HomeMy WebLinkAbout09 - Traffic Signal Modernization ProjectCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 9
June 23, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Brad Sommers 949 -644 -3326 or bsommers @city.newport- beach.ca.us
SUBJECT: Traffic Signal Modernization Project - Approval of Amendment 1 to
the Purchase Contract with Econolite Control Products, Inc.
RECOMMENDATION:
Approve Amendment No. 1 to the Phase 1 Purchase Contract with Econolite Control
Products, Inc. of Anaheim, California, for purchase and installation of advanced traffic
signal management equipment for Phases 2 and 3 of the Traffic Signal Modernization
Project, at a not to exceed price of $307,337.70 and authorize the Mayor and City Clerk
to execute the Agreement.
DISCUSSION:
On March 23, 2008, the City entered into an agreement with Econolite, Inc. to provide
equipment, services, and Econolite Icons Traffic Management Software as part of the
first phase of the Traffic Signal Modernization Project. The project included
procurement and installation of an Econolite Icons Traffic Management System,
computer equipment, Econolite traffic signal control equipment, Ethernet
communication equipment and Closed Circuit Television (CCTV) equipment.
During the initial design of the Citywide Traffic Signal Moderization project, staff
completed a selection process to determine the best qualified vendor for the traffic
signal controller hardware and software. Staff interviewed each vendor and completed
an extensive evaluation of the products and services of seven different manufacturers
and suppliers of traffic control equipment. Staff reviewed each firm's qualifications, past
experience on similar projects, and availability before selecting Econolite as the best
qualified firm to provide the hardware and software for our City -wide Traffic Signal
Modernization project. Upon selection, staff negotiated with Econolite to provide the
necessary equipment and services for our Phase One project for a fee of $584,610.
Phase One is now complete and we are now proceeding to construct Phases Two and
Phase Three.
Traffic Signal Modernization— Approval of Amendment 1 Purchase Contract with Econolite Control Products, Inc.
June 23, 2009
Page 2
Phases Two and Three have been combined to expedite construction. These Phases
include installation of fiber optic communications, 13 CCTV cameras, and new traffic
signal control equipment at 27 existing signalized intersections along the Jamboree
Road Corridor (Phase 2) and within the Airport Area (Phase 2).
Econolite, Inc. has prepared a proposal to provide advanced traffic management
equipment and installation necessary to upgrade the traffic signals to be compatible
with the recently - completed Traffic Management Center and Econolite Icons Traffic
Management Software. The Econolite Proposal has provisions for the following:
1. Furnish 29 Econolite ASC /3 Advanced Traffic Signal Controllers (includes two
spare controllers);
2. Furnish Econolite Traffic Signal Management Equipment;
3. Furnish six Traffic Signal Control Cabinets for intersection requiring replacement;
4. Provide installation and modification labor for provided Econolite Equipment;
5. Provide support to City Staff for the integration of the modernized intersections;
6. Provide an additional five CCTV licenses for the Icons Traffic Management
Software.
The Econolite Icons traffic management system requires Econolite traffic signal control
equipment, such as the Econolite ASC /3 traffic signal controllers, to operate efficiently
and access the system's utilities. As Econolite has been selected as the vendor for
these products, staff will continue to purchase equipment directly from Econolite to
buildout and maintain the system.
On April 14, 2009 the City entered into a contract with CT &F, Inc. to construct the fiber
optic infrastructure for the project. A second contract, the contract amendment with
Econolite, Inc., will furnish and install traffic signal control equipment. A final purchase
contract will procure Ethernet communication equipment. A vendor for this service has
not yet been chosen.
Environmental Review:
Categorically Exempt under Chapter 3, Article 19, Section 15301, Class 1 (c) of the
Title 14 California Code of Regulations. This exemption covers maintenance, repair,
and upgrades of existing traffic signal facilities.
Traffic Signal Modernization — Approval of Amendment 1 Purchase Contract with Econol@e Control Products, Inc.
June 23, 2009
Page 3
Funding Availability:
There are sufficient funds available in the following accounts for the project:
Account Description Account Number Amount
Measure M Turnback 7281- C3002002 $ 307,337.70
Prepared by:
Brad Sommers
Senior Civil En neer
Attachment: Purchase Contract
Total: $ 307,337.70
ECONOLITE CONTROL PRODUCTS, INC.
3360 East La Palma Avenue
Anaheim, CA 92806
Tel (714) 630 -3700 FAX (714) 630 -5120
Proposal
Date: May 26, 2009
To: City of Newport Beach
Attn: Brad Sommers
From: Gina Prohaska
Email: gprohaska0econolite.com
Re: City of Newport Beach Traffic Signal Modernization Project Phase 2
and 3. Proposal based on field review
We are offering the following products at prices and conditions set forth on this form.
Item Qty Description Unit Price Extended Price
'1 `Option: Icons System Integration (1 $9700.00 $9700.00
week of system integration)
The standard charge for Integration
services is $185 per hour. For the
requested quote for up to one week of
optional integration support, this would
come to $7400. Any travel required
would come to a flat fee of $2300
including airfare, food, lodging and
ground transportation. Should a remote
connection be provided by the City
whereby our support team can perform
their services from the Colorado Springs
office, the travel cost can be eliminated.
24 ASC /3 -2100 Controllers with 110VAC, Data $2,380.00 $57,120.00
Key and Ethernet Module
Part Number: ASC321010100000
4 ASC13 Programming Manual $42.00 $168.00
ASC13 Operations Manual
6 ASC13RM Controllers with C1 Series, 110 $2,633.00 $15,798.00
VAC, Data Key and Ethernet Module
Part Number ASC3RM21110100000
Locations:
Jamboree & Bristol Street South
Jamboree & Bristol Street North
Bristol Street & North
Bristol Street & South
Bayview Place & Bristol South
17 Field Modification Equipment to existing $2,468.00 $41,956.00
NEMA traffic signal cabinets per City
furnished list (As done in Phase 1 of project)
to include: MMU, D panel, Connecting
cables, Filtered Convenience Outlet,
Terminal Block and Telephone Brackets,
Ped Isolation boards, Push button switches,
Door switch brackets, SDLC cable from
ASC /3 to MMU and resistor panel assembly
for pedestrian yellows
Locations:
Jamboree and Island Lagoon Drive
Jamboree and Santa Barbara Drive
Jamboree and San Joaquin Hills Road
Jamboree and Ford Road
Jamboree and Bison Avenue
Jamboree and University Drive
Jamboree and Bayview Way
Jamboree and MacArthur Blvd
Santa Barbara and San Clemente Drive
Bison Avenue and Country Club
Bison Avenue and Bayswater
MacArthur Blvd and Newport Place
MacArthur Blvd and Birch Street
Campus Drive and Airport Way
Campus Drive and Quail Street
Birch Street and Dove Street
Bayview Place and Bayview Circle
5A
17 Field Modification Labor for Nema locations
$1,600.00 $27,200.00
noted in line item #5 (Work to be
accomplished at night) Hourly labor rate
$200.00 x 8 hours per location.
6
5 Field Modification Equipment to existing 170
$1454.00 $7270.00
traffic signal cabinets per City furnished list
(As done in Phase 1 of project) Furnishing
of ancillary traffic signal equipment such as
2010 EDI Monitor, Telephone Block and
Bracket, 16 channel Red Monitor kit, Push
Button Switch, including Output file as
required
Locations:
Jamboree and Bristol Street South
Jamboree and Bristol Street North
Birch Street and Bristol Street North
Birch Street and Bristol Street South
Bristol Street and Bayview Circle
6A
5 Field Modification Labor for 170 locations
$1200.00 $6000.00
noted in line item# 6 (Work to be
accomplished at night) Hourly labor rate
$200.00 x 6 hours per location.
