HomeMy WebLinkAbout25I - AGMT - SCADA SYSREQUEST FOR
COUNCIL /ACTION
CITY COUNCIL MEETING DATE:
APRIL 19, 2016
TITLE:
AGREEMENT WITH KAPSCH TRAFFICCOM
USA, INC., FOR SCADA SYSTEM
MAINTENANCE
[NON- GENERAL FUND]
{STRATEGIC PLAN NO. 6, 1C}
CITY MAN R
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
0400T i
❑ As Recommended
❑
As Amended
❑
Ordinance on I" Reading
❑
Ordinance on 2nd Reading
❑
Implementing Resolution
❑
Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and the Clerk of the Council to execute an agreement with Kapsch
TrafficCom USA, Inc., to provide software support and maintenance for the City's water
production facilities Supervisory Control and Data Acquisition System, for the term beginning April
20, 2016 through December 31, 2018, in an amount not to exceed $50,000 per year, for a total
not -to- exceed amount of $150,000, subject to nonsubstantive changes approved by the City
Manager and City Attorney.
DISCUSSION
The Public Works Agency's Water Resources Division operates 21 active water wells and 7 water
pumping stations to supply the city's drinking water. These facilities are controlled by a
Supervisory Control and Data Acquisition (SCADA) system. Kapsch TrafficCom USA, Inc.,
installed the SCADA system in 1992 and upgraded it in 2000. The system uses programmable
controllers at each water production site to communicate with a central computer system located
at the City Corporate Yard to remotely operate water wells, pumps, and reservoirs. When the
controllers and monitoring sensors are triggered, the SCADA system sends out alarms via a short
messaging service (also referred to as SMS or text message) that notifies staff of pump, well,
and /or electrical irregularities in the City's water production system. Staff may then investigate
and correct any problems quickly, saving time, labor, and other associated costs by correcting
malfunctions and minimizing inefficiencies and damage.
Kapsch TrafficCom USA, Inc., licenses its proprietary SCADA system software and provides
technological support to the City. It is a sole- source provider, as no other vendor can provide
these services to the SCADA system. The company has provided excellent service to the City
and been responsive to any issues that have occurred in the past. Staff recommends that
Kapsch TrafficCom USA, Inc., be retained to provide all required upgrades, system maintenance,
and programming improvements for a continued reliable system. Although the agreement will be
executed as of April 20, 2016, the term commences January 1, 2016, in order to pay for services
251 -1
Agreement with Kapsch TrafficCom USA, Inc., for
SCADA System Maintenance
April 19, 2016
Page 2
already provided and to ensure continued and uninterrupted service. The scope of work includes
telephone support, system training, and as- needed on -site support for hardware- or software -
related issues that cannot be resolved by telephone or online.
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 IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
The total amount of the agreement is not to exceed $150,000. Funds have been budgeted and
are available for expenditure in the FY 2015/16 Water Production and Supply Account (No.
06017640 - 62300) and will be budgeted in same account in future fiscal years as shown below.
Any unspent encumbered balance will be carried forward into subsequent fiscal years as needed
to fulfill the agreement term.
Fiscal Year Amount
2015/16
$50,000
2016/17
$50,000
2017/18
$50,000
TOTAL:
$150,000
Y5 e_e
Fred Mousavipour
Executive Director
Public Works Agency
FM /NS /RR
Exhibit: 1. Agreement
APPROVED AS TO FUNDS AND ACCOUNTS:
Francisco Gutierrez
Executive Director
Finance & Management Services Agency
251 -2
CONSULTANT AGREEMENT
THIS AGREEMENT is made and entered into this __ day of April 2016, by and
between ICapsch TrafficCom USA, Inc. ( "Consultant ") 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 ( "City "),
RECITALS
A. The City desires to retain a Consultant having special skill and knowledge in
providing software maintenance support for the Supervisory Control and Data
Acquisition System (SCADA) software for the City's water production facilities, as
well as additional programming and training as necessary.
