300). APPROVED AS TO FUNDS AND ACCOUNTS: q d Mousavipo r Francisco Gutierrez l.�� Exe tive Director Executive Director Public Works Agency Finance & Management Services Agency FM /NS /CB Exhibit: 1. Agreement with Kapsch TrafficCom USA, Inc. 25Q -2 CONTRACTOR AGREEMENT THIS AGREEMENT, made and entered into this 18th day of November, 2014 by and between Kapsch TrafficCom USA, Inc. (hereinafter "Contractor "), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City "). RECITALS A. The City desires to retain a consultant having special skill and knowledge to provide preventive software maintenance and support for the servers and workstations of the City's Water Supervisory Control and Data Acquisition System (hereinafter "SCADA "). B. Contractor represents that Contractor is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Contractor represents that it is knowledgeable in its field and that any services performed by Contractor under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES A. Contractor shall provide software maintenance and support for the City's Water SCADA System servers and workstations and additional miscellaneous professional and support services, as set forth Contractor's Proposal dated July 17, 2014, attached hereto as Exhibit A and incorporated by reference. 2. COMPENSATION a. City agrees to pay, and Contractor agrees to accept as total payment for all services provided pursuant to this Agreement, an amount not to exceed $50,000 during the term of this Agreement. Such services shall be provided at the following rates and charges: i. Software support and maintenance services shall be provided for an annual fee of $20,000.00, payable within thirty (30) days of execution of this Agreement. ii. Miscellaneous Professional and Support Services shall be billed at Contractor's published Professional and Support Services rates, in an amount not to exceed $25,000.00. iii. Additional services in an amount not to exceed $5,000.00 may be authorized by the Director of Public Works or his designee if required to complete the purposes of this Agreement. Exhibit 1 25Q -3 Payment by City for services under subsections ii and iii shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City, where the City has notified Contractor promptly of such failure and allowed the Contractor a reasonable opportunity to re- perform the subject work to bring it to standard. b. 3. TERM Notwithstanding the date of execution of this Agreement, performance of services under this Agreement shall commence on November 18, 2014 and continue through December 31, 2015, unless terminated earlier in accordance with Section 12, below. 4. INDEPENDENT CONTRACTOR Contractor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer- employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Contractor performs the services which are the subject matter of this Agreement; however, the services to be provided by Contractor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Contractor shall pay all salaries and wages, employees social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Contractor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Due to the nature of services provided, Commercial General Liability insurance is not required. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Contractor, if Contractor has any employees, is required to be insured against liability for worker's compensation or to undertake self - insurance. Prior to commencing the performance of the work under this Agreement, Contractor agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 25Q -4 6. INDEMNIFICATION Contractor agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, to the extent such claims may arise from the operations of the Contractor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. 7. CONFIDENTIALITY If Contractor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Contractor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non -use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Contractor disclosed in a publicly available source; (c) is in rightful possession of the Contractor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Contractor without reference to information disclosed by the City. S. CONFLICT OF INTEREST CLAUSE Contractor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Public Works Agency — Water Division City of Santa Ana 220 South Daisy Avenue Santa Ana, CA 92703 telefacsimile (714) 647 -3378 To Contractor: Kapsch TrafficCom USA, Inc. Philip J. Jacobs, Sr. Project Manager 4256 Hacienda Drive, Ste. 100 Pleasanton, CA 94588 Telefacsimile (925) 225 -1610 25Q -5 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Contractor nor the City. Each parry to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Contractor may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Such prior consent is not required when an assignment or transfer is necessitated by an internal restructuring of Contractor's business. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 12. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Contractor shall be entitled to receive and the City shall pay Contractor compensation for all services performed by Contractor prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Contractor to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Contractor consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement, where the City has notified Contractor promptly of such failure and allowed the Contractor a reasonable opportunity to re- perform the subject work to bring it to standard. 