7
1 Jamboree and BackBa Dv rive Type P
$19,232.00 $19,232.00
Cabinet minus ASC /3 Controller as shown in
line item #2. Cabinet built, per City of
Newport Beach cabinet specification, minus
installation
8
1 Bison Avenue and Camelback Street
$18,66100 $18,663.00
Type P Cabinet minus ASC/3 Controller as
shown in line item #2. Cabinet built per City
of Newport Beach cabinet specification,
minus installation
9
1 Birch Street and Quail Street
$18,982.00 $18,982.00
Type P Cabinet minus ASC /3 Controller as
shown in line item #2. Cabinet built per City
of Newport Beach cabinet specification,
minus installation
10
1 Campus Drive and Bristol Street North Type
$21,403.00 $21,403.00
O Cabinet minus ASC /3 Controller as
shown in line item #2. Cabinet built per City
of Newport Beach cabinet specification,
minus installation
11
1 Irvine Avenue and Bristol St. South
$20,464.00 $20,464.00
Type O Cabinet minus ASC /3 Controller as
shown in line item #2. Cabinet built per City
of Newport Beach cabinet specification,
minus installation
12
1 Jamboree and Bawiew Way
$18,213.00 $18,213.00
Type P Cabinet minus ASC /3 Controller as
shown in line item #2. Cabinet built per City
of Newport Beach cabinet specification,
minus installation. Standard two channel
detectors provided. Detectors with timing
not included per plan
Grand Total including line optional line $282,169.00
item #1
Tax 8.75 %on equipment only $20,936.16
Sub -Total with Tax: $303,105.16
Bond (1.5% flat based on pre -tax Total): $4,232.54
Grand Total: $307,337.70
Taxes: Not Included Gina Prohaska
F.O.B.: Anaheim Account Manager
Terms: Net 30
Delivery: 4 weeks for ASC /3 Controllers, 6 weeks upon receipt of order for field
modifications, 12 weeks for cabinets with two additional weeks for outside
test.
Valid For: 30 Days
Freight: Prepaid
AMENDMENT NO. 1 TO
CONTRACT WITH ECONOLITE CONTROL PRODUCTS, INC.
FOR PURCHASE, INSTALLATION AND REPAIR SERVICES OF
ICONS ®ADVANCED TRAFFIC MANAGEMENT SYSTEM
FOR TRAFFIC SIGNAL MODERNIZATION PROJECT
THIS AMENDMENT NO. 1 TO CONTRACT is made and entered into as of this _
day of June, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal
Corporation and Charter City ( "City "), and ECONOLITE CONTROL PRODUCTS, INC.,
whose principal place of business is 3360 E. La Palma Ave., Anaheim, CA 92806,
( "Contractor "), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City entered into Agreement on February 14, 2008 for the purchase and
installation of software and equipment for advanced traffic management at 22
intersections within the City ( "Agreement ").
C. Under the Agreement, the City agreed to pay Contractor an amount not to
exceed $584,669.12 to perform Phase One of the Project.
D. City desires to perform Phase Two and Three of its Traffic Signal Modernization
project which will upgrade traffic signal control equipment at 27 existing
signalized intersections, install 13 Closed Circuit Television (CCTV) cameras,
and install fiber optic communications along the Jamboree Road Corridor and
the Airport Area, connecting the upgraded intersections to the recently - complete
Traffic Management Center (TMC) at City Hall. ( "Project').
E. City desires to enter into this "AMENDMENT NO. 1" to reflect additional services
and equipment required for City to complete Phase Two and Three of the Traffic
Signal Modernization project ( "Project ").
F. City and Contractor have not entered into any separate amendments to the
Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall extend to June 30, 2010 unless terminated
earlier as set forth herein.
2. SCOPE OF WORK
Consultant shall diligently deliver all equipment and perform all the services
described in the Agreement and the Scope of Services attached hereto as
Exhibit A.
3. COMPENSATION
As full compensation due Consultant for all equipment purchased and services
performed pursuant to this "Amendment No. 1," and the scope of services/ billing
rates attached hereto as Exhibit A, including all reimbursable items and
subconsultant fees, shall be Three Hundred Seven Thousand Dollars Three
Hundred Thirty Seven and 70/100 ($307,337.70)).
Contractor shall not receive any additional compensation unless approved in
advance by the City in writing. The City shall make progress payments as the
Project work proceeds based on the percentage of Project work completed. City
shall pay Contractor no later than thirty (30) days after approval of the monthly
invoice by City staff.
Notwithstanding any other provision of this Agreement, when payments made by
City equal 90% of the maximum amount provided for in this Agreement, no further
payments shall be made until City has accepted the final work under this
Agreement.
4. BONDING
Contractor shall obtain, provide and maintain at its own expense during the term
of this Contract: a Labor and Materials Payment Bond in the amount of one
hundred percent (100 %) of the total amount to be paid Contractor as set forth in
this Agreement and in the form attached hereto as Exhibit B which is
incorporated herein by this reference; and a Faithful Performance Bond in the
amount of one hundred percent (100 %) of the total amount to be paid Contractor
as set forth in this Agreement in the form attached hereto as Exhibit C which is
incorporated herein by this reference.
The Labor and Materials Payment Bond and Faithful Performance Bond shall be
issued by an insurance organization or surety (1) currently authorized by the
Insurance Commissioner to transact business of insurance in the State of
California, (2) listed as an acceptable surety in the latest revision of the Federal
Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and
Financial Size Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide: Property - Casualty.
The Contractor shall deliver, concurrently with execution of this Agreement, the
Labor and Materials Payment Bond and Faithful Performance Bond, a certified
copy of the "Certificate of Authority" of the Insurer or Surety issued by the
2
Insurance Commissioner, which authorizes the Insurer or Surety to transact
surety insurance in the State of California.
5. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Contractor and conclusively shall be
deemed served when delivered personally, or on the third business day after the
deposit thereof in the United States mail, postage prepaid, first -class mail,
addressed as hereinafter provided. All notices, demands, requires or approval
from Contractor to City shall be addressed to City at:
Attn: Brad Sommers
Public Works Department
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658 -8915
Ph: (949) 644 -3326
Fax: (949) 644 -3318
bsommersCilcitv.newoort-beach ca us
All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at:
Attn: Roy Howard
Econolite Control Products, Inc.
3360 E. La Palma Ave.
Anaheim, CA 92806
Ph: (719) 471 -9866 ext. 352
Fax: (719) 471 -9063
Rhoward(@econolite.com
6. OTHER MATTERS
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and
effect, Agreement is attached hereto as Exhibit D.
3
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
yne e h mp
Assistant Cit ttorney
ATTEST:
Leilani Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
Edward D. Selich,
Mayor
ECONOLITE CONTROL PRODUCTS,
INC.
By:
Name: Jeff P. Spinazze
Title: Senior Vice President
Name: Brian Martin
Title: Assistant Secretary
Attachments: Exhibit A —Scope of Services/ Billing Rates
Exhibit B— Labor and Materials Payment Bond
Exhibit C— Faithful Performance Bond
Exhibit D-- Original Agreement
I
ECONOLITE CONTROL PRODUCTS, INC.
3360 East La Palma Avenue
Anaheim, CA 92606
Tel (714) 630 -3700 FAX (714) 630 -5120
Proposal
Date: May 26, 2009
To: City of Newport Beach
Attn: Brad Sommers
From: Gina Prohaska
Email: pprohaska0econolite.com
Re: City of Newport Beach Traffic Signal Modernization Project Phase 2
and 3. Proposal based on field review
We are offering the following products at prices and conditions set forth on this form.
Item Ofty Description Pnit Price Extended Price
`1 *Option: Icons System Integration (1 $9700.00 $9700.00
week of system integration)
The standard charge for integration
services Is $185 per hour. For the
requested quote for up to one week of
optional integration support, this would
come to $7400. Any travel required
would come to a flat fee of $2300
Including airfare, food, lodging and
ground transportation. Should a remote
connection be provided by the City
whereby our support team can perform
their services from the Colorado Springs
office, the travel cost can be eliminated.