B. Consultant has been providing software maintenance support for the SCADA
software system and the City wants to continue these services with Consultant. This
Agreement shall cover services provided since January 1, 2016, for continuous
uninterrupted service.
C. Consultant represents that Consultant is able and willing to provide such services to
the City.
D. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably
be expected from a professional consulting fine 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
Consultant shall perform those services as set forth in Exhibit A and incorporated by
reference to and made part of this Agreement.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services
the rates and charges identified in Exhibit B and incorporated by reference to and made part of
this Agreement, The total sum to be expended under this Agreement shall be Fifty Thousand
Dollars ($50,000.00) annually, with a total aggregate not to exceed One hundred and Fifty
Thousand Dollars ($150,000.00) daring the 3 year term of this Agreement.
b. Payment by City shall be made within forty -five days (45) days following receipt of
proper invoice evidencing work performed, subject to City accounting procedures. Payment
need not be made for work that fails to meet the standards of performance set forth in the
Recitals which may reasonably be expected by City.
P,2812&
Exhibit 1
3. TERM
The term of this Agreement shall commence on January 1, 2016, in order to provide
continuous and uninterrupted services and terminate on December 31, 2018, unless terminated
earlier in accordance with Section 15, below.
4. INDEPENDENT CONTRACTOR
Consultant 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 all employer- employee relationship, a joint venture relationship, or
to allow the City to exercise discretion or control over the professional manner in which
Consultant performs the services which are the subject matter of this Agreement; however, the
services to be provided by Consultant shall be provided in a manner consistent with all
applicable standards and regulations governing such services. Consultant shall pay all salaries
and wages, employer's social security taxes, unemployment insurance and similar taxes relating
to its employees and shall be responsible for all applicable withholding taxes.
5. OWNERSHIP OF MATERIALS
This Agreement creates a non - exclusive and perpetual license for City to copy, use,
modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property
embodied in plans, specifications, studies, drawings, estimates, and other documents or works of
authorship 'fixed in any tangible medium of expression, including but not limited to, physical
drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared
or caused to be prepared by Consultant under this Agreement ( "Documents & Data").
Consultant shall require all subcontractors to agree in writing that City is granted a non - exclusive
and perpetual license for any Documents & Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any
and all Documents & Data. Consultant makes no such representation and warranty in regard to
Documents & Data which were provided to Consultant by the City. City shall not be limited in
any way in its use of the Documents & Data at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City's sole risk.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall
maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
a. Cormnercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance which shall include, but not be limited to protection against claims
arising from bodily and personal injury, including death resulting therefrom and damage to
property, resulting from any act or occurrence arising out of Consultant's operations in the
performance of this Agreement, including, without limitation, acts involving vehicles. The
amounts of insurance shall be not less than the following: single limit coverage applying to
bodily and personal injury, including death resulting therefrom, and property damage, in the total
PZ5� 14
amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a)
name the City, its officers, employees, agents, volunteers and representatives as additional
insured(s); (b) be primary and not contributory with respect to insurance or self - insurance
programs maintained by the City; and (c) contain standard separation of insured provisions.
b. Business automobile liability insurance, or equivalent form, with a combined single
limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for
owned, hired and non -owned automobiles.
c. Worker's Compensation Insurance. In accordance with California State law,
Consultant, if Consultant 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, Consultant agrees to obtain and maintain any employer's
liability insurance with limits not less than $1,000,000 per accident.
d. If Consultant is or employs a licensed professional such as an architect or
engineer: Professional liability (errors and omissions) insurance, with a combined single
limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate.
e. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
(i) Consultant shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
(ii) Certificates of insurance shall be furnished to the City upon execution of this
Agreement and shall be approved in form by the City.
(iii) Certificates and policies shall state that the policies shall not be canceled
or reduced in coverage or changed in any other material aspect without
thirty (30) days prior written notice to the City.
(iv) Consultant shall supply City with filly executed additional insured endorsement.
f. 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 terminate this
Agreement. Such termination shall not affect Consultant's right to be paid for its time and
materials expended prior to notification of termination. Consultant waives the right to receive
compensation kind agrees to indemnify the City for any work performed prior to approval of
insurance by the City.
