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HomeMy WebLinkAbout01-05-2016 Item 06 - Emerson Processing - Maintenance and Support Contract Extension Meeting Date: 1/5/2016 FROM: Derek Johnson, Interim Finance & Information Technology Director Prepared By: Steve Schmidt, Information Technology Manager SUBJECT: EMERSON PROCESSING – MAINTENANCE AND SUPPORT CONTRACT EXTENSION RECOMMENDATION Approve an extension of a maintenance and support contract agreement with Emerson Process Management for two years in the amount of $64,050 and authorize the Mayor to execute the agreement. Background The Utilities Department utilizes complex, computerized supervisory control and data acquisition systems (SCADA) to operate and monitor processes in the water and wastewater treatment plants, water distribution systems and wastewater collection systems. SCADA is used to control the pumps and water tank levels for water distribution and controls the sewage lift stations in the wastewater collection system as well as critical processes at both the water treatment plant and the wastewater reclamation facilities. The system was installed by City staff beginning in the late 1980's utilizing Bristol Babcock equipment which is provided and serviced exclusively by Emerson Processing. The Utilities Department depends upon this equipment to meet State mandated requirements of its critical complex systems. The proposed two-year maintenance agreement extension (Attachment A) will provide on-going maintenance for all Bristol Babcock equipment as well as scheduled and non-scheduled technical support. It also provides discounted labor rates for any additional services not falling under the scope of the agreement. Emerson Process Management is the sole provider of maintenance services and support for Bristol Babcock SCADA equipment, which is currently in use throughout the Utilities Department and has been for many years. As such, Emerson is very familiar with the City’s complex SCADA system. 6 Packet Pg. 14 Future SCADA Upgrade Shortly, the Utilities Department will be seeking Council approval to release a Request for Proposals (RFP) to begin the process of upgrading the City’s aging SCADA systems in the Water Reclamation Facility, Water Distribution System and Whale Rock Reservoir. This project was included in the CIP for 2015-2016. These will be phased projects, which will begin next year. This project as well as future projects will ultimately replace all of the remaining proprietary Bristol Babcock equipment with an open architecture system which can be serviced by several vendors through a competitively bid process. CONCURRENCES The Utilities Department staff has reviewed this report and concurs with the recommendation. FISCAL IMPACT Total cost for this two year maintenance agreement is $64,050 (Attachment B). Funding is available in the Network Services contract services operating budget 25300-7227, as shown in the graph below. The remaining funds will be used to fund emergency support that falls outside the agreement. Funding Source Amount Network Services–Emerson Maintenance Contract Services Account #25300-7227 $68,400 Emerson Process Management Solutions Inc. two-year SCADA agreement $64,050 Balance $4,350 ALTERNATIVES Issue an RFP for SCADA maintenance services. This is not recommended. At the present time, Emerson Processing is the only vendor that can provide services to the City’s Bristol Babcock proprietary equipment. Attachments: a a - Emerson Process Proposal b b - Agreement - Emerson Process Management 6 Packet Pg. 15 Support and Services Contract Page 1 of 10 Offer No: WAM15080626R1 August 19, 2015 Steve Schmidt City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401-3249 Subject: 2015 – 2017 Software Support and Services Agreement Renewal Emerson Process Management Power & Water Solutions, Inc. Offer No. WAM15080626R1 Dear Mr. Jones, Emerson Process Management Power & Water Solutions, Inc. is pleased to submit this offer to City of San Luis Obispo for 2015 - 2017 Software Support and Services. The agreement will cover the period November 01, 2015 to October 31, 2017 and is subject to attached Support and Services Agreement. If you have any questions or require additional information please contact Cathi Bradley at 760- 405-7431. Sincerely, Josue Salazar /Cathi Bradley Emerson Process Management Power & Water Solutions, Inc. Attachments: Emerson Hardware and Software Support and Services Agreement for City of San Luis Obispo Emerson Process Management Power & Water Solutions, Inc. 200 Beta Drive Pittsburgh, PA 15238 6.a Packet Pg. 16 At t a c h m e n t : a - E m e r s o n P r o c e s s P r o p o s a l ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Support and Services Contract Page 2 of 10 Offer No: WAM15080626R1 Software Support and Services Contract This Contract, entered into as of this 1st day of November, 2015 between Emerson Process Management Power & Water Solutions, Inc., located at 200 Beta Drive, Pittsburgh, PA 15238 (hereinafter referred to as "Emerson"), and City of San Luis Obispo (hereinafter referred to as “Purchaser”). WITNESSETH In consideration of the premises, the parties hereto agree as follows: I. Scope of Work Emerson will sell to the Purchaser and Purchaser will buy from Emerson the Software Support and/or Services as set forth in Emerson’s offer WAM15080626R1 dated August 19, 2015, and Schedule A (attached hereto). II Definitions “Software Support” is defined as assistance rendered to the Purchaser’s personnel in the installation, configuration or operation of the Software, via telephone, email, fax or other electronic services. “Updates” copies of new releases, upgrades and patches to The Software which are released by Emerson