HomeMy WebLinkAboutC-3841(A) - PSA for Wide Area Wireless Network Implementation - Utilities Department and Central Library Sites/Fire Station 3 SitesPROFESSIONAL SERVICES AGREEMENT WITH
EMBEE TECHNOLOGIES
FOR WIDE AREA WIRELESS NETWORK IMPLEMENTATION — UTILITIES
DEPARTMENT & CENTRAL LIBRARY SITES/FIRE STATION 3 SITES
THIS AGREEMENT is made and entered into as of this 15th day of May, 2008, by and
between the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"), and
EMBEE TECHNOLOGIES a California Corporation whose address is 16592 Millikan
Avenue Irvine, California, 92606("Consultant"), 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 is planning to implement Wide Area Network upgrades between the Utilities
Department and Central Library sites/Fire Station 3 sites.
C. City desires to engage Consultant to provide necessary hardware, licensing and
installation necessary to provide wireless network solution between the Utilities
Department and Central Library/Fire Station 3 sites ("Project").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member[s] of Consultant for purposes of Project, shall be Rob
Clement
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 15th day of August, 2008, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The
City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due
to causes beyond Consultant's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable
time extensions for unforeseeable delays that are beyond Consultant's
control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by either telephone, fax, hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services lump sum provisions of this Section and
the Schedule of Billing Rates attached hereto as Exhibit A and incorporated
herein by reference. Consultant's compensation for all work performed in
accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed Eighty -Three Thousand Four Hundred
Sixty -Eight Dollars and 10/100 ($83,468.10) without prior written authorization
from City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the services
performed and/or the specific task in the Scope of Services to which it
relates, the date the services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any reimbursable
expenditures. City shall pay Consultant no later than thirty (30) days after
approval of the monthly invoice by City staff.
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4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and/or other costs and/or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit A.
5. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated ROB CLEMENT to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
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This Agreement will be administered by the Administrative Services
Department. MIKE WOJCIECHOWSKI shall be the Project Administrator and
shall have the authority to act for City under this Agreement. The Project
Administrator or his/her authorized representative shall represent City in all
matters pertaining to the services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner commensurate
with community professional standards. All services shall be performed
by qualified and experienced personnel who are not employed by City, nor
have any contractual relationship with City. By delivery of completed
work, Consultant certifies that the work conforms to the requirements of
this Agreement and all applicable federal, state and local laws and the
professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's work
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promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties") from and
against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes
of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses
(including, without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever (individually, a Claim; collectively, "Claims"),
which may arise from or in any manner relate (directly or indirectly) to any breach
of the terms and conditions of this Agreement, any work performed or services
provided under this Agreement including, without limitation, defects in
workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent and/or willful acts, errors and/or omissions of
Consultant, its principals, officers, agents, employees, vendors, suppliers,
consultants, subcontractors, anyone employed directly or indirectly by any of
them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
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Consultant agrees to work
Project Administrator and
interest in the work to be
Consultant on the Project.
12. CITY POLICY
closely and cooperate fully with City's designated
any other agencies that may have jurisdiction or
performed. City agrees to cooperate with the
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and/or his/her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work, Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
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Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non -renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability 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 limitation,
contractual liability. If commercial general liability 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 limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than two million dollars ($2,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which covers
the services to be performed in connection with this Agreement in
the minimum amount of two million dollars ($2,000,000).
E. T dorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self-insured retention City may have, shall be considered excess
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15.
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for 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 provisions 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 limits, 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. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint -venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50%) or more of the voting power, or twenty-five percent (25%) or more
of the assets of the corporation, partnership orjoint-venture.
16. SUBCONTRACTING
:a
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the
Consultant under this Agreement will be permitted only with the express written
consent of City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
22. RECORDS
M
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his/her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and/or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
Me
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first-class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Consultant to City shall be addressed to City at:
Attn:
Administrative Services Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949-644-3127
Fax: 949-644-3329
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Rob Clement
16592 Millikan Avenue
Irvine, California 92606
Phone: (949) 266-1700
Fax: (949) 435-1595
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, and thereafter diligently take steps to cure
the default, the non -defaulting party may terminate the Agreement forthwith by
giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
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termination under this Section, City shall pay Consultant for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information
developed or accumulated in the performance of this Agreement, whether in draft
or final form.