2 24
ASC /3 -2100 Controllers with 110VAC, Data
$2,380.00
$57,120.00
Key and Ethernet Module
Part Number: ASC321010100000
3 4
ASC/3 Programming Manual
$42.00
$168.00
ASC /3 Operations Manual
4 6
ASC/3RM Controllers with C1 Series, 110
$2,633.00
$15,798.00
VAC, Data Key and Ethernet Module
Part Number ASC3RM21110100000
Locations:
Jamboree & Bristol Street South
Jamboree & Bristol Street North
Bristol Street & North
Bristol Street & South
Bayview Place & Bristol South
5 17
Field Modification Equipment to existing
$2,468.00
$41,956.00
NEMA traffic signal cabinets per City
furnished list (As done in Phase t of project)
to include: MMU, D panel, Connecting
cables, Filtered Convenience Outlet,
Terminal Block and Telephone Brackets,
Ped Isolation boards, Push button switches,
Door switch brackets, SDLC cable from
ASC /3 to MMU and resistor panel assembly
for pedestrian yellows
Locations:
Jamboree and Island Lagoon Drive
Jamboree and Santa Barbara Drive
Jamboree and San Joaquin Hills Road
Jamboree and Ford Road
Jamboree and Bison Avenue
Jamboree and University Drive
Jamboree and Bayview Way
Jamboree and MacArthur Blvd
Santa Barbara and San Clemente Drive
Bison Avenue and Country Club
Bison Avenue and Bayswater
MacArthur Blvd and Newport Place
MacArthur Blvd and Birch Street
Campus Drive and Airport Way
Campus Drive and Quail Street
Birch Street and Dove Street
Bayview Place and Bayview Circle
5A 17 Field Modification Labor for Nema locations
noted in line item #5 (Work to be
accomplished at night) Hourly labor rate
$200.00 x 8 hours per location.
6 5 Field Modification Equipment to existing 170
traffic signal cabinets per City furnished list
(As done in Phase 1 of project) Furnishing
of ancillary traffic signal equipment such as
2010 ED[ Monitor, Telephone Block and
Bracket, 16 channel Red Monitor kit, Push
Button Switch, including Output file as
required
Locations:
Jamboree and Bristol Street South
Jamboree and Bristol Street North
Birch Street and Bristol Street North
Birch Street and Bristol Street South
Bristol Street and Bayview Circle
6A 5 Field Modification Labor for 170 locations
noted in line item# 6 (Work to be
accomplished at night) Hourly labor rate
$200.00 x 6 hours per location.
7 1 Jamboree and BackBav Drive Type P
Cabinet minus ASC/3 Controller as shown in
line item #2. Cabinet built per City of
Newport Beach cabinet specification, minus
installation
$1,600.00
$1454.00
$1200.00
$19,232.00
$27,200.00
$7270.00
$6000.00
$19,232.00
8
1 Bison Avenue and Camelback Street
$18,663.00 $18,663.00
Type P Cabinet minus ASC /3 Controller as
shown in line item #2. Cabinet built per City
of Newport Beach cabinet specification,
minus installation
9
1 Birch Street and Quail Street
$18,982.00 $18,982.00
Type P Cabinet minus ASCI3 Contro44er as
shown in line item #2. Cabinet built
per City
of Newport Beach cabinet specification,
minus installation
10
1 Campus Drive and Bristol Street North Type
$21,403.00 $21,403.00
O Cabinet minus ASC/3 Controller as
shown in line item #2. Cabinet built per City
of Newport Beach cabinet specification,
minus installation
11
1 Irvine Avenue and Bristol St. South
$20,464.00 $20,464.00
Type O Cabinet minus ASC /3 Controller as
shown in line item #2. Cabinet built per City
of Newport Beach cabinet specification,
minus installation
12
1 Jamboree and Bawiew Wav
$18,213.00 $18,213.00
Type P Cabinet
minus ASC/3 Controller as
shown in line item #2. Cabinet built per City
of Newport Beach cabinet specification,
minus installation. Standard two channel
detectors provided. Detectors with timing
not included per plan
Grand Total Including line optional line $282,169.00
item #1
Tax 8.75% on equipment only $20,936.16
Sub -Total with Tax: $303,105.16
Bond (1.5% flat based on pre -tax Total): $4.232.54
Grand Total: $307,337.70
Taxes: Not Included Gina Prohaska
F.O.B.: Anaheim Account Manager
Terms: Net 30
Delivery: 4 weeks for ASC/3 Controllers, 6 weeks upon receipt of order for field
modifications, 12 weeks for cabinets with two additional weeks for outside
test.
Valid For: 30 Days
Freight: Prepaid
EXHIBIT B
CITY OF NEWPORT BEACH
BOND NO.
LABOR AND MATERIALS PAYMENT BOND
WHEREAS, the City of Newport Beach, State of California, has awarded to
ECONOLITE CONTROL PRODUCTS, INC., hereinafter designated as the "Principal," a
contract for the , located at in
the City of Newport Beach, in strict conformity with the Contract on file with the office of
the City Clerk of the City of Newport Beach, which is incorporated herein by this
reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a bond, providing that if Principal or any of
Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies
used in, upon, for, or about the performance of the work agreed to be done, or for any
work or labor done thereon of any kind, the Surety on this bond will pay the same to the
extent hereinafter set forth.
NOW, THEREFORE, We the undersigned Principal, and,
duly authorized to
transact business under the laws of the State of California, as Surety, (referred to
herein as "Surety") are held firmly bound unto the City of Newport Beach, in the sum of
($ ) lawful money of the United States of America, said sum being equal
to 100% of the estimated amount payable by the City of Newport Beach under the
terms of the Contract; for which payment well and truly to be made, we bind ourselves,
our heirs, executors and administrators, successors, or assigns, jointly and severally,
firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the
Principal's subcontractors, fail to pay for any materials, provisions, or other supplies,
implements or machinery used in, upon, for, or about the performance of the work
contracted to be done, or for any other work or labor thereon of any kind, or for amounts
due under the Unemployment Insurance Code with respect to such work or labor, or for
any amounts required to be deducted, withheld and paid over to the Employment
Development Department from the wages of employees of the Principal and
subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with
respect to such work and labor, then the Surety will pay for the same, in an amount not
exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the
obligations of this Bond, a reasonable attorney's fee, to be fixed by the Court as required
by the provisions of Section 3250 of the Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and
corporations entitled to file claims under Section 3181 of the California Civil Code so as to
give a right of action to them or their assigns in any suit brought upon this Bond, as
required by and in accordance with the provisions of Sections 3247 et. seq. of the Civil
Code of the State of California.
And Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alterations or additions to the terms of the Contract or to the work to be
performed thereunder shall in any wise affect its obligations on this Bond, and it does
hereby waive notice of any such change, extension of time, alterations or additions to the
terms of the Contract or to the work or to the specifications.
In the event that any principal above named executed this Bond as an individual, it
is agreed that the death of any such principal shall not exonerate the Surety from its
obligations under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the above
named Principal and Surety, on the day of 2009.
Name of Contractor (Principal) Authorized Signature/Title
Name of Surety
Address of Surety
Telephone
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE
ATTACHED
2
EXHIBIT C
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $
being at the rate of $
price.
thousand of the Contract
WHEREAS, the City of Newport Beach, State of California, has awarded to
ECONOLITE CONTROL PRODUCTS, INC., hereinafter designated as the "Principal," a
contract for the , located at
in the City of Newport Beach, in strict conformity with the Contract on file with the office of
the City Clerk of the City of Newport Beach, which is incorporated herein by this
reference.
WHEREAS, Principal has executed or is about to execute the Contract and the
terms thereof require the furnishing of a Bond for the faithful performance of the Contract.
NOW, THEREFORE, we, the Principal, and
' duly authorized to transact business under the laws of the State of
California as Surety (hereinafter "Surety"), are held and firmly bound unto the City of
Newport Beach, in the sum of ($ ) lawful money of the United States of
America, said sum being equal to 100% of the estimated amount of the Contract, to be
paid to the City of Newport Beach, its successors, and assigns; for which payment well
and truly to be made, we bind ourselves, our heirs, executors and administrators,
successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the
Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and
well and truly keep and perform any or all the work, covenants, conditions, and
agreements in the Contract Documents and any alteration thereof made as therein
provided on its part, to be kept and performed at the time and in the manner therein
specified, and in all respects according to its true intent and meaning, or fails to
indemnify, defend, and save harmless the City of Newport Beach, its officers, employees
and agents, as therein stipulated, then, Surety will faithfully perform the same, in an
amount not exceeding the sum specified in this Bond; otherwise this obligation shall
become null and void.
As a part of the obligation secured hereby, and in addition to the face amount
specified in this Performance Bond, there shall be included costs and reasonable
expenses and fees, including reasonable attorneys fees, incurred by the City, only in the
event the City is required to bring an action in law or equity against Surety to enforce the
obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Contract or to the work to be performed
thereunder shall in any way affect its obligations on this Bond, and it does hereby waive
notice of any such change, extension of time, alterations or additions of the Contract or to
the work or to the specifications.