7. INDEMNIFICATION
Consultant agrees to and shall indemnify and hold hanmless the City, its officers, agents,
employees, consultants, special counsel, and representatives from liability: for personal injury,
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damages, just compensation, restitution, judicial or equitable relief arising out of claims for
personal injury, including death, and claims for property damage, which may arise from the
negligent operations of the Consultant or its contractors, subcontractors, agents, employees, or
other persons acting on their behalf which relates to the services described in section I of this
Agreement. Notwithstanding the foregoing, to the extent Consultant's services are subject to
Civil Code §2782.8, the above indemnity shall be limited, to the extent required by Civil Code
§2782.8, to claims that arise of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Consultant.
8. INTELLECTUAL PROPERTY INDEMNIFICATION
Consultant shall defend and indemnify the City, its officers, agents, representatives, and
employees against any and all liability, including costs, for third party claims of infringement of
any United States letters patent, trademark, or copyright infringement, including costs, contained
in the work product or documents provided by Consultant to the City pursuant to this Agreement.
Such indemnification shall not apply where the City has (1) modified Consultant - provided work
products or documents, (2) used such work products or documents in a way not intended by this
Agreement, (3) combined the work products or documents with other materials not provided by
Consultant, or (4) failed to reasonably notify Consultant of the claim and allowed Consultant to
control the defense and settlement of such claim in Consultant's discretion.
9. RECORDS
Consultant shall keep records and invoices in connection with the work to be perfonned
under this Agreement. Consultant shall maintain complete and accurate records with respect to
the costs incurred under this Agreement and any services, expenditures, and disbursements
charged to the City for a minimum period of three (3) years, or for any longer period required by
law, from the date of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of the City to
examine, audit, and make transcripts or copies of such records and any other documents created
pursuant to this Agreement during regular business hours. Consultant shall allow inspection of
all work, data, documents, proceedings, and activities related to this Agreement for it period of
three (3) years from the date of final payment to Consultant under this Agreement.
10. CONFIDENTIALITY
If Consultant received from the City information which due to the nature of such
information is reasonably understood to be confidential and /or proprietary, Consultant 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 Consultant disclosed in a publicly available source; (c) is in rightful
"Ac"IsI-V
possession of the Consultant and disclosed without an obligation of confidentiality; (d) is
required to be disclosed by operation of law; or (e) is independently developed by the Consultant
without reference to information disclosed by the City.
11. CONFLICT OF INTEREST CLAUSE,
Consultant covenants that it presently has no interest and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under
this Agreement.
12. 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, sent by fax or other telegraphic
communication in the manner provided in this Section, to the following persons:
To City: Clerk of the Council
City of Santa Ana
20 Civic Center Plaza (M -30)
Santa Ana, CA 92701
Fax 714 - 647 -6956
Copies to: Fred Mousavipour
Executive Director
Public Works Agency
City of Santa Ana
20 Civic Center Plaza (M -36)
P.O. Box 1988
Santa Ana, CA 92702
Fax 714- 647 -5622
And City Attorney
City of Santa Ana
20 Civic Center Plaza (M -29)
P.O. Box 1988
Santa Ana, CA 92702
Fax 714- 647 -6515
Consultant: Kapsch TrafficCom USA, Inc.
Attn: Philip Jacobs
4256 Hacienda Drive, Suite 100
Pleasanton, CA 94588
Fax 925- 225 -1610
PL8)2y
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 fax, 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.
13. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant regarding the subject matter herein, 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 and will serve to fully
supersede existing Agreement. This Agreement may not be modified except by written
instrument signed by the City and by an authorized representative of Consultant. The parties
agree that any terms or conditions of any purchase order or other instrument that are inconsistent
with, or in addition to, that terms or conditions hereof, shall not bind or obligate Consultant nor
the City. Each party 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 parties which are not embodied herein.
14. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant 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. 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.