during the period covered by this Contract. “The Software” the software that is licensed to the Purchaser at the commencement of this Contract. A list of The Software covered by this Contract is attached as Schedule A. “On Site Software Support” services beyond Software Support that require the presence of Emerson personnel at the Purchaser’s location. “Equipment” The equipment covered by this Contract as set forth in Schedule A. “Services” The services including maintenance services covered by this Contract as set forth in Schedule A. “Commencement Date” The date this Contract is entered into as set forth above or the date Emerson accepts a purchase order for the work to be performed under this Contract. III. Price The Contract price is $64,050.00. IV. Terms of Payment Emerson shall invoice Purchaser for installment Contract price within thirty (30) days from the date of this Contract. For subsequent years, the invoices for annual payments will be issued on the Contract renewal date. Payment(s) is/are due and payable net thirty (30) days from the date of each invoice. In the event “On Site Software Support” or onsite Services are not included in the Contract price then the price shall be agreed upon either before the work is performed, or if performed on a time and material basis, in accordance with Emerson’s current published price policy in effect, plus travel and living expenses. Emerson will invoice the Purchaser for the labor and material as required. When Service is provided on a per diem basis, invoices shall be rendered upon completion of the Services and payment of per diem charges, plus travel and living expenses shall be due net thirty (30) days from the date of invoice at the price in effect when the services are provided. V. Termination The initial term of this Contract shall be for one (1) year from the Commencement Date. Thereafter, this Contract can be renewed through Emerson. Such renewals must be in place thirty (30) days prior to the expiration date of this Contract to ensure continuous maintenance support without lapse. Within sixty (60) days prior to the above date(s) Emerson will provide a price for the extension of the Contract including any revisions to the Software and/or Equipment list. This Contract may be terminated for convenience by either party, provided thirty (30) days advance written notice of termination is given and upon payment to Emerson of reasonable and proper termination charges, including but not limited to all costs identified in this Contract which have been incurred up to the date of notice of termination. Payment shall be made within thirty (30) days from date of invoice. This Contract may be terminated by Emerson upon written notice if it determines that Purchaser changes, additions, deletions, or misuse or misapplication of the Equipment have degraded the performance of the specified Equipment or Software. In the event Purchaser or Emerson commits a material breach of its undertaking so as to prevent completion of this Contract and thereafter fails on not less than thirty (30) days written notice to take steps to remedy such breach, the other party may, by written notice, terminate this Contract and recoveries of Purchaser and Emerson shall be determined by mutual agreement. 6.a Packet Pg. 17 At t a c h m e n t : a - E m e r s o n P r o c e s s P r o p o s a l ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Support and Services Contract Page 3 of 10 Offer No: WAM15080626R1 In the event that the Purchaser’s equipment or software is altered, modified, changed, or, if any equipment or software is added or deleted, or moved within the premises, this Contract may be modified or terminated at Emerson’s option. If, at any time, any such changes or attachments create a safety hazard, or interfere with the normal and satisfactory operation or maintenance of the Equipment, Emerson may, upon written notice to the Purchaser, require that such safety hazard or interference be promptly corrected at the Purchaser’s expense. Emerson’s continued maintenance of the Equipment and/or Software, which has been changed or, to which attachments have been made, does not constitute an approval of the change or attachment and at Emerson’s option may be removed from the Equipment or Software listed in Schedule “A.” VI. Taxes The price does not include any federal, state, or local property, license, privilege, sales, use, import duties, tariffs, fees, imposts, excise, turnover, added value, gross receipt, gross wages or similar taxes now or hereafter applicable in any manner to this transaction. Purchaser agrees to reimburse Emerson for any such taxes which Emerson is required to pay upon submission of Emerson invoice. VII. Force Majeure Emerson will not be liable for failure or delay in performance resulting from any cause beyond its reasonable control and for acts of God, the act or failure to act of Purchaser’s customer, or other contractors. In the event of such delay, the time for performance/delivery will be extended by a period of time reasonably necessary to overcome the effect of the delay. VIII. Warranties 1. Software Support Emerson warrants to the Purchaser that the disk(s) on which the Updates are recorded is (are) free from defects in materials and workmanship under normal use and service for a period of ninety days from date of delivery. The Updates and any accompanying written materials (including instructions for use) are provided "as is" without warranty of any kind. Further, Emerson does not warrant, guarantee, or make any representations regarding the use, or the results of the use, of the Updates, The Software, or written materials. The entire risk as to the results and performance of Updates and The Software is