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CM-2015-735 - 4/10/2015City of Round Rock TEexeA5 aeCK Agenda Item Summary Agenda Number: Title: Consider executing an Online Subscription Agreement for Notification and Data Management Services with Backfiow Solutions, Inc. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 4/10/2015 Dept Director: Michael Thane, Director of Utilities and Environmental Services Cost: $495.00 Indexes: Attachments: Final BSI Subscription Agreement (Backflow Inspections) (03-31-15) (00332162xAOBF8) Department: Utilities and Environmental Services Text of Legislative File CM -2015-735 On September 19, 2014, the City entered into an online subscription agreement with Backflow Solutions, Inc. (BSI) for backfiow data management. The City is required to maintain a database of all backflow assembly devices in the City. The high -hazard devices are required to be tested each year while the low -hazard devices are required to be tested once every ten years. Tracking this program is extremely time consuming and by contracting with a third party company like BSI, this will allow the City to reduce the burden on its administrative staff. This online subscription agreement will allow the City of Round Rock to utilize BSI for backflow data management. BSI will perform certain notification and data management functions on behalf of the City through the use of its proprietary software, BSI Online. These functions include: • Maintaining a secure Online Database to insure a functional backfiow, assembly tracking system • Maintaining an internet website for testers to input backflow lest data • Sending "Test Due" and "Overdue" Notices to water customers Backfiow Testing companies will provide BSI with necessary information regarding backfiow testing by submitting each lest report to the Online Database, which includes an entry charge of $12.95 per test prior to uploading data. The cost to the City for the annual subscription fee for these services is $495. CMxorf .WR.Q nawf vnnrodonIWms Am & ttam Summary Conn 1CM201S)]51 The City has made some changes to the agreement with BSI that was approved in September of 2014. Staff recommends approval of the new Online Subscription Agreement with BSI. Staff recommends approval. CMyorRouMRo Paget Primed on 11. I5 LEGAL DEPARTMENT APPROVAL FOR CITY COUNCILJCITY MANAGER ACTION Required for Submission of ALL City Council and City Manager Items Onikte Subsuiption for Notification and Data Department Name: Public Works Project Name: Management Services for Backflow Testing Project Mgr/Resource: Michael Thane ContractorNendor: earxflow SOMlbns, Inc. Council Action: ORDINANCE Q RESOLUTION xx City Manager Approval CMA Wording Consider executing an Online Subscription Agreement for Notification and Data Management Services with Backflow Solutions, Inc. orney Approval ffAHorney 6 O:\wdox\SCCIntsW127\1500\MISC\00332544.XLS Updated 6008 CITY OF ROUND ROCK ONLINE SUBSCRIPTION AGREEMENT FOR NOTIFICATION AND DATA MANAGEMENT SERVICES FOR BACKFLOW TESTING WITH BACKFLOW SOLUTIONS, INC. THE STATE OF TEXAS CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS: COUNTY OF WILLIAMSON COUNTY OF TRAVIS THAT THIS ONLINE SUBSCRIPTION AGREEMENT for the purchase of notification and data management services related to backflow testing (referred to herein as the "Agreement'), is made and entered into on this the -Jp� day of the month of , 2015 by and between the CITY OF ROUND ROCK, a Texas home -rule municipality, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (referred to herein as the "City"), and BACKFLOW SOLUTIONS, INC., whose offices are located 12609 South Laramie Avenue, Alsip, Illinois (referred to herein as "BSP'). RECITALS: WHEREAS, City desires to purchase certain goods and services, specifically, to enter into an online subscription agreement whereby BSI shall perform certain notification and data management functions on behalf of City, and City shall provide BSI with the information described hereafter, and require that companies that perform mandated backflow assembly (referred to hereinafter as "Assembly" or Assemblies") test (referred to hereinafter as "Backflow Test(s)") within the City to be directed to the BSI website to enter the result of each Backflow Test performed with the City; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties, and obligations; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 00332162/ss2 CM-aO15--135 1.0 DEFINITIONS A. Agreement means the binding legal contract between City and BSI whereby City is obligated to buy specified services and BSI is obligated to sell same. B. City means the City of Round Rock, Williamson and Travis Counties, Texas. C. Effective Date means the date upon which the binding signatures of both parties to this Agreement are affixed. D. Force Majeure means acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, orders of any kind from the government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government and the people, civil disturbances, explosions, or other causes not reasonably within the control of the party claiming such inability. E. Goods and services mean the specified services, supplies, materials, commodities, or equipment. 