This Faithful Performance Bond shall be extended and maintained by the Principal
in full force and effect for one (1) year following the date of formal acceptance of the
Project by the City.
In the event that the Principal executed this bond as an individual, it is agreed that
the death of any such Principal shall not exonerate the Surety from its obligations under
this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal
and Surety above named, on the day of 2009.
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE
ATTACHED
I'll
l C -3�f54
CONTRACT WITH ECONOLITE CONTROL PRODUCTS, INC.
FOR PURCHASE, INSTALLATION, MAfNTENANCE
AND REPAIR SERVICES OF!cons® ADVANCED TRAFRC MANAGEMENT
SYSTEM
th
THIS CONTRACT Is made and entered Into as of this kday of Febroery, 2008, by
and between the CITY OF NEWPORT BEACH, a Municipal Corporation and Charter
City (CIty"), and ECONOLITE CONTROL PRODUCTS, INC. a Ceffomfa corporation
whose principal place of business Is 3360 E. La Palms Ave., Anaheim. CA 82808,
('Contractor"), and Is made with reference to the following:
RECITALS
A. City Is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on Its business as It is now
being conducted under the statutes of the State of California and the Charter of
city.
S, Crty Is planning to perform Phase One of its Traffic Signal Modernization project
( "Project'), which will provide advanced traffic management at 22 Intersections
within the City.
C. City desires to purchase necessary software and equipment from Contractor, to
engage Contractor to Install all necessary equipment and software, to provide
advanced traffic management at 22 Intersections within the City, and to configure
thst system to provide automating capability for up to 150 Intersections at a later
date. City also wishes to engage Contractor to provide training to City staff who
wig be Involved in operation of the noon® Advanced Traffic Management
System. (All such software and equipment purchases, installation, and training
shall be hereinafter referred to as "Projecf). Contractor has agreed to Perform
the Project over a 120 day period, commencing upon receiving Notice to
Proceed.
D. The !cons® Advanced Traffic Management System shall provide coordination and
enhanced operation at 22 traffic signals for Phase One of the Traffic Signal
Modernization Project and which Is capable of being expanded to tnft signals
throughout the City In future project phases N agreed to by City and Contactor.
Additionally, Ise foonslP Advanced Traffic Management System will provide
advanced traffic signal observation and response from City Hag through has
interface with closed circuit television cameras (CCTV) and direct communication
with Individual Intersections, creating oentragted control for the connected
intersections as needed from the Treffio Division of the City's Public Worirs
Department _
E. Contractor has examined the location of all proposed work, carefully reviewed
and evaluated the specifications set forth by the City for the Project, is famgfar
with all conditions relevant to the performance of services and has committed to
perform all work required for the price specified In this Agreement.
C) Q
F. Contractor to a manufacturer and Supplier of traffic control equipment, advanced
traffic management systems and traffic controller firmware.
0. Contractor, alone and in partnership with others, has developed proprietary
software systems, Including the communication and control system registered as
•/eons.'
NOW, THEREFORE, B Is mutually agreed by and between the undersigned parties as
followa:
1. SCOPE OF WORK
Contractor shall provide all tangible iteme and perform all the sarvtces described
In the Scope of Work attached hereto as Exhibit A and Incorporated herein by
this reference.. As a material Inducement, to the City entering IMO this
Agreement. Contractor represents and warrants that Contractor is a provider W
first class work and services and Contractor is experienced in, perfomdng the
we* and services contemplated herein and, In light of such stetus and
experience, Contractor revenants that H shag follow the highest professional
standards In performing the wwk and services required hereunder and that all
materials will be of good quality. For purposes of fhis Agreement, the phrase
•hlghest professional standards• shag mean those standards of practice
recognized by one or more first-class firms performing similar work under similar
circumstances.
' Contractor shall perform everything required to be performed, and shall provide
. and famish ail the labor, materials, necessary tools, expendable equipment and an
udll y and transportation services neaesaaryforthe Project
In consideration of the payment of the Purchase Price and subject to an the
tense and conditions hereof, Contractor shall:
(a) Sell to City, and Instati, , the software, hardware, devices,
conneedonb and .equipment (herelnattar referred to as 'the
as ched Schedule hereto
ule A and incorporated in fug by Us reference.
(b) Supply to City under license the'software components of the
icons® system, described In detail In Schedule A Including any
necessary licensed software products and related materials.
(0) operate the S nchro® Interface Module software N hardware to
(d) Provide the tasting and training serrtcee as setfarth In Elthtbk A. .
2. TIME OF PERFORMANCE
Time Is of the essence in the performance of services under this Agreement and
Contractor shall complete the Project Installation, implementation and
S.
0
acceptance testing within the time set forth In Exhibit A. The failure by
equipment to the City, and/or movement of the hardware to the prepared site
Contractor to most this schedule may result In termination of this Agreement by
within the City. Contractor shall also be responsible for removal of all debris
City as outlined In Section 16.
and pacidng materials from the City are resulting aom the (WAILation of the
2.1 Force Melaur
equipment, hardware and software.
B. Contractor shag provide City with a minimum 14 days notice of Its dates of
The time parlod(s) specified in Exhibit A for performance of services rendered
Installation to enable the City to prepare the Installation sites for the Hardware
pursuant to this Agreement shall be extended because of any delays due to
delays due
in accordance wttin the InaVUUlons of Contractor. The City shat/ complete she
unforeseeable causes beyond the control and without the fault or of
Preparation prim to /lie date of of the hardware, and the sits shall
Contractor, Including but not restricted to ads of Gad or of the public enemy,
thereafter Inspection and approval Ai meta and
available for Ineshelf
unusually severe weather, tires, earthquakes, floods, epidemics, quarantine
to Contractor
related the afte shelf b the sole expense of qty. Contractor
restrictions, riots, strikes, freight embargoes, were, and/or ads of any
provide staff for complete on.elte framing of City personnel as set forth In
i r complete a ra
governmental agency, Including the City, If Contractor shall within tan (10) days
Exhibit
of the commencement of such delay ratify City in writing of the cause of the
delay. delay. City shall ascertain the fads and extent of delay, and extend the time for
G. Payments shag be made in accordance with this Section and the schedule
performing the services for the period of the enforced delay when and If in the
set forth In ExhdbftA.
Judgment of the City such delay Is jusUtied. Chy's determination shall be Mal
and conclusive upon the parties to No Agreement. In no event shall Contractor
D. Extra Work. Contractor shop not receive any compensation forExbe Work
be entitled to recover damages against City for any delay In performance of this
without the prior written authorization of the qty. As used herein,'F!rtra WOW
Agreemen4 however caused. Contra tots sole remedy being extension of the
means any work that Is determined by the qty to be necessary for the proper
Agreement pursuant to this Section.
completion of the Project but which Is not included In the Purchase Price u
2 2 1=
In Exhibit A, and which patties did not reasonably anticipate vwWd be
necessary. Compensation for any authorked Exb`a Work shag be paid in
necessary.
Unless eMlar terminated In acowdafae with Section 17 of this Agreement, this
accordance with the hourly rates act forth In Wbft A
Agrooment shall continue In full tone and effect urdll completion of the services
4., •
agreed to herein.
,ADMINISTRATION
COMPENSATION.
This Agreement will be administered by the Public Works Department Anthony
.
Brine shall be the Project Adminlatretor and shall have the authority to act for
As full compensation for the performance are completion of the Project as
City under this Agreement,
required by the Scope of Work, City shag pay to Contractor and Contractor accepts
T
S. TYPE AND INSTALLATION OF MAIIERIALSISTANDARD OF CARE
the full Purchase PAC: the aura of Fiva Hundred Etahiy -Four Thousand. Six
Hundred Slxtv-Ninq Dollars and 12H00 (9564.869.121. Contractor snail not
5.1 Contractor shall use only the standard materiels described In Exhibit A In
receive any additional compensation unless approved in advance by the City In
performing scribed under this Agreement Arty deviation from She
writing. The City shall make monthly progress payments for labor as the Project
materials described In Exhibit A shag not be installed unless approved N
work proceeds based on the fee schedule set forth in Exhibit A Payment for
advance by the City Project AdmlMauamr.
by
software, hardware and equipment stall become due upon shipment a and
receipt of such software, hardware and equipment to City. City shall pay
5.2 All of the services shag be performed by Contractor or under Contractor's
Contractor ninety percent (90%) of each approved Invoice amount no later than
supervision. Contractor represents that It possesses this personnel
thirty (30) days after approval of on Invoice by City staff. The remaining ten
required to perform the services required by this Agreement. and that it
percent (10%) of each approved Invoice shag be paid by City upon Final System
Will perform all services In a manner commensurate with Communriy
Acceptance, as defined In Subsection 6.1 of this Agreement
prolesslonal standards. All services chap be performed by qualified and
A.. All shipping and Insurance costs to and from the Installation sites are
I
experienced personnel who are rat employed by Cif. car have any
contractual relationship with City.