15. TERMINATION
This Agreement may be tenninated by the City with thirty (30) days written notice of
termination to the Consultant.
a. City shall pay Consultant for all work performed up to and including the termination
date hereunder. As a condition of such payment, the City may require Consultant to deliver to
the City all the 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 Consultant consents to the City's use
thereof for such purposes as the City deems appropriate.
b. Payment need not be made for work that fails to meet the standard of performance
specified in the Recitals of this Agreement.
16. NON DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, relation, 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 or any activities under this Agreement. Consultant affirms
that it is an equal opportunity employer and shall comply with all applicable federal, state and
local laws and regulations.
17. JURISDICITON - 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.
18. PROFESSIONAL LICENSES
Consultant shall, throughout the tern 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 Sates, the State of California,
the City of Santa Ana and all other governmental agencies. Consultant shall notify the City
immediately and in writing of her inability to obtain or maintain such permits, licenses,
approvals, waivers, and exemptions. Said inability shall be cause for termination of this
Agreement.
19. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below 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.
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 Consultant be liable for consequential, indirect, special or
punitive damages hereunder; direct damages shall not exceed the amounts paid to
Consultant hereunder.
FF 11 01
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
CITY OF SANTA ANA
ATTEST:
MARIA D. HUIZAR DAVID CAVAZOS
Clerk of the Council City Manager
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
By:
LISA STORCK
Assistant City Attorney
RECOMMENDED FOR APPROVAL: CONSULTANT:
FRED MOUSAVIPOUR
Executive Director
Public Works Agency
Kapsch TrafficCom, USA, Inc.
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Tax ID#
751—I'd
EXHIBIT'
t- <..,
Kapsch TraffigCom USA, Inc. // �+(-� ��'
I ka- PSLR/ J `'- ,,.
January 12, 2016
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:
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 January 1, 2016 to December
31, 2016. The following paragraphs comprise the terms and conditions upon which the
Maintenance and Service Contract will be based.
Software Maintenance
a) Each year Kapsch will provide three, 2 -day on -site visits (48 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 TrffiBcCo n USA, Inc. 142561iacienda Drive, Suite 1001 Pines 2619-41 Iona: (925) 225 -1600 1 Fax, (925) 22.5 -16101 vwv.kapscncom
EXHIBIT
Kapsch TrafficCom USA, Inc. Kaf'7�f�%r'7 �>
City of Santa Ana
Jan 12, 2010
Hardware Maintenance Page 2of5
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 TrafHcCom USA, Inc. 1'1256 Hacianda Drive, Suite 100 1 P�asan5111 Phone. (025) 225 -1600 1 Fax (025) 225 -1610 1 w .kapschsom
Kapsch TrafficCom USA, Inc.
lcap5c17
City of Santa Ana
Jan 12, 2016
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
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. 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: $70,500
Training
a) Each year Kapsch will provide one, 3 -day onsite operator and system manager
training visit for an unlimited number of Santa Ana personnel. Training manuals will
be provided by Kapsch, computer workstations shall be provided by Santa Ana.
Accepted: $21,000
Miscellaneous Professional and Support Services
c) Additional services - DYNAC SCADA system programming and /or materials provided
on request will be billed at our published Professional and Support Services rates on
a Not to Exceed (LATE) basis.
Accepted: _ NTE $58,500
Kapsch 1'rafflcCom USA, Inc. 14256 Hacienda Drive, Suite 1001 Pj�sW�,-)� a Phone: (025) 225 -16001 Fax: (525) 22546101 w Aepsch.com
Kapsch TrafficCom USA, Inc. k -g3P.5 1 j =''
City of Santa Ana
Jan 12, 2016
Page 4 of 5
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
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
a) The fixed price amount(s) 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 36 months from January 1, 2016. The Contract
can be renegotiated and renewed on a yearly basis thereafter.
