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HomeMy WebLinkAbout11 - Approval of Agreement with Delta Systems Engineering, Inc. for Water and Wastewater Automation UpgradesTO: FROM: PREPARED BY: PHONE: TITLE: ABSTRACT: CITY OF NEWPORT REACH City Council Staff Report March 10, 2015 Agenda Item No. 11 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL George Murdoch, Acting Municipal Operations Department Director - (949) 644- 3011, gmurdoch @newportbeachca.gov Rachell Wilfert, Management Assistant (949) 644 -3010 Approval of Agreement with Delta Systems Engineering, Inc. for Water and Wastewater Automation Upgrades The Municipal Operations Department controls and monitors water and wastewater sites through an automation system called SCADA, or Supervisory Control And Data Acquisition. The system was initially built in 1996 and has grown over the years as new facilities and technologies emerge. Hardware and software components have reached an age where upgrading or replacement is necessary. After a competitive RFP process, Delta System Engineering was selected to perform the upgrades. RECOMMENDATION: Approve the agreement with Delta Systems Engineering, Inc. for Water and Wastewater Automation Upgrades for a total amount not to exceed $422,077.60, and authorize the Mayor and City Clerk to execute the agreement. FUNDING REQUIREMENTS: The current adopted capital improvement budget includes sufficient funding for this agreement. It will be expensed to the Water and Wastewater Enterprise accounts 7521- C6002016 and 7541- C6002016 respectively. DISCUSSION: The Supervisory Control And Data Acquisition (SCADA) system is a computerized hardware and software system used to control and monitor equipment at various sites such as water treatment plants, well sites, sewer lift stations and water pump stations. SCADA allows operators to adjust set points, control processes and receive alarms when issues arise. The system provides real -time data as well as historical logging for future trending and analysis. Operators can access the system by desktop or laptop computer anytime of the day or night. 11 -1 The system was built in 1996 as part of the groundwater project bringing water from Fountain Valley to Newport Beach through four wells, a reservoir, a pump station, and treatment plant. It quickly expanded to include most remote water and wastewater sites. In the last few years, staff has experienced difficulty in replacing out -dated hardware, and the reliability of communications to remote sites has become difficult as technology has changed. In order to bring the system up to date, staff determined that a system upgrade is necessary. The upgrade will include replacement of much of the hardware now obsolete. Computer servers specified by our IT division will be replaced and new programs created. Although it's difficult to determine how long hardware will be supported, the typical lifespan is approximately ten years. The upgrade will include a one year warrantee period to assure everything is working properly. In August 2014, MOD issued a Request for Qualifications (RFQ) that required demonstration of minimum qualifications and experience. The City received four statements of qualification (SOQs) in response to the RFQ. After evaluating the SOQs, the City sent three of the firms a formal Request for Proposal (RFP) which contained a detailed list of upgrades and required a breakdown of costs to complete each task. The RFP criteria and scoring matrix is below. POTENTIAL SUBMITTAL EVALUATION CRITERION EVALUATION CRITERION PERCENTAGE OF SCORE Qualifications and experience of the 30% proposing Contractor firm. Delta Systems Engineering The Contractor's recent experience in 20% conducting work for contracts of similar 2 scope, complexity, and magnitude, 56.67 particularly for government agencies. 86.43 The Contractor's ability to provide services 20% as outlined in the SCADA Master Plan and Scope of services. The proposed Project costs. 30% The City received two proposals in response to the RFP. In cooperation with the IT division, an evaluation panel reviewed the proposals and ranked the firms based on qualifications, experience, and the ability to provide the services. This accounted for 70% of the total score. The Finance Department's Purchasing Agent evaluated cost by calculating the cost differential between the two respondents, with the lowest cost respondent achieving a score of 30 points. Rank Proposer Technical Score (out of 70) Cost Ratio Score out of 30) Total Score (out of 100) 1 Delta Systems Engineering 60.67 30.00 90.67 2 Vertech 56.67 29.76 86.43 The results ranked Delta Systems Engineering, Inc.(Delta) as the highest -rated proposer. Delta has extensive experience with the software and hardware and is one of only eight Certified Systems Integrators of Wonderware, a key component of the SCADA system. The professional service agreement with Delta Systems Engineering, Incfor Water and Wastewater Automation Upgrades is for a total amount not to exceed $422,077.60. It includes hardware purchases as well as programing costs and installation. The work is estimated to take approximately one year; however, additional time is added to the contract for any unforeseen delays. During the next year staff will be working on an annual maintenance contract that will include and on -call component for repair of our SCADA system once the warrantee period expires. 11 -2 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Description Attachment A - Agreement 11 -3 ATTACHMENT A PROFESSIONAL SERVICES AGREEMENT WITH DELTA SYSTEMS ENGINEERING INC. FOR WATER AND WASTEWATER AUTOMATION UPGRADES THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement') is made and entered into as of this 4th day of March, 2015 ( "Effective Date "), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City'), and DELTA SYSTEMS ENGINEERING INC., an Arizona corporation ( "Consultant'), whose address is 3350 North Central Avenue, Suite 915, Phoenix, Arizona 85012, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to upgrade the existing SCADA system per the SCADA Master Plan Document ('Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on March 24. 2017. unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work "). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be 11 -4 included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set, forth in Exhibit A, if any, or perform the Services in diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control, However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay, to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes .a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control, 3.4 For all time periods. not specifically set forth herein, Consultant shall, respond in the most expedient and appropriate, manner under the circumstances„ by harid - delivery or mail. 4, COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not-to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Four Hundred Twenty Two Thousand Seventy Seven Dollars and 60/100 ($422,077.60), without prior written authorization from City. No billing rate changes shall be made during the term of this:Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work; a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates,, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement. or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project., but which is not included within the Scope. of Services and which the parties ^did Delta Systems Engineering Inc. Page 2 11 -5 not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Sonja Scriven to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. This Agreement will be administered by the Municipal Operations Department. City's Utilities Manager or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first - class firms performing similar work under similar circumstances. Delta Systems Engineering Inc. Page 3 11 -6 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Delta Systems Engineering Inc. Page 4 11 -7 10. INDEPENDENT CONTRACTOR It. is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of 'City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance ,with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees. to work closely and cooperate fully with City's designated Project Administrator and any,other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. IIK�,�Z�ZHwa��� Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings. that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms. and conditions .described. in the Insurance Requirements attached hereto as Exhibit. C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS.AND TRANSFERS Except as specifically authorized Linder this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall Delta Systems- Engineering Inc. Page 5 11 -8 be construed as an assignment: The sale;, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general, partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or co- tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting, power or twenty -five percent (25 %) or more of the assets of the corporation, partnershipr or joint - venture. 16, SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to. City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and :any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such. subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City.. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but. not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense,, provide, such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not .intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further; any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant'is waived against. Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Delta Systems Engineering Inc. Page 6 11 -9 17.3 CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and /or viewable with Adobe Acrobat. 17.4 All improvement and /or construction plans shall be prepared with indelible waterproof ink or electrostatically plotted on standard twenty -four inch (24 ") by thirty -six inch (36 ") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As- Built' drawings and a copy of digital Computer Aided Design and Drafting ( "CADD ") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. OPINION OF COST Any opinion of the construction cost prepared by consultant represents the consultant's judgment as a design professional and is supplied for the general guidance of City. Since consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, consultant does not guarantee the accuracy of such opinions as compared to consultant or contractor bids or actual cost to City.. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. Delta Systems Engineering Inc. Page 7 11 -10 21. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed 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 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 City to examine, audit and make transcripts or copies of such records and invoices during regular business hours, Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period', from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant.. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. Delta Systems Engineering Inc. Page 8 11 -11 25.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES 26.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first - class mail, addressed as hereinafter provided. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Steffen Catron, Utilities Manager Municipal Operations Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Brian D. Downing Delta Systems Engineering Inc. 3550 North Central Avenue, Suite 915 Phoenix, AZ 85012 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). Delta Systems Engineering Inc. Page 9 11 -12 28. TERMINATION 28.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to 'City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, notr less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Consultant and any subcontractor. In accordance with the California. Labor Code (Sections 1770 et. seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to 'be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (41.5) 703 -4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate & per diem wages. It shall be the obligation of the Contractor or any subcontractor under him /her to comply with all 'State of California labor laws, rules and regulations and the parties agree that the City shall not be liable . for any violation thereof. 30. STANDARD PROVISIONS 30.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this.Agreement.. Delta Systems Engineering Inc. Page 10 11 -13 30.2 Compliance with all Laws. Consultant shall,. at its own cost and expense, comply, with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regu'l'ations and permit requirements and be subject to approval of the Project Administrator. and City. 30.