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Contract - JIMNI Systems Inc - 2012-07-24AGREEMENT FOR REPLACING SUPERVISORY CONTROL AND DATA ACQUISITION (SCADA) JIMNI Systems, Inc. This Agreement is made and effective as of :� a , 2012, between the Costa Mesa Sanitary District, a sanitary district ( "District "), and JIMNI Systems, Inc., a California Corporation ( "Contractor "). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: Recitals, WHEREAS, the District has a supervisory control and data acquisition (SCADA) system at District pump stations; and WHEREAS, the SCADA system notifies District staff of high water and power outages at District pump stations; .and WHEREAS, the current SCADA system needs to be replaced; and WHEREAS, Contractor has submitted a proposal to replace the existing SCADA system by installing a new state of the art SCADA system; and WHEREAS, the District finds it in the best interest to enter into an agreement with said Contractor; and WHEREAS, the District desires to enter into an agreement with said Contractor. NOW, THEREFORE the parties hereto do hereby agree as follows: 1. TERM This Agreement shall commence on 2012, and shall remain and continue in effect until tasks described herein are completed as stated in the proposal dated July 11, 2012, unless sooner terminated pursuant to the provisions of this Agreement. 2. SERVICES Contractor shall perform the tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full. 1 3. PERFORMANCE Contractor shall, at all times, faithfully, competently and to the best of his /her /its ability, experience, and talent perform all tasks described herein. Contractor shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged , in providing similar services as are required of Contractor hereunder in meeting its obligations under this Agreement. 4. DISTRICT MANAGEMENT District's General Manager shall represent District in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by Contractor, but not including the authority to enlarge the Tasks to be Performed or change the compensation due to Contractor. The District Manager shall be authorized to act on District's behalf and to execute all necessary documents which enlarge the Tasks to be Performed or change Contractor's compensation, subject to Section 5 hereof. 5. PAYMENT (a) The District agrees to pay Contractor in accordance with the tasks as set forth in Exhibit A, attached hereto and incorporated herein by this reference as though set forth in full, upon completion of the task. This amount shall not exceed Sixty Two Thousand Eight Hundred Ninety Eight Dollars and Sixty Eight Cents ($62,898.68) for the total term of this Agreement unless additional payment is approved as provided in this Agreement. Said sum includes travel and other costs. (b) Contractor shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the District General Manager. Contractor shall be compensated for any additional services in the amounts and in the manner as agreed to by District General Manager and Contractor at the time District's written authorized is given to Contractor for the performance of said services. The District General Manager may approve additional work not to exceed ten percent (10 %) of the total contract sum. (d) Contractor will submit invoices upon task completion. Payment shall be made within thirty (30) days of receipt of each invoice as to all non - disputed fees. If the District disputes any of Contractor's fees, it shall give written notice to Contractor within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. K 6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE (a) The District may, at any time, for any reasons, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the Contractor at least ten (10) days prior written notice. Upon receipt of said notice, the Contractor shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the District suspends or terminates a portion of this Agreement, such suspension or termination shall not make voice or invalidate the remainder of this Agreement. (b) In the event this Agreement is terminated pursuant to this Section, the District shall pay to Contractor the actual value of the work performed up to the time of termination, provided that the work performed is of value to the District. Upon termination of the Agreement pursuant to this Section, the Contractor will submit an invoice to the District pursuant to Section 5. 7. DEFAULT OF CONTRACTOR (a) The Contractor's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Contractor is in default for cause under the terms of this Agreement, District shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Contractor. If such failure by the Contractor to make progress in the performance of work hereunder arises out of causes beyond the Contractor's control, and without fault of negligence of the Contractor, it shall not be considered a default. (b) If the District Manager or his /her delegate determines that the Contractor is in default in the performance of any of the terms or conditions of this Agreement, he /she shall cause to be served upon the Contractor a written notice of the default. The Contractor shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Contractor fails to cure its default within such period of time, the District shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. 