2.0 EFFECTIVE DATE, TERM, ALLOWABLE RENEWALS, PRICES FIRM A. This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless cancelled in writing by either party pursuant to Section 15.0. B. City' subscription and this Agreement shall be on a full calendar year basis beginning on January 1 of each year. In the event the Agreement becomes effective at a time other than January 1 of any calendar year, the costs set forth in Section 6.0 shall be prorated in accordance with Section 6.0, and absent notice of cancellation as set forth in Section 15.0, the subscription shall automatically renew on January 1 for the next calendar year. C. City reserves the right to review the relationship with BSI at any time, and may elect to terminate this Agreement with or without cause or may elect to continue. 3.0 CITY RESPONSIBILITIES A. City shall furnish BSI with a current water customer billing database, which shall include a current list of all testable Assemblies, and identify the type of testable Assembly, serial number, size, hazard, and the location address of each such Assembly (hereinafter referred to as "User Data'). B. City shall furnish the User Data in an electronic format acceptable to BSI. C. City shall cooperate with BSI for the purpose of updating User Data and other information to ensure the continuing accuracy of the online database (hereinafter referred to as "Online Database"). 4.0 BSI's RESPONSIBILITIES; SCOPE OF WORK BSI shall through the use of its proprietary software (hereinafter referred to as "BSI Online Software"): A. Maintain the Online Database to insure a functional Assembly tracking system that is easy to understand and use by licensed testers. BSI shall also maintain an internet website (hereinafter referred to as the "Website") where Testers shall register with BSI and input all data related to Backflow Tests they conduct within the City (hereinafter referred to as the "Test Report'). B. Send up to two (2) notices to water customers that have Assemblies, advising them that their Assembly is due for testing. The "Test Due Notice" shall be mailed approximately thirty (30) days prior to the scheduled test date (hereinafter referred as the "Test Date"). The second notice, the "Overdue Notice," shall be sent after the Test Date has passed if a Test Report has not been entered into the Website. The "Overdue Notice" will advise the water customer of its delinquent test status and recite penalties which may result from failure to comply with the testing procedure. C. Transmit an electronic copy of each Test Report to City within fifteen (15) days after the Test Report has been entered into the Online Database. To facilitate the testing procedure, the "Test Due Notice" will include the identity of the water customer's last Tester of record, together with all relevant contact information, provided the information is available to BSI. At the time the "Test Due Notice" is mailed to the water customer, BSI will also transmit a notice to the last Tester of record advising the Tester that the water customer's Assembly is due to be tested (hereinafter referred to as the "Tester Notification"). The Tester Notification is designed to increase test compliance, thereby reducing enforcement costs incurred by City. D. Transmit a notice of non-compliance to City by electronic transmission if BSI fails to receive a Test Report for a water customer within (15) days of the "Overdue Notice." E. The Test Reports for City Assemblies shall not be entered into BSI's database, and therefore, shall not be charged a data testing fee. F. This Agreement shall evidence the entire understanding and agreement between the parties and shall supersede any prior written agreements, proposals, correspondence or discussions. G. A change in the Scope of Services must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described herein. 5.0 INDUCEMENT City acknowledges and agrees that in order to induce BSI to provide the services set forth herein, BSI shall charge the Tester the total sum of Twelve Dollars and 95/100 ($12.95) (hereinafter the "Data Entry Charge") for each Test Report submitted to BSI's Online Database through BSI's Website other than the devices identified in Section 4.0(E) of this Agreement, to perform the functions set forth in this Agreement. 6.0 CONTRACT AMOUNT A. City shall pay BSI the sum of Four Hundred Ninety -Five dollars and no/100 ($495.00) per calendar year as the annual fee (hereinafter the "Subscription Fee") no later than January 31 of each year of the term of this Agreement. In the event City initially subscribes for a period which is less than a full calendar year, the Subscription Fee shall be prorated based upon the number of days remaining in the then calendar year. B. The Subscription Fee is based on City's ability to provide BSI acceptable electronic data. BSI may elect to increase the Subscription Fee at its sole discretion, effective January 1 of any calendar yew, provided BSI provides City not less than thirty (30) days prior notice of each such increase. Should BSI elect to mise the Subscription Fee as set forth herein, it is limited to an increase of no more than ten percent (10%) of the current annual cost. Should BSI elect to increase the Subscription Fee, City may terminate with written notice to BSI no later than ten (10) days prior to the current calendar year renewal. 7.0 INVOICES All invoices shall include, at a minimum, the following information: A. Name and address of BSI; B. Purchase Order Number; C. Description and quantity of items received or services provided; and D. Delivery or performance dates. 