assumed by the Purchaser. Unless stated otherwise herein, third party software/ equipment shall be warranted and remedied on a pass through basis in the same manner and for the same period and extent provided by the original software/ equipment manufacturer. Unless otherwise provided within this Contract, there is no warranty of any kind included hereunder with respect to The Software. Applications software programs not provided by Emerson are not covered under this warranty. Problems related to applications software programs provided by Emerson, including, but not limited to, problems caused by operator errors or lack of security procedures, virus related problems, unqualified file deletions or modifications, or lack of proper observance of system backup file maintenance are not covered under the warranty scope. If this Contract includes On Site Software Support Services, Emerson warrants that the Services provided will reflect competent knowledge and judgment. The warranty period shall expire twelve (12) months from completion of the Service. In the case of a nonconformity in the warranty set forth herein above, and if Emerson is notified in writing of such nonconformity during the applicable warranty period, it shall be corrected by performance of the nonconforming portion of the Service. If such remedies are impracticable, Emerson may refund the purchase price for the nonconforming Service. 2. Equipment and Services Emerson warrants that during the term of this Contract, the Equipment listed in Schedule “A” will be free from defects in materials or workmanship under normal use and care and Services provided under this Contract will be performed by trained personnel using proper equipment and instrumentation as applicable for the particular Service provided. If Purchaser discovers any such warranty defect(s) and such defect(s) is/are covered under the provisions established in Schedule ”A”, purchaser may notify Emerson of the alleged defect(s) during the term of this Contract or the applicable warranty period as set forth below, Emerson shall, at its option, correct any errors that are found by Emerson in the Services or repair or replace F.O.B. point of manufacture that portion of the Equipment found by Emerson to be defective. Equipment repaired or replaced by Emerson pursuant to this Contract is warranted for a period extending to the end of the term of this Contract or for ninety (90) days from the date of delivery of repaired or replaced Equipment, whichever is longer. Any Service provided pursuant to this 6.a Packet Pg. 18 At t a c h m e n t : a - E m e r s o n P r o c e s s P r o p o s a l ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Support and Services Contract Page 4 of 10 Offer No: WAM15080626R1 Contract is warranted to the end of the term of this Contract or for ninety (90) days from completion the Service, whichever is longer. All replacements or repairs necessitated by any causes not the fault of Emerson, including but not limited to, unsuitable power sources or environmental conditions, lightning, fire, flood, earthquakes, vandalism, accident, or misuse, improper installation, unauthorized modification or repair, or improper storage or handling by Purchaser or any third party, are not covered by this warranty, and shall be at the Purchaser’s expense. Emerson shall not be obligated to pay any costs or charges incurred by the Purchaser or any other party except as may be agreed upon in writing in advance by Emerson. Materials and/or Services required due to actual environmental or process conditions beyond the specifications of the Equipment performance capabilities are not part of the warranty scope. Emerson will invoice for Services provided per the Purchaser’s request, which are beyond the scope of warranty coverage hereunder using its then-current pricing policy. Payments for such invoices shall be made within thirty days of rendering of such Services and expenses. Materials and/or Services required for system changes and additional training are not part of the scope of the warranty services. THE WARRANTIES SET FORTH IN THIS CONTRACT 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 OF TRADE). THE REMEDIES SET FORTH, FOR THE TIME AND IN THE MANNER PROVIDED ABOVE, SHALL BE PURCHASER’S EXCLUSIVE REMEDIES FOR FAILURE OF EMERSON TO MEET ITS WARRANTY OBLIGATIONS, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE. IX. Limitation of Liability EMERSON SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE. EMERSON SHALL NOT BE LIABLE FOR FAILURES, REPAIRS OR DOWN TIME ON OR CAUSED BY EQUIPMENT OR SOFTWARE COVERED IN THIS CONTRACT. THE REMEDIES SET FORTH IN THIS CONTRACT ARE EXCLUSIVE AND UNDER NO THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER WARRANTY OR OTHERWISE WILL EITHER EMERSON OR ITS SUPPLIERS OF ANY TIER: (A) BE LIABLE FOR ANY INDIRECT, INCIDENTIAL OR CONSEQUENTIAL DAMAGE WHATSOEVER; DAMAGE TO OR LOSS OF PROPERTY OR EQUIPMENT; LOSS OF PROFITS OR REVENUE; LOSS OF USE OF PURCHASER’S PROPERTY, EQUIPMENT OR POWER SYSTEM; INCREASED COSTS OF ANY KIND, INCLUDING BUT NOT LIMITED TO CAPITAL COST, FUEL COST OR CLAIMS OF CUSTOMERS OF PURCHASER; AND (B) BE LIABLE FOR AN AGGREGATE LIABILITY EXCEEDING THE TOTAL PRICE PAID TO EMERSON UNDER THIS CONTRACT. THIS ARTICLE SHALL PREVAIL OVER ANY PROVISIONS IN THIS CONTRACT. X. Governing Law This Contract shall be governed by the laws of the State of Missouri, without regard to its choice or conflict of law. XI. Survival The Limitation of Liability and Intellectual Property Rights provisions shall survive termination, expiration or cancellation of this Contract or the purchase order to which these terms and conditions apply. No amendment, modification or alteration of these terms