Included In the purchaea price of the Project, as listed In Exhibit A All
payments to shipping agents and for insurance fees shall be made directly by
Contractor and the City shall make no payments to any firm concerning the
S. ACCEPTANCE TESTING AND ACCEPTANCE
shipment, Installation, and delivery of hardware which Is not a part of this
Agreement and for which exact payments are not described. Contractor shag
g,t -Final System Acceptance' shag mean the latest of the dates on which (a)
be responsible for all arrengemants for the shipment of software, hardware and
a0 phases of the system have been used in Ilya onshe operations for a
1162
e.9
period of at least seven M continuous days without significant error
tonovft successful completion of the seven (T) day System Acceptance
Test described below, and (b) at remaining punch list Items have been
addressed and completed.
Contractor shat follow the System Acceptance Teat Pion (hereinafter
'ATP') developed In consultation with the City containing Acceptance
Criteria that satabtshes teat procedures and test cdOeda, for.evaluatlng
system capabilities, hmctions, and features along with a problem.reporting
matrod'for use in the system testing. The ATP is attached hereto as
Exhibit B.
Upon completion of the Installation of the hardware, Contractor will notily
City that such hardware, as described In Exhibit A, has successfully been
bstafletl. Hardware shat not be deemed to have been accepted by City
until Final System Acceptance.
LKAW .I.%,.^.
6.5
Once all phases of the pro)ect have commenced simultaneous live
operations, a &even (7) day period of acceptance testing for the entire
system, Including all Interfaces and dollvaables provided under this
Agreement, shall begin. System Acceptance Testing shall occur In a IWe
emvkonment. Any significant error of devloWns from the ATP, or the
error, deviation or follum of any pan or component of the System not
manufactured but provided by Contractor, shall be reported to City, and
Contractor shat provide In wptng an action plan for resolution of such
error, dwtadon or failure within two (2) working days. The System
Acceptance Teat shall be deemed completed upon completion of a
continuous swan (7) day period during which no material failure to meet
the criteds set forts In Me ATP or significant errors remain unresolved to
the satisfaction of the Cly. System Acceptance. Test shat not be
unreasonably delayed due to actions of C y or is agents, contractors or
subcontractors not retained by or through Contractor.
A. Failure Prior to Final $,yyg(gm Acceptance. Upon any fanure of the
System Acceptance Teat, Contractor than have an additional
seven (7) days In which make necessary equipment repairs,
replacements andfar software fixes without additional cost to qty,
after which the System Acceptance Teat shall be repeated without
additional coat to Clay. If more than seven (7) days are reasonably
required to make the aforementioned repairs, replacement$ or
software axes, Contractor shall provide a written action plan Met
Includes a timeline for resolution based on Ma scope of work
Involved, and.City may authorize a longer rep* or resolution
o c�
period In coding. Panora a< the System m rsfoat or euxead a
second System Acceptltrtoe Test, or failure to provide seven (7)
days of continuous live operation without etgniticant arras after any
addtlonai System Acceptance Test, dtati consWAO a talkae tp
euamasfuny complete Contractors obligations under ibis
Agreement and Contractor shall be considered in default of a
material obligation. qty shah be entitled to a refund of the full
amcunt of the fees pall for Contrac0ora senicas. City $bell abo
bp wood tD full refunri software, hardware and QVW
system comparems Purchaasedainy prasuant to this; Agreemartt that Is
deemed unusable by the City. Any removal of the system w@ be at
Contractors cola cost and expense.
B. Fatyl„reARer Ft. net &v$tam Conceder and qty agree
that upon system feSlure, time u of to essence for necessary
system equipment rapahs of replacements, amt time Is of the
essence for addressing any software detects which cause tallures
classified as Severity Level Ono and Seventy Level Two, below.
Upon any fanure of the System or lts hardware or software
components, the Warranty pmhdebns of Exhfift A'and Section 25
of ft Agreement shall apply. During the warranty period, If
hardware or equipment pumnasa under this Ageament from
Contractor than fA Contractor shelf repair or replace the hodwam
or equipment within swan (7) wodit days for ON but Sevedy
Level One failures. In the event of a Severity Level One hardware
or equipment f fl ur% repair an id'repiecement shall occur xAWn 24
hours of notfketion of such faHaae to Contradict by M. If
fallura Is due to a software defect of failure, the 14"W" ha•
Contractor response and defer# resolution bebw shall apply.
t.. Savedy level One (Crd WX Failure that causes an
Intersection to.be In flesh or dark, orfenase of safety features
such ere emergency vehicle preemption or railroad
preemption. In the went of a Severity, Leval Oro failure,
Contractor response shah be- kanodteh, and Contractor
shelf provide a fir solution or workaround within 24 tours of
ratification of wah failure to Contractor by qty.
2. Severity Level Two (HIgt*- Failure or bug M systern that
results in dogradalion of ttatto signal ax*d and
communication system function to a mpdarate m aartdus
dogma under normal or mawrlable operating conditlane.
Sevady, Leval Two falhnes shall include but are not limited
to failure or severe degradation of cocrdinatton belwean
bdersectona, Wmmunlcatat between the central system at
City Hag and the field elements. and fie ability to upload and
download data to the abnitlr demonstrahad as part of the
ATP. In the event of a Seventy Level Two fanure.
Contractor shall respond,whit a..wctmn plan of action to
address the failure wtHn live (5) business days of
notitratlon by City. Contractor shat provide a Ox of solution
for any Level Two failure within no later than forty-five (45)
calendar days of notification of failure by Clty.
3. Severity Level Three (Moderate to Low): Failure or bug In
system that creates aesthetic or user preference Issues,
unrelated to the operation of the system. Severity Level
Three Issues shaft be addressed through regular system
upgrade releases on an as- needed basis.
RESPONSIBILITY FOR DAMAGES OR INJVRY
7.1 Cty and all officers, employees and representatives thereof shall not be
responsible In any manner for any loss of damage to any of the materials
or other things used or employed In performing the Project or for Injury to
or death of any person as a result of Contractor's performance of the
saMoss required hereunder, or for damage to property from any cause
arising from the Performance of the Project by Contractor, or Its
subconcontractors, or its workers, or anyone employed by either of them.
7.2 Contractor shall be responsible for any liability Imposed by law and for
Injuries to or death of any person or damage to property resulting from
defects, obstructions or from any cause arising from Contractor's work on
the Project, or the work of any subcontractor or supplier selected by the
Contractor.
7.3 Contractor shall Indemniy, . hold harmless, end defend City. Its officers
and employees from and against: (1) any and all loss, damages, liability,
claims, allegations of liability, suits, costs and expenses for damages of
any nature whatsoever, Including, but not limited to, bodily injury, death,
personal Injury, property damage, or any other clalms arising from any
and all acts or omissions of Contractor, Its employees, agents or
subcontractors In the performance of services or work conducted or
performed pursuant to this Agreement (2) use of improper materials In
perfonntng this Project Including, without limitation, defects In
workmanship or materials and/or design defects; and /or (3) any and all
claims asserted by Contractors subconcontredors or suppliers on the
Project, and shall include reasonable attorneys' foes and all other costs
Incurred In defending any such claim. Contractors liability In this
Subsection shall be limited to the maximurm amount of Its Insurance
coverage for claims arising out non - negligent and non4nientlonal acts
performed under this Agreement. Contractor shall not be held responsible
for consequential or spacial damages, or claims made to City for such
consequential or special damages. Nothing herein shall require
Contractor to Indemnify City from the sole negligence or willful misconduct
of Cly, Its officers or employees.
laWugdual Property Indemnity - Contractor shat defend, Indemnify and
hold City, Us agents, officers, representatives, employees and City
Council, boards and commissions harmless from any proceeding brought
against City for any Intentional or unintentlonal violation of the Intellectual
Q U
property rights of any third party with respect to equipment and software
deliverables purchased in this Agreement This Indamri fication shall
Include, but Is not limited to, Infnngemsrtt of any United. States' letters
Contractor's Provided under this Agreement, contained In
The City agrees to keep confidential all material and documentation
relating to the Software and any modification thereto, to the axterd that
such materials are not subject to disclosure under the California Public
Records Act or Freedom of Information Act The Ctly will not make
available or distribute any program code or descripilon associated wi with
!cons® System In any farts whatsoever to third parties,
written approval of Contractor.