25Q -6 13. DISCRIMINATION Contractor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Contractor affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Contractor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Contractor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. c. In no event shall Contractor be liable for any consequential, indirect, special or incidental damages. In no event shall Contractor's liability hereunder for direct damages exceed the amounts paid to Contractor. d. Contractor shall not be responsible for delays or failure in its performance caused by factors outside its reasonable control such as, but not limited to, extreme weather events, acts of the Government, war or conflict or acts of terrorism. 25Q -7 /// IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Cy sy: J h Str a ssistant City Attorney FOR APPROVAL FRED MOUSAVIPOUR Executive Director Public Works Agency 25Q -8 CITY OF SANTA ANA DAVID CAVAZOS City Manager Kapsch TrafficCom USA, Inc. Mark Thompson Sr. Vice President Kapsch TrafficCom USA, Inc. EXHIBIT A Kapsch TrafficCom USA, Inc. MAINTENANCE AND SERVICE CONTRACT PROPOSAL JULY 17, 2014 25Q -9 Kapsch TrafflcCom USA, Inc. City of Santa Ana Public Works Division 220 S. Daisy Ave Santa Ana, CA 92703 Attention: Mr. Cesar E. Barrera Reference: City of Santa Ana Water SCADA System Subject: Kapsch TrafficCom USA, Inc. DYNAC SCADA System Maintenance and Service Contract Dear Mr. Barrera: kC7 Scn July 17, 2014 Kapsch is pleased to respond to your request for the above referenced Maintenance and Service Contract Proposal. The term of the contract will be from July 1 2014 to June 30, 2015. The following paragraphs comprise the terms and conditions upon which the Maintenance and Service Contract will be based. Software Maintenance a) On a bi- annual basis, Kapsch will provide two, 2 -day on -site visits (32 hours total) preventative software maintenance for the SCADA System servers and workstations. Services will include general system diagnostics as provided with original installation, file and disk management, software backup and archiving, etc. Any additional time requested will be billed at our published Professional and Support Services rates. Accepted: $ Included Standard Telephone Support a) Kapsch's Applications Engineering staff will be made available for telephone support to answer questions regarding the use, modification or troubleshooting of PLC /RTU software provided by Kapsch. b) Kapsch's Software Engineering staff will be made available for telephone support to answer questions regarding the use, modification or troubleshooting of the DYNAC SCADA software provided by Kapsch. c) Kapsch's Software Engineering staff will be made available for telephone and modem support to remotely diagnose, troubleshoot and resolve any problems found in the DYNAC SCADA software provided by Kapsch. d) Client personnel will be required to work with Kapsch personnel via telephone as needed to ensure that any reported problem may be accurately diagnosed. Total Standard Telephone Support Accepted: $ Included Kapsch TrafficCom USA, Inc. 14256 Hacienda Drive, Suite 1001 Pleasanton, CA 94588 Phone: (925) 2261600 1 Fax: (925) 225 -1610 1 w Aapscxocom 25Q -10 Kapsch TrafricCom USA, Inc Kap7C1I ° e44k- City of Santa Ana July 17, 2014 Page 2 of 5 Hardware Maintenance a) On a bi- annual basis, Kapsch will provide on -site preventative hardware maintenance for the SCADA System servers, workstations and peripheral devices. Services will include general system diagnostics as provided with original installation, cleaning, consumables replacement (i.e. changing printer ribbon), etc. Accepted: $ Not - included b) Kapsch will provide for repair or replacement of the SCADA System servers, workstations and peripheral devices via service sub - contracts with original equipment manufacturers or their authorized representatives. Availability of these services will be based upon the terms and conditions of the manufacturers' standard contracts. Accepted: $ Not included LIMITATION OF LIABILITY. IN NO EVENT SHALL KAPSCH BE LIABLE FOR SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY WHATSOEVER. Kapsch, its contractors and suppliers of any tier, shall not be liable in contract, tort or otherwise for damage to or loss of other property or equipment or systems, cost of capital, cost of replacement power or equipment, increased operating expenses, delay damages, or claims of City of Santa Ana's customers no matter how caused, including if caused by: abuse; accident; alteration or repair by anyone other than Kapsch's authorized representatives; improper storage; misuse; improper maintenance; failure to observe instructions; improper or unauthorized access or use; hacker or cracker intrusion or disruption; distributed denial of service attacks; computer viruses or worms; loss, theft, misuse, alteration or corruption of data, programs or information; failure of network security; or other acts, omissions, torts or crimes. City of Santa Ana's remedies stated herein are exclusive and the Kapsch's liability with respect to any contract, or the performance or breach thereof, relating in any way to any work or equipment covered by this contract, whether in contract, tort, or otherwise shall not exceed the price of the particular equipment or part or service for which such liability is claimed. This provision shall survive termination of the contract. WARRANTIES. Kapsch warrants the equipment and services of its own manufacture against defects in material and workmanship for one year from delivery