and conditions shall be binding unless the same shall be in writing and duly executed by the parties. If any term or condition is under any circumstances deemed invalid, the remaining terms and conditions shall be construed with the invalid provision(s) deleted. XII. Intellectual Property Rights/ Software License Emerson retains for itself all of its intellectual property rights in and to any Emerson product, software and supporting documentation furnished hereunder. The Updates and The Software are only licensed for installation on that equipment on which The Software was installed at the commencement of this Contract. Updates may be transmitted to the Purchaser via email, on physical media or downloaded from Emerson’s web site, at the discretion of Emerson. The Purchaser is responsible for the installation of all Updates supplied under this Contract. The Updates are subject to the terms and conditions set forth in Emerson’s applicable standard software license agreements for The Software. Any Updates and other information provided by Emerson under this Contract are considered standard offerings of Emerson, and Emerson and/or any applicable third party supplier to Emerson shall retain all rights of ownership in their respective products included in such Updates or other information. Notwithstanding any other provisions herein to the contrary, Emerson or applicable third party owner shall retain all exclusive rights, interest and title to its respective firmware, The Software and Updates. Purchaser’s use of the firmware, Updates and The Software shall be governed exclusively by Emerson’s and/or third party o wner’s applicable license terms. 6.a Packet Pg. 19 At t a c h m e n t : a - E m e r s o n P r o c e s s P r o p o s a l ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Support and Services Contract Page 5 of 10 Offer No: WAM15080626R1 Information marked proprietary shall be disclosed in confidence on a need to know basis on the condition that it is not to be reproduced, copied or used for any other purpose than the purpose for which it is provided and shall not be disclosed to third parties without the written consent of Emerson. XIII. Changes to Supply In the event the Purchaser or Emerson request changes in the scope of supply, Emerson shall notify Purchaser of the effect on price, delivery, warranty, equipment performance or any other obligations assumed by Emerson under this Contract. Emerson will initiate work on any such changes upon receipt of an acceptable written change order. All change orders shall indicate the adjustment to the Emerson scope of supply, the contract price and other relevant terms and conditions of the Contract. XIV. Facilities and Access to Equipment If this Contract includes Services to be performed on Purchaser’s site, the Purchaser will furnish at no cost to Emerson suitable working space, storage space, adequate telephone, light, ventilation, regulated electric power, and outlets for testing purposes. These facilities will be within a reasonable distance from the Equipment covered by this Contract. Emerson shall have full and free access to Emerson-provided Equipment in order to provide the on- site Services provided under this Contract. Purchaser will identify person(s) who will interface with Emerson under the terms of this Contract. Any maintenance or repair services performed on the Emerson-provided Equipment by unauthorized personnel resulting in additional material or corrective support service requirements by Emerson will be invoiced at applicable time and material rates and conditions of service then in effect. XV. Emerson Personnel Emerson reserves the right to determine the qualifications of and the source of Emerson personnel required to fulfill its obligations under this Contract. Emerson personnel used to fulfill its obligations under this agreement shall be familiar with the Purchaser’s equipment and facilities and will be mutually agreed. Unless agreed upon otherwise, the Parties agree that the Purchaser may not hire a Emerson Field Service Engineer/Technician for two years following termination of this Contract. XVI. Exclusions Excluded from these contracts are obsolete software application programs and parts or as otherwise stipulated in Schedule “A” hereunder. XVII. Scope Changes All Emerson services or equipment requested by Purchaser that are not within the scope of this Contract shall be reimbursed by Purchaser in accordance with the then current Emerson published rates including, if applicable, travel and living expenses. XVII. Assignment Clause Neither Emerson nor Purchaser may assign this Contract in whole or in part without the prior written consent of the other Party. XIX. Entire Agreement This Contract, including the documents incorporated by reference herein and attachments hereto constitute the entire agreement between the parties. The terms hereof may not be modified or amended except in writing signed by the authorized representative of both Purchaser and Emerson. 