7A Contractor shall perform all Project work In a manner to minlmize public
Inconvenience and possible hazani, to restore otter work &rase to their
cdgMel condition and former usefulness sa scan aspossible, and to prated
publle and private Property. Contractor shall perform work as $Pacified U .
Exhibit A to limit Impacts to traffic during the system lnstalladon period.
Contractor shag be liable for any private or public props" damaged during
the performance of the Project work
7.5 Section 7.10 off the State Standard control edOcatio In the Iaccordance st edition of
the yfork A a Tramio Control - Handbook (WATCH), as published. by
Building News, Inc.
if necessary, traffic control plans for field work will be provided by City, or
with two weeks prior written notice, by Contractor. Traffic control services
to the City separat from monthly progress payments. 0rtd wtl be billed
At the request of the City, the Contractor shall submit to the Engineer a
traffic control plan and detour plan for each street and sidewalk within the
project area. The Contractor shall be responsible for processing and
obtaining approval of a be fic control plan from the Cltys Traffic Engineer.
The Oontrador shall adhere to the conditions of the !raffia control Plan:
Traffic control plans shot be prepared, signed, and sealed by a California
licensed Ci�AI Engineer or Traffic Engineer, as directed by the City Traffic
Engineer, and conform to the provisions of the WORK ARP& TRAFFld
¢L.HANDSOOK (W A.T.CJq, Latest Edition.
Traffic control and datours shall at a minimum most the following
requirements:
A. Emergency vehicle access shall be maintained at all times...
. a. The locations and wordings of all barricades, signs, detneatore,
lights, warning devices, parking restdctons, and any other
required detats $hall ensure thavall pedestrlen, and vehicular
traffic will be handled In a safe manner with a minimum of
Inconvenience to the public.
C. All advanced warning sign Installations shall be reflectorized
and/or lighted.
Traffic signal system shutdown or planned 'red flesh' shag be limited to 4
hour periods between the hours of 9:00 AM and 3:00 PM on weekdays
(Monday through Thursday), excoPt as authorzed by the Engineer.
'STOP AHEAD' and "STOP" signs shall be furnished by the contractor and
shall conform to the provisions In Section 12 -3.06, 'Construction Area
Signs," of the State Standard Specifications except that the base material
for the signs shall not be plywood, Two 'STOP AHEAD- signs and Iwo
STOP' signs shall be placed for each direction of traffic. Locations of the
signs shall be per the WATCH manual.
7.6 Nothing In this section shag be construed as authorWng any award of
attorneys fees in any action to enforce the terms of this Agreement, except
to the extend provided In Section 7.3 above.
7.7 The rights and obfigations set forth In this Section shall survive the
termination of this Agreement
8. INDEPENDENT CONTRACTOR
City has retained Contractor as an Independent contractor and neither
Contractor nor its employees, nor any of b subcontractors, are to be considered
employees of the _City. The manner and means of conducting the work are
under the control of Contractor, except to the extent they are limited by statute,
rule or regulation and the express terms of this Agreement No civil service
status or other right of employment shag accrue to Contractor or Its employees.
9. COOPERATION
Contractor agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have Jurisdiction or
Interest in the work to be performed. City agrees to cooperate with the
Contractor on the Protect.
10. INSURANCE
Without limiting Contractors indemnification of City, and odor tp commenc�maM
Of work Contractor $hall obtain, provide and maintain at Its own expense during
the term of this Agreement a Policy or policies of liability Insurance of the type
and amounts described below and In a forth satisfactory to City.
A. CeM9cetes o1 ( nsurance Contractor shall provide certificates of
Insurance with original endorsements to City as evidence of the Insurance
coverage required herein. Insurance certificates must be approved by
1 c
Clty'a Risk Manager prior to commencement of parformanoa or lesuanca
of any permit or performance of any wont. Current certification of
Insurance shall be kept on flle with City at all times during the term of this
Agreement
B. attlitgu8. A person authorized by the'Insufer to bind coverage on Its
behalf shall sign cartiflWtbn of all required pollcles.
C. A e Insurers. All Insurance pollcles shall be Issued by an
Insurance company currently authorized by the Insurance Commissioner
to transact business of Insurance in the State of CaVomia, with an
assigned policyholders' Rating of 'A (or higher) and Financial Size
Category Class VII (or larger) In accordance with the latest edition of
Sears Key Rating Guide, unless otherwise approved by the Citya Risk
Manager.
• ,4,:,: i I: II:If
L Who rare' cgZattl aill Coverage. Contractor shall maklteb}
Workers' Compensation Insurance and Employers Llebliiry,
Insurance for his or her employees In accordance with -the laws of
the State of California. In addition, Contractor shall require each
subcontractor to similarly maintain Wodte a Compensation
Insurance and Employees Liability Insurance In accordance with
the laws of the State of Califomie for all of the subcontractors
employees. Any notice of cancellation or norrenawal of all
Workers' Compensation'pogdes must be receMad by Cry at Issat
thirty (30) calendar days (10 calendar days written notice of non-
payment of preMum) prior to such change. The insurer shag agree
to waive all rights of subrogation against Cfy, as omoers, agents,
employees and volunteers for losses arising from work performed
by Contractor far City.
II. •enemi rsbJiity Drees. Contractor shall maintain commercial
general gabllliy Insurance In an amount not less than two million
dollars ($2,000,000) per occurrence for bodily Injury, personal
Injury, and property damage. Including without llm islon,
- contractual liability. If commerelal general Ilabliy, Insurance or
other form with a general aggregate limit Is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement or the general aggregate flrit shag be at
least twice the required occurrence Ilmit
111. • Automobile LlabiJJjy, Coverage. Contractor shall maintain
automobile Insurance covering bodily Injury and property damage
for all activities of the Contractor arising out of or In connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non owned or ranted vehicles. In an amount not
lase than one million dollars ($1,000,000) combined single limit for
each occurrenco. .
10
)in. cyneas LiebillN Caverece. Contractor shall maintain insurance
covering axeea6 Ilablihy In the amount of nine million dollars
($9,000,000) for all activities of the Contractor arising out of or in
connection with work to be performed under this Agreement,
E. Endorsements. Each general liability and automobile liability Insurance
policy shall be endorsed with the following speolAe language:
I. The City, he elected or appointed officers, officiate, employees,
agents and volunteers are to be covered as addltlonal insureds
with respect to liability arising out of work performed by or on behalf
of the Contractor.
R. This policy shall be considered primary Insurance as respects to
City, Its elected or appointed officers, officials, employees, agents
and volunteers as respects to a0 claims, losses, or liability arising
directly or Indirectly from the Contractors operations or services
provided to City. Any Insurance maintained by City, Including any
set- Insured retention City may have, shall be considered excess
Insurance only and not contributory with the Insurance provided
hereunder.
In. This Insurance shall act for each Insured and additional Insured as
though a separate policy had been written lot each, except with
respect to the limits of liability of the insuring company.
Iv. The Insurer waives all rights of subrogation against City. Its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting Omvwdns of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The Insurance provided by this policy shall not be suspended,
voided, canceled, or reduced In coverage or In Pmlts, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) written notice has been
received by City. - F. 77me(y No((ga of Clams. Contractor shall give City prompt and timely
notice of otalm made or suit instituted arising out of or resulting from
Contractors performance under this Contract.
G. Addefonal Insurance. Contractor shall also procure and maintain, at its
own cost and expense, any additional Wide of insurance, which In Its own
Judgment may be necessary for its proper protection and prosecution of
the work.