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30.4 Integrated Contract. This Agreement represents the full and complete . understanding of every kind' or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30,:5 Conflicts, or Inconsistencies. In the event there are any conflicts• or inconsistencies between this Agreement and the 'Scope of Services• or any other attachments attached: hereto, the terms of this Agreement shall govern. 30:6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 30.7 Amendments. This Agreement may be modified or amended only by a Written document executed.by both Consultant and City and approved as to form by the, City Attorney. 30:8 Severability. If any term or portion of this.Agreement is held to be- invalid; illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.. 30.9 Controlling Law and Venue,. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall' be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 30.10 Equal Opportunity Employment. Consultant represents that it'is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry; sex, age or any other impermissible basis under law. 30.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing,partyshall not be entitled to attorneys' fees. Delta Systems Engineering Inc. Page 11 11 -14 30.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Delta Systems Engineering Inc. Page 12 11 -15 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTO N Y'S OFFICE Date: By: Aaron C. Harp (Am m-)z.colir City Attorney ATTEST: Date: M Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation By: Edward D. Selich Mayor CONSULTANT: Delta Systems Engineering Inc., an Arizona corporation Date: By: Brian D. Downing President/CEO/Principal-in-Charge Date: By: Angela Downing Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Delta Systems Engineering Inc. Page 13 11 -16 EXHIBIT `4 Control Panels to be modifiedr • BCCC Reclaim Water Pump Station • CompactLogix PLC with 15 cards • Cellular Modem with Antennae • New, OF (6" Panel View Plus Compact OIT) o Stratix 2000 switch • NBCC Reclaim Water Pump Station • CompactLogix PLC with 7 cards • Cellular Modem with Antennae • New, OF (6" Panel View Plus Compact OIT) • Stratix 2000 switch • Zone 4 Reservoir Level & Zone 5 Water Pump Station • CompactLogix PLC with 7 cards • Cellular Modem with Antennae • New OF (6" Panel View Plus Compact OIT)' • Stratix 2000 switch • CM -11 Metropolitan Water District Interconnect • MicroLogix 1400 PLC • Cellular Modem with Antennae o No OIT o Stratix 2000 switch • Big Canyon Reservoir Zone 3 & Zone 4 Water Pump Station • CompactLogix PLC with 9 cards • OF program updates. • Stratix 2000 switch • Big Canyon Reservoir Control Room • CompactLogix PLC with 15 cards • OIT program updates • Stratix 6000 switch • Big Canyon Reservoir Communications • CompactLogix PLC with 4 cards • Cellular Modem with Antennae • No OIT o Stratix 2000 switch • Possible modifications to some panel doors to install 6" Panel View Plus Delta. Systems Engineering Inc.. Page A -1 11 -17 WonderWare Software Licenses: • Upgrade to 5 concurrent InTouch TSE licenses with all the necessary supporting licenses Programming and Engineering Services: • Upgrade to the latest version of InTouch and utilize the InTouch for Terminal Services • Configure InTouch as a Tag Server application with standby redundancy • Update and modernize all the existing WonderWare screens to take advantage of current best practices • Setup server architecture as high availability virtual machines, running VMware ESXi pre - installed by server manufacturer • Setup disaster recovery system with remote server and WonderWare Historian • VPN configuration as needed • Convert existing PLC programs to RSLogix5000 • Replacing the Panel View Plus OIT's with new OIT screens • Update of PanelView OF programs to work with the new PLC's • Coordination with the City of Newport Beach to setup cellular modems on Verizon account • Testing and Startup • Training for up to eight (8) City staff, for a total of eight (8) hours. • One year warranty on all items provided in this scope of work (in addition to any manufacturer warranties). The warranty period shall commence on the date of substantial completion and beneficial use of the system. Delta Systems Engineering Inc. Page A -2 11 -18 SCHEDULE OF BILLING RATES Delta Systems Engineering Inc. Page B -1 11 -19 Estimated Project Upgrade Cost by Task Regular Hourly Rate Regular Minimum Hours After -Hours Hourly Rate* After -Hours Minimum Hours Design and Subtotal (including Category Task Hardware* Programming Construction cost of hardware) Full Upgrade: convert processor & 1/0 PLC to Compactlogix for 7 sites $47,151 $48,087 $30,686 $125,923 OIT upgrade (3 new OITs and 3 sites need programming) $4,285 $7,587 $1,608 $13,480 Security VPN configuration as- needed $805 $1,200 $0 1 $2,005 Wireless Cellular modem (5 sites) $2,875 $1,344 $2,900 $7,119 Virtualization Services (2) and Shared Storage $0 $4,320 $0 $4,320 Virtualization $0 0 $2,880 $2,880 Disaster Recovery of Stored Data $0 $1,440 $0 $1,440 Wonderware Pure Tag Server Configuration $50,600 $10,800 $0 $61,400 Upgrade existing Intouch HMI screens, allow for up to 1,000 hours $0 $140,000 $0 $140,000 of programming Total (Including cost of hardware and 8% sales tax) $367,024 As- Needed Services Regular Hourly Rate Regular Minimum Hours After -Hours Hourly Rate* After -Hours Minimum Hours Materials Charge ** $160 4 hr(s) $240 4 hr(s) 15% 11 -20 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Delta Systems Engineering Inc. Page C -1 11 -21 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self - insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Delta Systems Engineering Inc. Page C -2 11 -22 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non - compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self- insured Retentions. Any self- insured retentions must be declared to and approved by City. City reserves the right to require that self- insured retentions be eliminated, lowered, or replaced by a deductible. Self - insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non - Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own Delta Systems Engineering Inc. Page C -3 11 -23 judgment may be necessary for its proper protection and prosecution of the Work. Delta Systems Engineering Inc. Page C -4 11 -24