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
33. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction which
might otherwise apply.
34. AMENDMENTS
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This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
35. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
36. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
37. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
1
City Attorney
for the City of Newport Beach
ATTEST:
By
LaVonne Harkless,
City Clerk ..,
Attachments
CITY O EWPOR B ACH,
A MMua 6-�or do
By:
Mayor
for the City of Newport Beach
CONSULTANT:
By: y:
(Corporate Offi r)
Title: PL -e S, Jen f -
Print Name: �• eh
(Financial Officer)
Title:
Print Name:
Exhibit A — Scope of Services
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Embee Technologies
16592 Millikan Ave
Irvine, ca. 92606
embee P 949-266-1700 F.949-435-1595
To:
of Newport Beach Price Quote 5/11/2008
Box 1768 Quote Number
sport Beach, ca. 92659-8915 The City of Newport Beach. Fire Department Public Safety Link 3512
1
BP5530BHC-2DD
Motorola P2P 54600 300 meg radio link
$17,674.80
$17,674.80
2
SPD3-5.2
3' Dishes
$1,490.00
$2,980.00
2
RD -3
Radome T for Dish
$390.00
$780.00
1
Shipping
Shipping
$440.00
$440.00
Labor to install radio, conduit system, power, data and
24
Labor
grounding. At Fire Department site
$65.00
$1,560.00
1
Misc Product
Product: conduit, data, surge protector and grounding
$975.00
$975.00
1
Labor
Labor: Set and alignment of radio system.
$2,600.00
$2,600.00
Utilities Yard Installation (Tower)
Labor to install radio, power, data, grounding and surge
16
Labor
protector.
$65.00
$1,040.00
Product: Mast support system for tower, bracketing and bracing
1
Misc Product
supplies, data and grounding.
$1,640.00
$1,640.00
Tower labor to install 1 radio head on tower 190ft above
32
Labor
ground.
$170.00
$5,440.00
s link must be installed at the same time as the proposed link
the Newport Beach Library in order to preserve this pricing
Note: Embee hopes to get a 75 meg link. This is a non line of
sight link. Actual through may vary.
The City of Newport Beach. Fire Department Public Safety Link
Labor Total $10
Product Total $24
7.750%I $1,897.
Extended Total 1 1 $37,027.
(, J, Embee Technologies
16592 Millikan Avenue
Irvine, CA 92606
Phone: Facsimile:
embee h;;' '4— P: 949.266.1700 949.435.1595
PREPARED FOR
City of Newport Beach
PO Box 1768
Newport Beach Ca. 92658-8915
Estimate
ESTIMATE NO.
7415B
DATE
2/6/2008
SALES PERSON
WRC
The acceptance of this estimate is a binding purchase contract between
the undersigned and Embee Technologies, and is subject to Embee
Technologies terms and conditions which appear on the back of this CLIENT SIGNATURE
document. Client warrants that the signature below is that of an
authorized agent.
Page 1
JOB DESCRIPTION
PROJECT NO.
Dragonwave 100 public Liberay
QTY
DESCRIPTION
UNIT PRICE
TOTAL
I
Dragon Air Pair 100
23,969.75
23,969.75T
18 Ghz standard power, 211 dish
FCC Band
1
IDU Install Kit (N America)
1,632.00
1,632.00T
1
FCC license of 18 Hz frequency - 10 year license
3,900.00
3,900.00T
1
Shipping charges
660.00
660.00.
Public Library:
24
Labor: to install Radio, conduit system, power, data and grounding.
65.00
1,560.00
1
Product: conduit, data and grounding.
1,155.00
1,155.00T
I
Labor: Setup and alignment of Radio/System
2,800.00
2,800.00
Utilities Yard installation (Tower):
24
Labor to install Radio, Power, Data and Grounding.
65.00
1,560.00
1
Product: Mast support system for tower, bracketing and bracing
1,325.00
1,325.00T
supplies,data and grounding.
36
Tower Labor to install (1) radio head on tower 140 above ground.