6.a Packet Pg. 20 At t a c h m e n t : a - E m e r s o n P r o c e s s P r o p o s a l ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Support and Services Contract Page 6 of 10 Offer No: WAM15080626R1 IN WITNESS WHEREOF, the parties hereto have executed this Contract by their authorized representatives as of the date first set forth above. CITY OF SAN LUIS OBISPO EMERSON PROCESS MANAGEMENT POWER & WATER SOLUTIONS, INC. BY: ______________________________ BY: ______________________________ Title:_____________________________ Title:______________________________ Date: _____________________________ Date:______________________________ Attachments 1. Emerson Offer # WAM15080626R1 dated August 19, 2015 2. Schedule A 6.a Packet Pg. 21 At t a c h m e n t : a - E m e r s o n P r o c e s s P r o p o s a l ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Support and Services Contract Page 7 of 10 Offer No: WAM15080626R1 SCHEDULE “A” Hardware & Software List For: San Luis Obispo – Water Reuse, Water Distribution, Water Treatment Plant & Wastewater Collection System Hardware Item Description Qty Location Area Status 1 3330 10 Water Reclamation - Obsolete 2 CW Redundant 2 Water Reclamation - Active 3 CW PAC - 8 Slot Chassis 2 Water Reclamation - Active 4 CW PAC – PSSM 2 Water Reclamation - Active 5 CW PAC – CPU w/ Ethernet 2 Water Reclamation - Active 6 CW PAC – I/O Boards 12 Water Reclamation - Active 7 CWM – 4 Slot Chassis 1 Water Reclamation - Active 8 CWM – PSSM 1 Water Reclamation - Active 9 CWM –Ethernet CPU 1 Water Reclamation - Active 10 CWM –Mixed I/O, 6DI/O, 4AI, 2HSC, 1AO with LED’s 1 Water Reclamation - Active 11 Internal 120VAC to 24VDC Power Supply with 7AH backup 1 Water Reclamation - Active 12 3330 4 Water Distribution - Obsolete 13 3305 2 Water Distribution - Obsolete 14 CWM – 3 Slot Chassis 1 Water Distribution - Active 15 CWM – PSSM 1 Water Distribution - Active 16 CWM –33MHz CPU 1 Water Distribution - Active 17 CWM – Mixed I/O board; 12DI, 4DO 1 Water Distribution - Active 18 3330 4 Whale Rock - Obsolete 19 330 14 Water Treatment Plant - Obsolete 20 RIO3331 17 Water Treatment Plant - Obsolete 21 NIB (389510-01-7) 16 Water Treatment Plant - Obsolete 22 3330 (Redundant) 1 Waste Water Collection - Obsolete 23 3305 10 Waste Water Collection - Obsolete 24 CWM – 8 Slot Chassis 1 Waste Water Collection - Active 6.a Packet Pg. 22 At t a c h m e n t : a - E m e r s o n P r o c e s s P r o p o s a l ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Support and Services Contract Page 8 of 10 Offer No: WAM15080626R1 Hard ware Item Description Qty Location Area Status 25 CWM – PSSM 1 Waste Water Collection - Active 26 CWM –Ethernet CPU 1 Waste Water Collection - Active 27 CWM –Keypad display 4 line x 20 character 1 Waste Water Collection - Active 28 CWM –Remote 16 pt. DI module 1 Waste Water Collection - Active 29 CWM –Remote 16 pt. DO module 1 Waste Water Collection - Active 30 CWM –Remote 4 pt. AO module 1 Waste Water Collection - Active 31 CWM –Remote 8 pt. DI remote terminal block 2 Waste Water Collection - Active 32 CWM –Remote 8 pt. DO remote terminal block 2 Waste Water Collection - Active 33 CWM –Remote 2pt AO remote terminal block 2 Waste Water Collection - Active Software Item Description QTY Location Area Status 1 Network Edition 1 Water Reclamation - Active 2 Workbench 1 Water Reclamation - Active 3 Network Edition 1 Water Distribution - Active 4 Workbench 1 Water Distribution - Active 5 Network Edition 4 Wastewater Collection - Active 6 Workbench 4 Wastewater Collection - Active 7 OPC Server – Replaced with Object server 2 Wastewater Collection - Active 8 Network Edition 2 Water Treatment Plant - Active 9 Workbench 2 Water Treatment Plant - Active 10 OPC Server – Replaced with Object server 2 Water Treatment Plant - Active 1. Scope a. Emerson will provide Services for the Equipment listed in this Schedule “A” in accordance with the clauses set forth in this Contract. 2. Software Support a. Emerson shall provide Software Updates which are release by Emerson during the period covered by this agreement. Such updates are only licensed for installation on that equipment on which Software was 6.a Packet Pg. 23 At t a c h m e n t : a - E m e r s o n P r o c e s s P r o p o s a l ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Support and Services Contract Page 9 of 10 Offer No: WAM15080626R1 installed at the commencement of this agreement. Updates will be transmitted to the customer via email, physical media or downloaded from Emerson web site. The customer is responsible for installation of all updates supplied under this agreement. 3. Unscheduled Corrective Maintenance a. Unscheduled corrective maintenance service, for the Equipment listed in Schedule “A”, is included at no additional charge, and is limited to a maximum of five (5) visits per annum, each visit not to exceed one (1) man-day, with each man-day being a maximum of 8 man-hours or any portion thereof. Unscheduled corrective maintenance services are available during the normal working hours of 8:00 A.M. to 4:30 P.M. local time, Monday through Friday, with a response time of next business day (via phone or on site) from notification by the Purchaser. Emergency services performed at the Purchaser’s request outside of normal working hours shall be provided at Emerson’s then current premium rates, less the published price for contract service if performed during normal working hours (If the maximum contract service time as set forth herein is fully utilized, then such adjustment does not apply). The Purchaser shall pay expenses and travel time in conjunction with such emergency service provided outside of normal working hours. b. Any services in excess of the limitations noted within this Contract shall be billed in accordance with the Emerson published pricing policy after obtaining a written directive from the Purchaser to receive such services beyond the covered services. 