8.0 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by City's budget for the fiscal year in question. City may effect such termination by giving BSI a written notice of termination at the end of its then current fiscal year. 9.0 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to BSI will be made within thirty (30) days of the day on which City receives the performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for the performance and/or deliverables or services, whichever is later. BSI may charge interest on an overdue payment at the "rate in effect" on September I of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b); however, this Policy does not apply to payments made by City in the event: A. There is a bona fide dispute between City and BSI, a contractor, subcontractor or supplier about the goods delivered or the service performed that cause the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between BSI and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or D. Invoices are not mailed to City in strict accordance with instructions, if any, on the purchase order or the Agreement or other such contractual agreement. 10.0 GRATUITIES AND BRIBES City may, by written notice to BSI, cancel this Agreement without liability to BSI if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or otherwise were offered or given by BSI or its agents or representatives to any City officer, employee or elected representative with respect to the performance of this Agreement. In addition, BSI may be subject to penalties slated in Title 8 of the Texas Penal Code. 11.0 TAXES City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be included in BSI's charges. 12.0 CITY'S REPRESENTATIVE City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Michael Thane Director of Utility and Environmental Services City of Round Rock 2008 Enterprise Drive Round Rock, Texas 78664 13.0 RIGHT TO ASSURANCE Whenever either party to this Agreement, in good faith, has reason to question the other party's intent to perform hereunder, then demand may be made to the other party for written assurance of the intent to perform. In the event that no written assurance is given within the reasonable time specified when demand is made, then and in that event the demanding party may treat such failure as an anticipatory repudiation of this Agreement. 14.0 DEFAULT If BSI abandons or defaults under this Agreement and is a cause of City purchasing the specified goods elsewhere, BSI agrees that City has the right to terminate this Agreement for cause, upon ten (10) days' written notice to BSI, and that BSI may be charged the difference in cost, if any, and that it will not be considered in the re -advertisement of the service and that it may not be considered in future bids for the same type of work unless the scope of work is significantly changed. BSI shall be declared in default of this Agreement if it does any of the following: A. Fails to fully, timely and faithfully perform any of its material obligations under this Agreement; B. Fails to provide adequate assurance of performance under the "Right to Assurance" section herein; or C. Becomes insolvent or seeks relief under the bankruptcy laws of the United States. 15.0 TERNI NATION AND SUSPENSION A. City may terminate this Agreement for convenience and without cause with at least ninety (90) days written notice to BSI of termination and no later than sixty (60) days prior to the current calendar year renewal. Absent BSI's receipt of written termination received by BSI no later than sixty (60) days prior to the current calendar year renewal, this Agreement will automatically renew on a calendar year basis for as long as City's payments are received in a timely manner as set forth in the Agreement. B. BSI may terminate this Agreement at any time for cause, that being in the event of a material and substantial breach by City, or by mutual agreement to terminate evidenced by writing by and between the parties. C. In the event of early termination (termination prior to the end of the calendar year) by either party, there shall be no refund of the Subscription Fee, or any part thereof. D. In the event that this Agreement is terminated by either party for any reason, BSI, upon written request of City, shall deliver all current User Data to City in electronic format within thirty (30) days of request date at no additional cost to City. 16.0 REPRESENTATION; WARRANTY; AND INDEMNIFICATION A. BSI hereby represents and warrants to City that BSI is the owner of the BSI Online Software and Website or otherwise has the right to grant to City the rights set forth in this Agreement. In the event of any breach or threatened breach of the foregoing representation and warrant, BSI shall either: 1) procure, at BSI's expense, the right to use the software, or 2) refund to City the full amount of the Subscription Fee. B. City acknowledges and agrees that the BSI Online Software and Website are the exclusive property of BSI and that BSI is making the BSI Online Software, Website, and Online Database available to City and the Testers. While the BSI Online Database Software and Website enable Tester to upload completed test data, BSI accepts no responsibility or liability for fraudulent acts, errors or omissions which may be contained in the Test Reports resulting from the Tester's errors or omissions. C. BSI shall defend (at the option of City), indemnify, and hold City, its successors, assigns, officers, employees and elected officials harmless from and against all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of BSI's, or BSI's agents, employees or subcontractors, in the performance of BSI's obligations under this Agreement, no matter how, or to whom, such loss may occur. Nothing herein shall be deemed to limit the rights of City or BSI (including, but not limited to the right to seek contribution) against any third party who may be liable for an indemnified claim. 