Contract Acceptance
Kapsch, Inc.
authorized signature
title
date
Client
authorized signature
title
date
Kapach rraniccom USA, Inc. 14256 Hacienda Drive, Suite 1001 Pleasanton, CA 94588 Phone. (925) 22546001 Fax. (925) 225 -16101 w .kapsch.com
251 -14
Kapsch TrafficCom USA, Inc. * -aP.5 17 ._ X --''
City of Santa Ana
Jan 12, 2016
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.
Philip J. Jacobs
Sr. Project Manager
Attachment (1) Professional and Support Services
Kapsch TrafficCom USA, Inc. 142561 lactentla Drive, Suite 1001 PIQ� L C JW Phone: (925) 225.1600 i Fax: (926) 225.1610 1 v uev- kapseh.com
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PROFESSIONAL AND SUPPORT SERVICES
Kapsch is pleased to provide the following categories of services:
I. PROFESSIONAL SERVICES
Division /Department Manager
$210.00
Sr. Project Manager
200.00
Project Manager
190.00
Sr. Software Engineer
220.00
Software Engineer
160.00
Sr. Systems Engineer
190.00
Systems Engineer
150.00
Applications Engineer
110.00
Field Specialist
140.00
Field Technician
100.00
Designer /Draftsperson
90.00
Administrative Support
80.00
IL FIELD SERVICES
Field Services supplied to customers not covered by an established Contract Service Agreement
or services as requested by a customer for a specific day, time or reason, outside the scheduled
service provided under a Contract Service Agreement.
Service and Travel Time Portal to Portal (See Note).
a. Std. work hours 8:00 a.m. to 5:00 p.m. Standard Rate per I and III
b. Saturday and hours other than 8:00 a.m. to 5:00 p.m. 1.5 times Standard Rate
c. Sundays and Legal Holidays Double Standard Rate
Note: The base location for travel time will be Kapsch's nearest service office. Minimum service
charge will equal 4 hours at appropriate service rate.
III. SHOP FABRICATION SERVICES
Shop fabrication services are available at a shop rate of $80.00 per hour. Materials will be
invoiced at cost plus 25 %. Normal shop expenses are included within the above rates; however,
additional expenses such as freight, travel, etc., will be billed at cost. Shop /field calibration,
acceptance testing, start -up, etc., are considered field services and will be charged at the
appropriate field service rates.
Kapsch TraffleCOm USA, Inc. 1 4256 Hacienda Drive, Suite 100 1 Pleasanton, CA 94588 1 Phone 925225 1600 1 Fax 925 2251610 1 w kapach.us
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Kapsch TraffiicCom USA, Inc. /,,,.�PSc
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IV, KAPSCH'S PERSONNEL RATES
Normal labor charges will be at the hourly rates shown in the above tables for each labor
classification. Time In excess of 8 hours per day or 40 hours per week is termed overtime. When
client authorized, overtime rates are 1.5 times normal rates. Rates are in USD. Rates are not
valid for prevailing wage work.
Quoted rates are subject to reasonable adjustment after August 31, 2016.
V. SUBCONTRACTED WORK
When it is necessary to supplement our staff with consultants or outside subcontractors, these
services are billed at our cost plus 15 %.
VI. EXPENSES
Additional expenses are charged at cost plus 15 %. These reimbursable costs include, but are
not limited to:
Travel (air fare, auto rental, public transportation and subsistence)
Use of company vehicles ($90 /day) and employee cars ($0.65 /mile)
Equipment rental or purchase
Long distance and cellular telephone, fax , postage, courier and reproduction work
Applicable sales taxes and freight charges
VII. MATERIALS
Material is charged at list price plus 15 %. Applicable sales, excise taxes, fees and freight
charges are added as applicable.
VIII. DOCUMENTATION
All agreed upon documentation including manuals, drawings and reproductions, will be furnished
to the client during or at the close of the job. We reserve the right to retain either originals or
reproductions of all of our work for our files.
IX. TERMS, CONDITIONS, AND CLARIFICATIONS
The attached terms, conditions, and clarifications shall also apply.