8. OWNERSHIP OF DOCUMENTS (a) Contractor shall maintain complete and accurate records with respect to the professional services required by this Agreement and will produce the work product specified in Exhibit A and other such information required by District that relate to the performance of services under this Agreement. Contractor shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall provide free access to the representatives of District or its designees at reasonable times to such books and records; shall give District the right to examine and audit said books and records; shall permit District to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. (b) Upon completion, termination or suspension of this Agreement, all work produce reduced to any medium and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the District and may be used, reused or otherwise disposed of by the District without the permission of the Contractor. With respect to computer files, Contractor shall make available to the District, at the Contractor's office and upon reasonable written request by the District, the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files. 9. INDEMNIFICATION (a) Indemnification for Professional Liability. When the law establishes a professional standard of care for Contractor's. services, to the fullest extent permitted by law, Contractor shall indemnify, protect, defend and hold harmless District 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 costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Contractor, its officers, agents, employees or subcontractors (or any entity or individual that Contractor shall bear the . legal liability thereof) in the performance of professional services under this Agreement. (b) Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Contractor shall indemnify, defend and hold harmless District, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest, defense costs and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Contractor or by any individual or entity for which Contractor is legally liable, including, but not limited to, officers, agent, employees or subcontractors of Contractor. 4 10. INSURANCE Contractor shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit B attached to and part of this Agreement. Such coverage shall provide automotive, commercial general liability and professional error coverage, if appropriate. 11. INDEPENDENT CONTRACTOR (a) Contractor is and shall at all times remain as to the District a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Neither District nor any of its officers, employees, or agents shall have control over the conduct of Contractor or any of Contractor's officers, employees, or agents, except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the District. Contractor shall not incur or have the power to incur any debt, obligation, or liability whatever against District, or bind District in any manner. (b) No employee benefits shall be available to Contractor in connection with the performance of this Agreement. Except for the fees paid to Contractor as provided in the Agreement, District shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for District. District shall not be liable for compensation or indemnification to Contractor for injury or sickness arising out of performing services hereunder. 12. LEGAL RESPONSIBILITIES The Contractor shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Contractor shall at all times observe and comply with all such laws and regulations. The District, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Contractor to comply with this Section. 13. UNDUE INFLUENCE Contractor declares and warrants that no undue influence or pressure has been used against or in concert with any officer or employee of the Costa Mesa Sanitary District in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement or financial inducement. No officer or employee of the Costa Mesa Sanitary District will receive compensation, 5 directly or indirectly, from Contractor, or from any officer, employee or agent of Contractor, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the District to any and all remedies at law or in equity. 14. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member, officer, or employee of District, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during his /her tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or sub - agreement, or the proceed thereof, for work to be performed in connection with the Project performed under this Agreement. 15. RELEASE OF INFORMATION / CONFLICTS OF INTEREST (a) All information gained by Contractor in performance of this Agreement shall be considered confidential and shall not be released by Contractor without District's prior written authorization. Contractor, its officers, employees, agents or subcontractors, shall not without written authorization from the District Manager or unless requested by the District Counsel, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the District. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives District notice of such court order or subpoena. (b) Contractor shall promptly notify District should Contractor, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the District. District retains the right, but has no obligation, to represent Contractor and /or be present at any deposition, hearing, or similar proceeding. Contractor agrees to cooperate fully with District and to provide the opportunity to review any response to discovery requests provided by Contractor. However, District's right to review any such response does not imply or mean the right by District to control, direct, or rewrite said response. (c) Contractor covenants that neither he /she nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree .with the performance of their services hereunder. Contractor further covenants that in the performance of this Agreement, no person having such interest shall be employed by them as an officer, employee, agent or subcontractor. Contractor further covenants that Contractor has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and /or property M owner(s) and /or firm(s) and /or partnership(s) owning property in the District or the study area and further covenants and agrees that Contractor and /or its subcontractors shall provide no service or enter into any agreement or agreements with a /any developer(s) and /or property owner(s) and /or firm(s) and /or partnership(s) owning property in the District or the study area prior to the completion of the work under this Agreement. 