11. BONDING
11
Contractor shall obtain, provide and maintain at Its own expense dudrg the term
of this Contract a Labor and Materials Payment Bond In the amount of one
hundred percent (100%) of the total amount to be paid Contractor ae set forth in
this Agreement and in the form attached hereto as Exhibit 8 which B
Incorporated herein by this reference; and a Faithful Performance Bond In the
amount of one hundred percent (100%) of the total amount to be paid Contractor
as set forth In this Agreement In the form attached hereto as Exhibits C which is
Incorporated herein by this reference.
The Latin and Materials Payment Bond and FaflMul Performance, Bond shag be
Issued. by an Insurance oryoribma n or surety (1) currently authorized by the
Insurance Commissioner to transact business of Insurance In the State of
California, (2) listed as an acceptable surety In the latest revision of the Federal
Register Circular 670, and (3) assigned a PoPcyholdere' Reting A (or higher) and
Financial Size Category Class VII (or larger) In accordance with the latest edition of
Bests Kav stns ow, - =itv.
The Contractor shall deliver, concuren0y with execution of this Agreement the
Labor and Materials Payment Bond and FaIMA Performance Bond, a cartlfted
copy of the 'Certificate of Authority' of the Insurer or Surety Issued by the
Insurance Commissioner, which auMorizes the Insurer or Surety to transact
surety Insurance In the Sate of California.
ik ml[7klaT`PML` r_L #'7
Pursuant to the applicable provisions of the Labor Code of the State of Cast ntla,
not lass than the general preve6ing rate of per diem wages Including legal holidays
and overtime work for each craft or We of worlonan needed to execute the vrorik
contemplated under the Agreement shall be paid to all v4odonen employed on the
work to be done according to the Agreement by the Contractor and any
subcontractor. In accordance with the California Labor Code (Sections 1770 at
seq.), the Director of Industrial Relations has ascertained the general prevailing
rate of per diem wages In the loeaAty In which the work is to be patformed for each
craft clasaiticatlon, or type of workmen or mechanic needed to execute the
Agreement. A copy of sold determination Is available by calling the prevailing
wage hotline number (416) 703.4774, and tequeaftng.ons from the Depatbnant of
Industrial Relations. The Contractor Is requited to obtain the wage determinations
from the Department of Industrial Relations and post at rite job site the prevaiing
rate or per diem wages, it shall be the obligation of the Contractor of arty
subcontractor under hirNher to comply with all Stab of Calffomla labor laws, rules
and reputations and the pardes agree 0tat the qty shall not.be -Pablo for any
violation thereof.
13. SUBCONTRACTING
City and Contractor agree that subcontractors hey be used to complete the work
outlined In the Scope of Services provided the CvftrAor obtabai City approval
In writing prior to the subcontractor pertorming any work: Contractor shall be
fully responsible to City for ail acts and omissions of the subcon0actore. Nothing
In this Contract shall create any oomractual retaPonship between City and
subcontractor nor shall it create any obligation on the part of City to pay at to see
12
to the payment of any monles due to any such subcontractor other than as
otherwise required by law.
14, WITHHOLDINGS
City may withhold payment to Contractor of any disputed sums until satisfaction
of the dispute with respect to such payment. Such wpluwlding shag not be
deemed to constitute a failure to pay according to the terms of this Contract.
Contractor shaltnot discontinue work as a result of such withholding. Contractor
shall have an Immediate right to appeal to the City Manager or his/her designee
with rasped to such disputed sums. Contractor shall be entitled to receive
Interest on any withheld sums at the rate of realm that City earned on Its
investments during the time period, from the date of withholding of any amounts
found to have been Improperly withheld.
15. CONFLICTS OF INTEREST
The Contractor or Its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the 'Act'), which (1) requires such
persons to disclose any financial Interest that may foreseeably be materially
affected by the work pertormed under this Contract, and (2) prohibits such
persons
effect king,interesrrticipating In making, decisions that will foreseeably
laly
O subject to the Act Contractor shall conform to all requirements of the Act
Failure to do so constitutes a material breach and Is grounds for Immediate
termination of this Contract by City. Contractor shall Indemnify and hold
harmless City for any and all claims for damages resufing from Contractor's
violation of this Section.
16. NOTICES
All noticea, demands, requests or approvals to be given under the tars of this
Agreement shall be given In writing, to City by Contractor and conclusively shall
be deemed served when delivered personally, or on the third business day afar
the deposit thereof In the United States mall, postage prepaid, first -class mall,
addressed as hereinafter provided. All notices, demands, requests or approvals
from Contractor to City shall be addressed to City at:
Attn: Anthony Brine
Public Works Department
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92660
Phone: 949644 -3329
Fax 949.644 -3318
All notices, demands, requests or approvals from City to Contractor shall be
addressed to Contractor at
Attention: Jason Hann
Econolito Control Products, Inc.
3360 E. La Palma Avo.
Anaheim, CA 92WO
Phone: (719) 471 -98ee eA 360
Fax (719) 471.9063 ,
17., TERMINATION
JQM1%atigA.A'f Cause • In the event that either party falls or refuses to Perform
any of the provisions of Oft Agreement at the time and In the manner required,
that party shall be deemed In default In the performance of this Agreement. If
such default Is not cured within a period, of five (5) calendar days, or O more than
fire (5) calendar days are reasonably required to cure y1a default and the
defaulting party, falls to give adequate assurance of due performance within five
(5) calendar days after receipt of written notice of defauk sped fying the nature
of such default and the steps necessary to cure such default the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party
written nonce thereof.
j�ermination ,,, ( out sae - Notwithstanding the above provisions, City shag
have the right at its sole discre8on and without muse, of terminating this
Agreement at any time by giving seven (7) calendar days prior written' notice to
Contractor, In the event of termination under this Section, City shell pay
Contractor for services satisfactorily performed and costs Incurred In the
performance of such services up to the effective date of termination for which
Contractor has not previously been paid. In the event of termination under this
Section, City shall also pay Contractor for all software, hardware, and equipment
delivered to City site under this Agreement that City deems usable.
18. COMPLIANCE WITH ALL LAWS
Contractor shag at Its own cost and expense comply wlth all stetufas, ordinances,
regulations and requirements of all governmental antlges, Including federal, state,
county or municipal, whether now in force or heleNatter enacted
19. WAIVER
A waiver by City of any term, covenard, or condition in the Agreement shall not
be deemed to be a waiver of any subsequent breach of the same or any other
term, covenant oroo difloru
20. INTEGRATED AGREEMENT
This Agreement represents the full and complete understanding of every kind or
nature whatsbever between the parties hereto, and all prefmbnary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
Agreement or implied covenant III be held to vary the . provisions herein,
21. CONFLICTS OR INCONSISTENCIES -
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In the event there are any conflicts or Inconsistencies between this Agreement
and the Scope of Services or product warranties, Including Software and
Hardware warranties contained In the Scope of Services or delivered to City after
execution of this Agreement, the terms of this Agreement shall govern.
22. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Contractor and City and approved as to form by the City
Attorney.
23. EFFECT OF CONTRACTOR'S EXECUTION
Execution of this Agreement by Contractor is a representation that Contractor
has visited the Project She, has become familiar with the local conditions under
which the work Is to be performed, and has taken Into consideration these
factors In submitting Its Project Proposal and Scope of Work
24. CONTROLUNO LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction In the County of Orange.
25. INTERPRETATION
The terms of this Agreement shall be construed In accordance with the meaning
of the language used and shall not be construed for or against either perry by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
26. WARRANTY
Contractor warants to City that all software and equipment to be delivered
hereunder will be free from defects In material or workmanship and will be of the
kind and quality designated or specifled by Contractor in Exhibit A. The warranty
shall apply only to defects appearing within one year from the date of Final
System Acceptance of Project by City for software products, two years from the
date of Final System Acceptance by City for hardware products not
manufactured by the Contractor, and two years from the date of Final System
Acceptance by City for hardware products manufactured by Contractor. If
Contractor installs the equipment and software, or supplies technical directions
of Installation by cDmrs" the warranty period shall run from the date of Final
System Acceptance by City, provided same Is not unreasonably delayed by City.