Kapsch TrafflcGom USA, Inc. 1 4256 Haclenda Drive, Suite 190 1 Pleasanton, CA 94588 1 Phone 925 225 1600 1 Fax 925225 1610 1 w kapschms
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Kapsch TrafficCom USA, Inc. 1 =7PSC/�T -, ->
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TERMS AND CONDITIONS
1. ACCEPTANCE. Prices quoted are firm for 60 days unless otherwise stated in quotation. Acceptance of
your order is expressly conditional upon acceptance of these Terms, which shall constitute the complete
agreement. No waiver or modification of any Terms shall be binding on Seller unless made in writing and
signed by the Seller's authorized representative,
2. PRICE ADJUSTMENTS. If shipment is delayed for any reason by Purchaser, Seller may adjust prices
based on prevailing conditions and add all costs caused by the delay. Seller may store the products at
which time the risk of loss shall pass to Purchaser and all storage expenses shall be paid by Purchaser.
3. TAXES. Prices quoted do not include any property, sales, use or other taxes levied on the equipment,
services, or this agreement. Purchaser shall pay for such taxes unless Purchaser furnishes a proper tax
exemption certificate.
4. TERMS OF PAYMENT,
A. All invoices are due 15 days from invoice, and payable in U.S. funds, free of any exchange or other
charges.
B. Purchaser shall, without formal notice, be liable for interest on past due amounts at 3% over the prime
rate.
C. All shipments shall be subject to the ongoing approval of Seller's Credit Department.
5. DELIVERY. Seller shall, after consulting Purchaser, deliver products KO.B. point of shipment, with
freight invoiced to Purchaser.
For any shipment, Purchaser must unpack immediately and if damage is discovered must: a) not remove
product from point of examination unless necessary to protect the product; b) retain shipping container
and packing material; c) notify carrier's agency to make inspection; d) send Seller's copy of carrier's
inspection report; and e) take necessary steps to protect the equipment from any damage. In no event is
Seller liable for any claims or damages if these steps are not followed.
6. CHANGE ORDER. If Purchaser requests changes in the scope of work, Seller shall review the request
and notify Purchaser of the effect on price, delivery, performance, and other contract terms by Seller
under the order or contact.
All Change Orders shall state the adjustment to scope of work, contract price, and other relevant terms.
No change shall bind Seller unless made in writing and signed by Seller's authorized representative.
7. DELAY. Seller shall not be liable for delays due to causes beyond its control, including without limitation,
acts or omissions of Purchaser, acts of God, Government regulations, fires, strikes, floods, riot, war,
embargoes, transportation delays, or inability to obtain labor, materials, or manufacturing facilities
despite diligent efforts. In no event shall the contract be canceled by Purchaser, due to delays or any
other cause, except by written agreement (see Termination paragraph 13). No damages for late
shipment may be assessed against Seller.
8. WARRANTIES. Seller warrants the equipment and services of its own manufacture against defects in
material and workmanship for one year* from delivery or, if installed by Seller, for one year* from
Kapsch TrafflcCone USA, Inc. 1 4256 Hacienda Drlve, $0110 100 1 Pleasanton, CA 94588 1 Phone 925 225 1600 1 Fax 925 225 1610 1 w .kapsch.us
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Kapsch TrafficGorn USA, Inc.
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installation of equipment/performance of services or portions thereof but not to exceed eighteen months`
from shipment, provided Purchaser must give Seller immediate written notice upon discovery of the
defect and immediately ceases use of equipment to prevent further damage. Seller's obligation is limited
to furnishing a repaired or replacement part or, at Its option, to repairing the defective part F.O.B. Seller's
plant. Purchaser shall pay cost of field labor. This warranty excludes equipment or services damaged
due to: abuse: accident; alteration or repair by anyone other than Seller'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.
Seller reserves the right to investigate claims by Purchaser as to defects. Buyer shall pay costs to
investigate invalid claims and for any repair or replacement shown by investigation not to be covered by
warranty.
Products supplied but not manufactured by Seller 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.
'or such period as required by specifications
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES ARISING IN ANY WAY WHATSOEVER. Seller, 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 Purchaser's customers no matter how caused,
including if caused by: abuse; accident; alteration or repair by anyone other than Seller'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.