15.0 CONFIDENTIALITY; AND MATERIALS OWNERSHIP A. Any and all programs, data, or other materials furnished by City for use by BSI in connection with services to be performed under this Agreement, specifically, to facilitate the creation and maintenance of the Online Database for the purpose of uploading data through a user name and identity key that will change annually to augment the security of the Online Database and Website. The information contained on the Online Database shall not be made available to any third party without City's written direction. BSI acknowledges that City is a governmental unit governed by laws, such as the Texas Public Information Act, that require release of documents and City may be required to release certain information under the law. B. City acknowledges that BSI Online Software, Website, and Online Database constitute and contain valuable proprietary products and trade secrets of BSI and/or its suppliers. Therefore, City agrees: (1) To respect and not remove, obliterate, use or cancel from view and copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the BSI Online Software, Website or output generated by the BSI Online Software or Website. (2) That it will not modify, reverse engineer, disassemble, or decompile the BSI Online Software, or any portion thereof. (3) That all copies of the BSI Online Software in any form provided by BSI or made by City are the sole property of BSI and/or its suppliers. City shall not have any right, title, or interest to any such BSI Online Software or Website or copies thereof except as provided in this Agreement, and further shall secure and protect all BSI Online Software, the Website and any documentation related thereto consistent with maintenance of BSI's proprietary rights therein. (4) To treat (and take precautions to ensure that its employees treat) the BSI Online Software, Website and any documentation related thereto as confidential, to the extent allowed by law. The parties recognize and understand that City is subject to the Texas Public Information act and its duties run in accordance therewith. 17.0 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES BSI, its agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable mles and regulations promulgated by local, state and national boards, bureaus and agencies. 18.0 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terns of this Agreement. Neither party shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. 19.0 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 1. When delivered personally to the recipient's address as stated in this Agreement; or 2. Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to BSI: Backflow Solutions, Inc. 12609 South Laramie Avenue Alsip, Illinois 60803 Notice to City: City Manager Stephan L. Sheets, City Attorney 221 East Main Street AND TO: 309 East Main Street Round Rock, TX 78664 Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and BSI. Notice sent to Testers pursuant to Section 5.0 shall be sent to the address they register on the Online Website. 20.0 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 21.0 EXCLUSIVE AGREEMENT This document, and all appended documents, constitutes the entire Agreement between BSI and City. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing, duly authorized by action of the City Manager or City Council. 22.0 DISPUTE RESOLUTION City and BSI hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 23.0 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 24.0 MISCELLANEOUS PROVISIONS Standard of Care. BSI represents that it employs trained, experienced and competent persons to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed in a manner according to generally accepted industry practices. Time is of the Essence. BSI understands and agrees that time is of the essence and that any failure of BSI to fulfill obligations for each portion of this Agreement within the agreed timeframes will constitute a material breach of this Agreement. BSI shall be fully responsible for its delays or for failures to use best efforts in accordance with the terms of this Agreement. Where damage is caused to City due to BSI's failure to perform in these circumstances, City may pursue any remedy available without waiver of any of City's additional legal rights or remedies. Force Majeure. Neither City nor BSI shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for which it is not responsible as defined herein. However, notice of such impediment or delay in performance must be timely given and all reasonable efforts undertaken to mitigate its effects. 10 Multiple Counterparts. This Agreement may be executed in multiple counterparts, any one of which shall be considered an original of this document; and all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City and BSI have executed this Agreement on the dates indicated. City of nd Rock, Texas By: Printed Name: Title: Date Signed: Attest: �q n By: L, vWVvt/v Sara L. White, City Clerk For City, p •oved as to F rm: By: Stephan IM Sheets, City Attorney 11 Backflow Splutions, Inc. By: Printed Title: Date Signed: 3 - 3/- /,'