If Contractor- manufactured equipment delivered hereunder does not meet the
above warranty, and If City promptly nodfles Contractor in writing, Contractor
shall thereupon correct any defect, Including non- conformance with the
specifications, either (at Its option) by repairing any defective or damaged parts
of the equipment, or by making available any necessary replacement parts,
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delivered and installed without additional charge to City within seven (7) working
days, unless the failure is of Severity Level One, as defined by Section S.b(B) of
this Agreement City will realm the defective product to Contractor, at
Contractor's expense. Contractor shall repair or replace the defeo0ve Rom and
return it to City, shipping costs prepaid. Contactor shall perform anynecessary
diagnostic work, software, hardware and equipment removal, repair,
replacement, cartificallon. and installation at no cost to the City durfng the
warranty period, using Contractor's equipment If loons® software, or other
proprietary software products licensed by Contractor and delivered hereunder as
part of the System, do not meet the above warranty, the Contractor response
and resolution times specl lod In Section SgB) of this Agreement shall apply.
The foregoing warranty Is exclust" and In lieu of all other warranties, whather
written, oral, imphad or statutory, Contractor does not warrant any equipment of
other manufacture designated by City.
Contractor shall supply to City In a timely manner any software revisions or,
upgrades of the standard loons® software modules to correct •bugs' or
deficiencies, which would appear within one (1) year from the date of Final
System Acceptance of the standard loons® traffic, management system.
27. MAINTENANCE
City reserves the right but Is not obligated to, enter a Maintenance Agreement
with Contractor for the System at any time during the warranty period. If City
provides Contractor of notice of Intent to enter a Maintenance Agreement upon
expbation of Contractors one (1) year warranty within thirty (30) days of the
expiration of such warranty, City shall have the option to enter a five (5) year
Maintenance Agreement with Contractor for maintenance of the System at the
coat of $12,500 per year Me Maintenance Fee). The Maintenance Agreement
shall take effect on the day the software warranty expires CSOttwam Warranty
Explrstion Date'.) if City exa cleei Its option to enter the live -year Maintenance
'Agreement, the annual fee of $12,600 shall be due each year on or before that
year's calendar date which corresponds to the day and month of the Software
Warranty Expiration Date.
If City does not exercise the option to enter the five year Maintenance
Agreement, Contractors technical support and service provided beyond the
Will warranty periods shall be subject to applicable hourly support rates plus
travel and per diem cost at time support Is provided.
28. REPRESENTATIONS
N2DJ*DQiimwt ECONOLITE represents that to the best of its knowledge the
technology embodied in the products sold herein does not infringe upon a United
States patent or United States, copyright In affect as of the Effecttva Data.
Authg(lpc. Each party represents as follows: ((a) that d has full power and
authority to execute, deliver and perform its oWigatione underthls Agreement; (b)
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that there are no so". proceedings or Investigations, pending or, to the best
of each part's knowledge, threatened against such party which may In any
manner whatsoever materially affed the enforceability of title Agreement or the
rights, duties and obllgations of the partes hereunder, and (c) that the execution,
delivery and performance of this Agreement will not constitute a breach or
default under any agreement, law or court order under which such party Is a
party or may be. bound or affected by or which may affect the rights, dudes and
obligations hereunder.
No Other Reoresenlatlons. Each party acknowledges and agrees that It Is
relying on no representation of the other party except as expressly set forth
herein.
29. LICENSES
The Contractor grants to the City tot exeuste use in the City a fatty paid non-
exclusive, non - transferable Icons® software license for (1) Communications
server, (1) FlldApplfcatbno server, (1) Terminal services server and workstation
computers. The Communications Server license covers up to 250 Intersections
operating from a single communleatkma server computer (expandable beyond
250 Intersections with additional software licenses and hardware). The City $hall
be entitled to:
a. use the licensed programs but only In machine-readable form on licensed
✓Computers.
b. use the support material supplied but only as required to support the use
of the Licensed programs
c. make only as many back up copies of the Licensed programs In machine
readable form as required to support the use of the Licensed programs
on each computer. All beck up copies must Include the copyright notice
In the original forth as It appears on the licensed programs.
The City may not copy, modlty, adept, merge, disassemble, decomplio or
distribute the software, Its documentation or create derivative works based upon
the software. None of the support material In human readable form Included with
the Licensed programs may be copled in any way. The City may print any screen
the software will allow, however, no copyright notices may be removed from the
printing,
The Licensed programs and support material Included with this Agreement are
confidential information that Is the property of the Contractor. The Licensed
programs, program concepts, or any of the support materials shag not be made
available to any other party or organization without the written consent of the
Contractor.
Title to all intellectual property rights Including patent, trademark, copyright and
trade secret rights and title to all ownership rights and all copies of and all media
bearing the Licensed programs, support materials and program concept shall
remain sole property of the Contractor.
30. CONFIDENTIAL INFORMATION.
n. In the performance of this Agreement or In
cordemp >bn thereof, the parties and their respective employees and agents
may have access to private or confidential Information owned or controlled by the
other party and such Information may contaln proprietary detab and dredosurea.
All Information and data identified in writing as proprietary or confidential by
either parry ('Confidential Informaion') and so acquired by the other party or Its
employees or egorffs under this Agreement or In contemplation thereof shag be
and shall remain the disclosing partys exclusive property. The recipient of
Confidential Information shall use all reasonable of ria (which in any avant shalt
not be less than the efforts the recipient takes to ensure the confidandelity of he
own •proprietary and other confidential Information) to keep, and have its
employees and agents keep, any and all Confidential Information confidefitial,
and 'shag not copy, or publish or dleclose It to others, nor authorize Its
employees, agents or anyone else to copy or dtecloss it to others, wigwut the
disclosing partys written approval; nor shsit the rodplent make use of the
Confidential Information except for the purposes of executing go obligations
hereunder; and (except as provided for heraln) shell return the Confidential
Information and data tb the fiwt party at Its request The City's duty to maintain
confidentiality as described hereunder shag be subject to the laws of the State of
California. '
Excluded Information: The-foregoing conditions will not apply to Information or
data which is, or-which becomes generally known to the public by publication or
.. by any means other than a breach of duty on the part of the recipient hereunder,
As Information previously known to the recipient, W Information Independently
" developed by or for the reciplent or Is Infonnadon generally released by the
owning party without rostrlttlon.
rant t Igtunctiva Relief, Because of the unique nature of the Confidential
Information, the parties some that each patty may $utter Irreparable harm M the
event that the other party falls to comply with any of Its obligations under this
Ankle, and that.monstary.damages may be Inadequate to compensate either
party for such breach, Accordingly, the pestles agree that either party wig, in
addigoa to any other remedies available to it at law or In equity, be angled to
'seek Injunctive relief to enforce the terms of this Article.
31. - SOFTWARE UPDATES AND ENHANCEMENTS
Software enhancements or hour features added to fcons through new system
development for other agencies, .or. as part of the Contrectois ongoing research
and development shall be offered to the 04' at a *ad, quoted pdce. The offer
shall remain firm tot 90 days from the date of the offer.
32. ASSIGNMENT '
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This Agreement shalt riot be assigned by any party, or any party substituted,
without pripi of the.0 ty and the Contractor.
33. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemedtan original and all of which shall constitute one and the some
Instrument
34. OTHER MATTERS .
Sevembil In the event any of the provisidns of this Agreement shall, for any
reason, be hold void or unenforceable, the remaining provisions shall remain In
full effect and shall control.
IWIW . Any provisions of this Agreement prohlbited by the law of any state
shag, as to said state, be ineffective to the extern of such prohibition without
Invalidating the remaining provisions of this Agreement
Except as otherwise provided In this
Agreement, no provision of th Agreement Is Intended, nor shall be Interpreted,
to provide or create any third party beneficiary rights or any other rights of any
kind in any affiliate or subsidiary, and all provisions hereof shall be personal
solely between the parries hereto,
Heilddincs' Article and Section headings are included solely for convenience, are
not to be consic3red a pad of this Agreement nor are they Intended to be full and
accurate descriptions of the contents thereof.
IN WRNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:, CITY OF RT B CH,
A ;dward IC atW
B.
Aaron C. Harp, r
Assis tant Chy Anomey crr for the City of Newport Beach
for the City of Newport Beach `' s
ATTEST:
B By
LaVonne Harldeea,. N a .pl __s_. ,
City Clerk Tltie: Senior Vice President
BYNadVe: of rMnn
Title: Assistant Secretary
Attachments: Exhibit A- Scope of Services
.Fadtiblt 8 — System Acceptance Test Plan
Exhibit C - Labor and Materials Payment Bond
Exhibft D - Faithful Performance Bond
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