4. Equipment Replacement/Repair/Troubleshooting a. The Purchaser must ship the defective Equipment to Emerson’s Local Service Center or to Emerson’s Watertown Repair Facilities. All instruments listed in Schedule “A”, returned for repair will be restored to original mechanical and electrical operation specification at no charge. b. Unserviceable parts for Active Equipment listed in Schedule “A” will be replaced by new parts, or, at Emerson’s option, by parts equivalent to new in performance. Such replacement parts will be furnished AS IS, on an exchange basis. Parts that have been removed and replaced become the property of Emerson. This Contract does not cover expendable supply items such as printer ribbons, paper, paper tape, magnetic tape and diskettes, and paint or refinishing of the subject Equipment. If, in the joint opinion of Emerson and the Purchaser, any Equipment not within warranty of this Contract, and still within its operating performance specifications, is in need of factory reconditioning, an estimate of such costs will be submitted to the Purchaser for approval and payment. c. It is agreed that if Emerson is required to make replacements or repairs caused by negligence or misuse of Equipment, or by any other reason of any sort beyond Emerson’s direct control, Emerson reserves the right to charge the Purchaser for labor and material as required. These charges would be in accordance with Emerson’s current published price policy in effect when the work is performed. This Contract does not cover or include planning, installing, testing and documenting of expansions and modification s requested by the Purchaser, or maintenance services or parts required to maintain accessories, attachments, machines or devices not listed in Schedule “A”. d. For equipment that is discontinued or obsolete, the maintenance support will be on a reasonable effort basis and any resulting unserviceable discontinued/obsolete hardware is excluded from this agreement . e. For equipment not manufactured by Emerson (and listed in Schedule “A”), Emerson will provide diagnostic support services. Any repair and replacement of equipment manufactured by others is not included hereunder. f. Requests for Emerson to conduct safety tests, to install new attachments or additional controls, or to make replacements with equipment of a different design, regardless of reason, are not incl uded under this Contract. 6.a Packet Pg. 24 At t a c h m e n t : a - E m e r s o n P r o c e s s P r o p o s a l ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Support and Services Contract Page 10 of 10 Offer No: WAM15080626R1 5. Additional Labor Services a. Support services for application hardware and software can be procured on an as needed basis using the following pricing guidelines. Such support services will be during normal working hours as mut ually coordinated. b. Such services can include on-site update and upgrade support of application hardware and software trouble shooting, training, system enhancements etc. Scope of services can be predefined to estimate the time required or alternately services may be procured on a time and material basis. Description Rate Service Engineer - Standard Time (hour) $ 157.00 Service Engineer – Overtime (hour) $ 303.00 Service Engineer - Sunday & Holiday (hour) $ 377.00 Travel Time (hour) $ 131.00 Mileage (mile) $ 0.63 Expenses Cost + 10% 6.a Packet Pg. 25 At t a c h m e n t : a - E m e r s o n P r o c e s s P r o p o s a l ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) AGREEMENT THIS AGREEMENT is made and entered into in the City of San Luis Obispo on this _____________day of ____________________________________, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and EMERSON PROCESS MANAGEMENT POWER AND WATER SOLUTIONS, INC,. a Delaware corporation, hereinafter referred to as Contractor. W I T N E S S E T H: WHEREAS, on the City wants SCADA Maintenance and Support Services; and WHEREAS, Contractor is qualified to perform this type of service and has submitted a proposal to do so which has been accepted by the City. NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows: 1. TERM. The term of this Agreement shall be from the date this Agreement is made and entered, as first written above, until contract expiration. 2. CITY'S OBLIGATIONS. For providing services as specified in this agreement, City will pay, and Contractor shall receive, compensation in a total sum not to exceed $64,050. 4. CONTRACTOR’S OBLIGATIONS. For and in consideration of the payments and agreements hereinbefore mentioned to be made and performed by City, Contractor agrees with City provide all specified services as described in Attachment A (Contractor’s Proposal and Schedule A) attached hereto and incorporated into this Agreement by reference. Contractor further agrees to the contract and performance terms as set forth in Attachment B attached hereto and incorporated into this Agreement by reference. 5. AMENDMENTS. Any amendment, modification or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the City Administrative Officer. 6. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and s pecifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. 6.b Packet Pg. 26 At t a c h m e n t : b - A g r e e m e n t - E m e r s o n P r o c e s s M a n a g e m e n t ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Page 2 7. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: City City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 Contractor Emerson Process Management Power and Water Solutions, Inc. Attn: Mr. Kyle Tracy 200 Beta Drive Pittsburgh, PA 15238 8. AUTHORITY TO EXECUTE AGREEMENT. Both City and Contractor do covenant that each individual executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. ATTEST: CITY OF SAN LUIS OBISPO: ________________________________ By: _____________________________________ City Clerk Jan Howell Marx, Mayor APPROVED AS TO FORM: CONTRACTOR: ________________________________ By: _____________________________________ City Attorney Emerson Process Management Power and Water Solutions, Inc. 6.b Packet Pg. 27 At t a c h m e n t : b - A g r e e m e n t - E m e r s o n P r o c e s s M a n a g e m e n t ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Page 3 City of San Luis Obispo – General Terms and Conditions 1. Business Tax. The Contractor must have a valid City of San Luis Obispo business tax certificate before execution of the contract. Additional information regarding the City's business tax program may be obtained by calling (805) 781-7134. 