or, if installed by Kapsch, for one year from installation of equipment/performance of services or portions thereof but not to exceed eighteen months from shipment, provided City of Santa Ana must give Kapsch immediate written notice upon discovery of the defect and immediately ceases use of equipment to prevent further damage. Kapsch's obligation is limited to furnishing a repaired or replacement part or, at its option, to repairing the defective part F.O.B. Kapsch's plant. City of Santa Ana shall pay cost of field labor. This warranty excludes equipment or services damaged due to: abuse: accident; alteration or repair by anyone other than Kapsch's authorized representatives; improper storage; misuse; improper maintenance; failure to observe instructions; improper or unauthorized access or use; hacker or cracker intrusion or disruption; distributed denial of service attacks; computer viruses or worms; loss, theft, misuse, alteration or corruption of data, programs or information; failure of network security; or other acts, omissions, torts or crimes. Kapsch reserves the right to investigate claims by City of Santa Ana as to defects. City of Santa Ana shall pay costs to investigate invalid claims and for any repair or replacement shown by investigation not to be covered by warranty. Kapsch TraKicCom USA, Inc. 1 4256 Hacienda Orim Suite 100 1 Pleasanton, CA 94588 Phone: (925) 225 -1600 1 Fax: (925) 225 -1610 1 . kapsch.com 25Q -11 Kapsch TrafficCom USA, Inc. K�7,05Cf7 >>> City of Santa Ana July 17, 2014 Page 3 of 5 Products supplied but not manufactured by Kapsch shall be subject only to the warranty extended by the original manufacturer. THE WARRANTIES SET FORTH IN THIS PROVISION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR, IMPLIED (INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OR TRADE), EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENT. Maintenance and Service Requests a) All maintenance and service requests shall be documented by the Client (i.e. fax, memo, etc.) for future reference and administrative purposes. All maintenance and service requests shall be acknowledged in writing by Kapsch, including diagnosis and corrective actions taken. b) All on -site services provided will be documented on field service reports which will be submitted to the Client daily as services are provided. Standard Scheduling and Availability a) Kapsch personnel will be generally available during normal working hours, 8:00am - 5:00pm, Monday through Friday. Scheduling of maintenance and service work will be based upon current personnel schedules and availability (i.e. at the time of any given request), and the priority of the request. Priorities for maintenance and service requests will be determined on a case -by -case basis. b) Kapsch personnel will also be available for on -call telephone consulting and troubleshooting services, outside the normal work schedule defined above. Accepted: $20,000 Miscellaneous Professional and Support Services c) Additional services and /or materials provided on request will be billed at our published Professional and Support Services rates on a Not to Exceed (NTE) basis. Accepted: NTE $25,000 Resident Maintenance and Service Personnel a) One resident Kapsch Service Engineer will be assigned on a full -time basis to perform preventative and corrective maintenance on -site during normal working hours based upon an 8- hour /day, 40- hour /week schedule. The starting time of daily shifts will be in accordance with normal Client maintenance personnel. Accepted: $ Not included Kapsch Tra@ICCom USA, Inc. 14256 Hacienda Drive, Suite 100 1 Pleasanton, CA 94588 Phone: (925) 225 -1600 1 Fax: (925) 225 -1610 1 wl Aapsch.corh 25Q -12 Kapsch TrafficCom USA, Inc. kapsc% City of Santa Ana July 17, 2014 Page 4 of 5 One resident Kapsch Service Engineer will also be available for on -call telephone consulting and troubleshooting services, outside the normal work schedule defined above. All services provided upon an on -call basis will be billed per Kapsch's published Professional and Support Services rates. Accepted: Time &Material Not Included Billing a) The fixed price amounts) quoted above are due upon acceptance of the Contract and will be invoiced in full based upon Net 30 payment terms. b) An authorized purchase order for the total amount of all fixed price option(s) selected is required prior to any services being rendered. c) The duration of the Contract will be 12 months from the date of acceptance. The Contract can be renegotiated and renewed on a yearly basis. Contract Acceptance Kapsch, Inc. authorized signature title date Client authorized signature title date Kapsch TraXicC= 0SA, Inc. 14256 Hacienda Drive, Suite 100 1 Pleasanton CA 945 8 Phone'. (925) 225 -1600 1 Fax.. (925) 225 -1610 1 `^^�+w kapsch.wrh Kapsch TrafficCom USA, Inc. /iwC^17 >>> City of Santa Ma July 17, 2014 Page 5 of 5 Kapsch looks forward to your favorable review of this proposal. If this proposal is deemed acceptable, please initial each option desired and sign and date both copies and return them to Kapsch as soon as possible. An executed copy will be returned to you for your records. If you have any questions or concerns regarding this proposal please contact the undersigned at our Pleasanton, CA. facility. Yours Truly, Kapsch TrafficCom, USA, Inc. F�� Philip J. Jacobs Sr. Project Manager Attachment (1) Professional and Support Services Kapsch TraRicCom USA, Inc. 14256 Hadenda Drive, Suite 100 1 Pleasanton, CA 94588 Phone. (925) 225 -16001 Fax, (925) 225 -16101 w kapsch corn 25Q -14