Purchaser's remedies stated herein are exclusive and the Seller'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.
10. PATENT OR COPYRIGHT INFRINGEMENT. Subject to the following provisions, Seller shall, at its own
expense, defend or at its option settle any claim, suit, or proceeding ( "Claim ") brought against Purchaser,
so far as based on an allegation that any goods, material, equipment, device, computer program, or
article, or any part thereof (hereinafter "Product") furnished hereunder constitutes a direct or contributory
infringement of any claim of any U.S. patent or copyright. The obligation shall be effective only if
Purchaser has made all payments due, notifies Seller promptly in writing, and gives information and
assistance for the defense of the Claim. Seller shall pay all damages and costs awarded in defending
such claim. If the Product furnished becomes the subject for any Claim for infringement of any U.S.
patent or copyright, or if adjudication states that such Product infringes any U.S. patent or copyright, or if
Kapsch TrafflcCom USA, Inc. 1 4256 Hacienda Drive, Suite 100 1 Pleasanton, CA 94588 I Phone 925 225 1600 I Fax 825 225 1610 1 mvv.1 apsch.us
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Kapsch TrafficCom USA, Inc.
Page 3
the use or sale of the Product is enjoined, Seller shall at its option and expense either a) procure for the
Purchaser the right to continue using the Product; or b) replace it with a non - infringing product; or c)
modify it so it becomes non - infringing; or d) remove it and refund the purchase price and the
transportation and installation costs thereof.
The foregoing indemnity does not apply to patented processes performed by or with the aid of the
Product, or another product produced thereby, products supplied according to a design required by
Purchaser and other than Seller, combination of the Product with another product not furnished
hereunder unless Seller is a contributory infringer, or any settlements of a Claim made without Seller's
written consent.
The foregoing states the Seller's entire liability with respect to patent or copyright infringement by said
Product. This provision shall survive the termination of the contract.
11. TECHNICAL DOCUMENTS. Unless certified as binding, technical documents shall serve as an
approximation only. Seller reserves the right to make any necessary alterations. Technical documents
bearing proprietary notices shall be held in confidence by Purchaser, shall remain Seller's exclusive
property, and shall not be copied or disclosed to other persons without Seller's written consent.
12. TERMINATION OR CANCELLATION. Contracts shall not be terminated or canceled without Seller's
written consent. If Seller accepts cancellation, Purchaser agrees to pay without delay the full contract
price for all completed work, suitable charges for unfinished work (including actual expenditures plus
overhead charges) and all other reasonable termination costs.
13. TITLE /RISK OF LOSS. The Product sold shall remain Seller's personal property until fully paid. The
Purchaser agrees to perform all acts necessary to protect and assure retention of title to such Product by
Seller until Purchaser has made full payment. Risk of loss of any part of the Product shall pass to the
Purchaser upon delivery at the designated delivery (F.O.B.) point.
14. SOFTWARE LICENSES. Any software supplied as part of this order shall remain the property of the
Seller or its Licensors. Purchaser agrees to execute a license or sublicense agreement, as applicable,
prior to delivery of any software or software documentation.
15. INSURANCE. Unless additional coverage or, limits are provided for by specification, Seller agrees at all
times during the performance of Its work to maintain in force insurance as follows:
A. Statutory Worker's Compensation in all states includes employer's liability subject to a limit of $1,000,000
each accident.
B. Comprehensive Automobile Liability: Combined Single Limit: $1,000,000
'C. Comprehensive General Liability:
General Aggregate
$2,000 000
_
Products-Comp/OP Aggregate
$2,000,000
_
Personal & Adv. Injuries
$1,000,000
Each Occurrence
$1,000,000
Fire Damage
$50,000
Medical Expense (any one person)
$5,000
I(apsch TraHleCnm USA, Inc. 1 4256 Hacienda Orive, Suite 100 I Pleasanton, CA 94588 1 Phone 925 225 1600 1 Fax 925 225 1610 I w kapschus
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