2. Ability to Perform. The Contractor warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in compliance with any and all federal, state, county, city, and special district laws, ordinances, and regulations. 3. Laws to be Observed. The Contractor shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws and county and City of San Luis Obispo ordinances, regulations and adopted codes during its performance of the work. 4. Payment of Taxes. The contract prices shall include full compensation for all taxes that the Contractor is required to pay. 5. Permits and Licenses. The Contractor shall procure all permits and licenses, pay all charges and fees, and give all notices necessary. 6. Safety Provisions. The Contractor shall conform to the rules and regulations pertaining to safety established by OSHA and the California Division of Industrial Safety. 7. Public and Employee Safety. Whenever the Contractor's operations create a condition hazardous to the public or City employees, it shall, at its expense and without cost to the City, furnish, erect and maintain such fences, temporary railings, barricades, lights, signs and other devices and take such other protective measures as are necessary to prevent accidents or damage or injury to the public and employees. 8. Preservation of City Property. The Contractor shall provide and install suitable safeguards, approved by the City, to protect City property from injury or damage. If City property is injured or damaged resulting from the Contractor's operations, it shall be replaced or restored at the Contractor's expense. The facilities shall be replaced or restored to a condition as good as when the Contractor began work. 9. Immigration Act of 1986. The Contractor warrants on behalf of itself and all sub- Contractors engaged for the performance of this work that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder. 10. Contractor Non-Discrimination. In the performance of this work, the Contractor agrees that it will not engage in, nor permit such sub- Contractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons. 11. Work Delays. Should the Contractor be obstructed or delayed in the work required to be done hereunder by changes in the work or by any default, act, or omission of the City, or by strikes, fire, earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of defense or war programs, then the time of completion may, at the City's sole option, be extended for such periods as may be agreed upon by the City and the Contractor. 12. Payment Terms. The City's payment terms are 30 days from the receipt of an original 6.b Packet Pg. 28 At t a c h m e n t : b - A g r e e m e n t - E m e r s o n P r o c e s s M a n a g e m e n t ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Page 4 invoice and acceptance by the City of the materials, supplies, equipment or services provided by the Contractor (Net 30). 13. Inspection. The Contractor shall furnish City with every reasonable opportunity for City to ascertain that the services of the Contractor are being performed in accordance with the requirements and intentions of this contract. All work done and all materials furnished, if any, shall be subject to the City's inspection and approval. The inspection of such work shall not relieve Contractor of any of its obligations to fulfill its contract requirements. 14. Audit. The City shall have the option of inspecting and/or auditing all records and other written materials used by Contractor in preparing its invoices to City as a condition precedent to any payment to Contractor. 15. Interests of Contractor. The Contractor covenants that it presently has no interest, and shall not acquire any interest—direct, indirect or otherwise—that would conflict in any manner or degree with the performance of the work hereunder. The Contractor further covenants that, in the performance of this work, no sub-Contractor or person having such an interest shall be employed. The Contractor certifies that no one who has or will have any financial interest in performing this work is an officer or employee of the City. It is hereby expressly agreed that, in the performance of the work hereunder, the Contractor shall at all times be deemed an independent Contractor and not an agent or employee of the City. 16. Indemnification for Professional Liability. To the fullest extent permitted by law, the Contractor shall indemnify, protect, defend and hold harmless the City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all losses, liabilities, damages, costs and expenses, including attorney’s fees and cost which arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. 