16. NOTICES Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given by: (i) personal service, (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) mailing in the. United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice: To District: Costa Mesa Sanitary District 628 West 19th Street Costa Mesa, California 92627 Attn: Maintenance Supervisor To Contractor: JIMNI Systems, Inc. 11161 Jeffrey Road Irvine, CA 92602 Attn: Tony Gomez 17. ASSIGNMENT The Contractor shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, without prior written consent of the District.. Because of the personal nature of the services to be rendered pursuant to this Agreement, only Tony Gomez shall perform the services described in this Agreement. Tony Gomez may use assistants, under its direct supervision, to perform some of the services under this Agreement; however, all client contact and interaction regarding professional services shall be provided by Tony Gomez. Contractor shall provide District fourteen (14) day's notice prior to the departure of Tony Gomez from Contractor's employ. Should he /she leave Contractor's employ, the District shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this agreement, Contractor's sole compensation shall be payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the Board of Directors and the Contractor. 7 18. LICENSES At all times during the term of this Agreement, Contractor shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement. 19. GOVERNING LAW The District and Contractor understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the superior or federal district court with jurisdiction over the Costa Mesa Sanitary District. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 21. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL Contractor is bound by the contents of Exhibit A hereto and incorporated herein by this reference. In the event of conflict, the requirements of District's Request for Proposals and this Agreement shall take precedence over those contained in the Contractor's proposals. 22. MODIFICATION No modification to this Agreement shall be effective unless it is in writing and signed by authorized representatives of the parties hereto. 23. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this Agreement on behalf of Contractor warrants and represents that he /she has the authority to execute this Agreement on :3 behalf of the Contractor and has the authority to bind Contractor to the performance of its obligations hereunder. 24. INTERPRETATION In the event of conflict or inconsistency between this Agreement and any other document, including any proposal or Exhibit hereto, this Agreement shall control unless a contrary intent is clearly stated. 25. MODIFICATION This Agreement may not be modified orally but only in writing, signed by a person with authority to amend this Agreement. 26. BUSINESS LICENSE Contractor shall obtain a business license from the City of Costa Mesa unless legally exempt. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed this day and year first above written. COSTA MESA SANITARY DISTRICT JIMNI SYSTEMS INC General Manager S' nature ATTEST: e uty Clerk� J APPROVED AS TO FORM: District Counsel 9 .� Vj, �L Typed Name Title J1dMAhm—N—— I den Pump and Control Speciah & 11161 Jeffrey Road I Irvine, CA 92602 T (949) 770 -7654 1 F (949) 651 -6043 ESTIMATE Date Estimate # 7/11/2012 3509 Name / Address Job Name COSTA MESA SANITATION DISTRICT 628 W. 19TH ST. COSTA MESA, CA 92627 PO# Project AQUAVX UPGRADE Description Qty/Hrs Total LABOR RATE FOR ONE TECHNICIAN TO INSTALL DIALER SYSTEM WITH NEMA 4X ENCLOSURE, WIRE 108 18,360.00 NECESSARY ALARM SIGNALS ( i.e. POWER OUTAGE, HIGH LEVEL, EMERGENCY HIGH LEVEL AND BACK UP FLOAT BEING ENGAGED), PROGRAM THE TELEMETRY UNIT WITH THE CONTACT TELEPHONE NUMBERS. THE TECHNICIAN WILL THEN TEST THE SYSTEM WHEN COMPLETED.(6HRS FOR EACH STATION) AQUAVX DIALER UNIT IN A NEMA 4X ENCLOSURE 4 DIGITAL INPUTS MINIMUM, 1 ANALOG INPUT, 3 REMOTE 18 35,910.00T CONTROL RELAY CONTACTS, 120 VOLTS. BATTERY BACKUP, GSM CELL SITE.(1 UNIT FOR EACH SITE) Aquavx monitoring service - Cell Phone Communications. 1 report per day plus RBE with allowance for up to 0.1 MB of data 216 4.525.20T per month. Overage charges may apply. Service 1 yr prepaid (12 MONTHS FOR EACH UNIT) MISC MATERIALS ( 1 FOR EACH STATION) 18 900.00T Sales Tax (7.75 %) $3,203.48 Job Site Location Total $62,898.68 ized Signature Contact Name Contact Number Title Email Address Date Please note: Due to the nature of the proposed work Jimni Systems cannot guarantee that during the above repairs that any existing equipment will not be damaged or broken,due to age or corrosion not detectable at the time of inspection. If any existing equipment piping,valves,or any accessory items are broken or damaged during the repair Jimni will report this and request authorization to replace any item. If there is an immediate need to replace any item due to maintaining flow and Jimni cannot immediately contact the responsible person.Jimni will replace these items at cost plus our normal overhead and profit. All labor will be at stated rates. PORT TO PORT CHARGES APPLY TO Please Note: Estimate Valid for 60 days only SOME LOCATIONS