17. Contract Assignment. The Contractor shall not assign, transfer, convey or otherwise dispose of the contract, or its right, title or interest, or its power to execute such a contract to any individual or business entity of any kind without the previous written consent of the City. 18. Termination. If, during the term of the contract, the City determines that the Contractor is not faithfully abiding by any term or condition cont ained herein, the City may notify the Contractor in writing of such defect or failure to perform. This notice must give the Contractor a 10 (ten) calendar day notice of time thereafter in which to perform said work or cure the deficiency. If the Contractor has not performed the work or cured the deficiency within the ten days specified in the notice, such shall constitute a breach of the contract and the City may terminate the contract immediately by written notice to the Contractor to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights under the contract except, however, any and all obligations of the Contractor's surety shall remain in full force and effect, and shall not be extinguished, reduced, or in any manner waived by the termination thereof. In said event, the Contractor shall be entitled to the reasonable value of its services performed from the beginning date in which the breach occurs up to the day it received the City's Notice of Termination, minus any offset from such payment representing the City's damages from such breach. "Reasonable value" includes fees or charges for goods or services as of the last milestone or task satisfactorily delivered or completed by the 6.b Packet Pg. 29 At t a c h m e n t : b - A g r e e m e n t - E m e r s o n P r o c e s s M a n a g e m e n t ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Page 5 Contractor as may be set forth in the Proposal; compensation for any other work, services or goods performed or provided by the Contractor shall be based solely on the City's assessment of the value of the work-in-progress in completing the overall workscope. The City reserves the right to delay any such payment until completion or confirmed abandonment of the project, as may be determined in the City's sole discretion, so as to permit a full and complete accounting of costs. In no event, however, shall the Contractor be entitled to receive in excess of the compensation quoted in its proposal. 19. Ownership of Materials. All original drawings, plan documents and other materials prepared by or in possession of the Contractor as part of the work or services under these specifications shall become the permanent property of the City, and shall be delivered to the City upon demand. 20. Release of Reports and Information. Any reports, information, data, or other material given to, prepared by or assembled by the Contractor as part of the work or services under these specifications shall be the property of City and shall not be made available to any individual or organization by the Contractor without the prior written approval of the City. 21. Copies of Reports and Information. If the City requests additional copies of reports, drawings, specifications, or any other material in addition to what the Contractor is required to furnish in limited quantities as part of the work or services under these specifications, the Contractor shall provide such additional copies as are requested, and City shall compensate the Contractor for the costs of duplicating of such copies at the Contractor's direct expense. 22. Required Deliverable Products. The Contractor will be required to provide: 2 hard copies of the draft or electronic copy (Adobe Acrobat format) 2 hard copies of the final project report, and 1 electronic copy (Acrobat Adobe format) of the final report. City staff will review any documents or materials provided by the Contractor and, where necessary, the Contractor will be required to respond to staff comments and make such changes as deemed appropriate. Computer files must be on 3½", high-density, write-protected diskettes or CD’s formatted for use on IBM-compatible systems. Each diskette must be clearly labeled and have a printed copy of the directory. Alternatively, files may be emailed to the City. 23. Amendments. Any amendment, modification or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the City Engineer of the City. 24. Complete Agreement. These Purchase Order Conditions and Contractors proposal shall constitute the complete agreement between the parties hereto. No oral agreement, understanding or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding or representation be binding upon the parties hereto. 6.b Packet Pg. 30 At t a c h m e n t : b - A g r e e m e n t - E m e r s o n P r o c e s s M a n a g e m e n t ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Page 6 25. Insurance Requirements. The Contractor shall provide proof of insurance in the form, coverages and amounts specified in these conditions as a precondition to contract execution. The Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to p roperty which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or sub-Contractors. Minimum Scope of Insurance. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 20 10 Prior to 1993 or CG 20 10 07 04 with CG 20 37 10 01 or the exact equivalent as determined by the City). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobi le Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Errors and Omissions Liability insurance as appropriate to the Contractor's profession. Minimum Limits of Insurance. Contractor shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. 4. Errors and Omissions Liability: $1,000,000 per occurrence. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. 2. For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 6.b Packet Pg. 31 At t a c h m e n t : b - A g r e e m e n t - E m e r s o n P r o c e s s M a n a g e m e n t ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Page 7 3. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 4. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Verification of Coverage. Contractor shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage. Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by the City before work commences. 6.b Packet Pg. 32 At t a c h m e n t : b - A g r e e m e n t - E m e r s o n P r o c e s s M a n a g e m e n t ( 1 1 9 3 : E m e r s o n P r o c e s s i n g M a i n t e n a n c e a n d S u p p o r t C o n t r a c t E x t e n s i o n ) Page intentionally left blank.