150.00
5,400.00
TOTAL
The acceptance of this estimate is a binding purchase contract between
the undersigned and Embee Technologies, and is subject to Embee
Technologies terms and conditions which appear on the back of this CLIENT SIGNATURE
document. Client warrants that the signature below is that of an
authorized agent.
Page 1
Embee Technologies
16592 Millikan Avenue
Irvine, CA 92606
Phone: Facsimile:
embee'`'''':;`'""`:.' 949.266.1700 949.435.1595
I PREPARED FOR I
City of Newport Beach
PO Box 1768
Newport Beach Ca. 92658-8915
Estimate
ESTIMATE NO.
7415B
DATE
2/6/2008
SALES PERSON
WRC
The acceptance of this estimate is a binding purchase contract between
the undersigned and Embee Technologies, and is subject to Embee
Technologies terms and conditions which appear on the back of this CLIENT SIGNATURE
document. Client warrants that the signature below is that of an
authorized agent.
Page 2
JOB DESCRIPTION
PROJECT NO.
Dragonwave 100 public Liberay
QTY
DESCRIPTION
UNIT PRICE
TOTAL
Sales Tax Rate for Orange County
7.75%
2,478.59
TOTAL $46.440.34
The acceptance of this estimate is a binding purchase contract between
the undersigned and Embee Technologies, and is subject to Embee
Technologies terms and conditions which appear on the back of this CLIENT SIGNATURE
document. Client warrants that the signature below is that of an
authorized agent.
Page 2
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 14
May 27, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Administrative Services Department
Dennis C. Danner, Administrative Services Director
(949) 644 -3123 or ddanner @city.newport- beach.ca.us
Paul Malkemus, Information Technology Manager
(949) 644 -3092 or pmalkemus @city.newport- beach.ca.us
SUBJECT: WAN, Server Virtualization, & Disaster Recovery Implementation Plan
ISSUE:
This Plan is a collaborative multi - departmental project. The core components include
the installation of high bandwidth wireless (microwave) connections between the Central
Library and Utilities Department sites, with a second similar connection between Utilities
Department and Fire Station 3 /Police Department. Both WAN connections are
discussed and recommended (Hubs 1 0) in the Traffic Communication Master Plan and
are part of the overall IT planned strategy to provide increased reliability and higher
bandwidth connections to City remote sites. The Library connection will further facilitate
a plan designed to provide an advanced Disaster Recovery (DR) solution that will rely
primarily upon the use of data replication. Additional redundancy, as well as reducing
the overall existing server foot print and lowering current server total cost of ownership
(TCO), will be provided through server virtualization. Both Hubs (1 0) will be utilized to
implement the Traffic Communication Master Plan.
RECOMMENDATION:
1) Approve a budget amendment to transfer funds from revenue account 0630 -5864 to
0630 -8030 ($37,177.39). These funds were the result of a class action lawsuit against
Microsoft Corporation. The remaining funds required to implement the balance of the
plan ($179,621.61) are available in the current fiscal year in the various participating
department budgets.
2) Approve a professional services agreement with Embee Technologies for hardware
and services to provide wireless radio Wide Area Network (WAN) connections between
the Central Library and Utilities Department sites ($46,440.34) and between Fire Station
3 and Utilities Department sites ($37,027.76). Total costs of these two aspects of the
project are $83,468.10.
WAN, Server Virtualization, & Disaster Recovery Implementation Plan
May 27, 2008
Page 2
DISCUSSION:
Background
The City's dependence on access to electronically stored information and electronic
communications has increased by orders of magnitude. To keep up with this ever
increasing demand, the IT Division has continually upgraded capacity by replacing the
user workstations, servers that process and store information, local area networks
(LANs) and wide area networks (WANs).
Currently the connections to the Central Library and Fire Station #3 /Police Department
are leased T -1 circuits provided by AT &T that cost approximately $3,900 to lease on an
annual basis. These leased T -1 circuits provide 1.5 Mb /sec connections to City Hall. In
contrast, the City LANs provide connectivity to resources at either 100 Mb /sec or 1000
Mb /sec depending upon the equipment and location. Lower bandwidths (speed)
provided by the existing T -1 circuits are adversely impacting these locations. The
volume of network traffic has dramatically increased due to increased reliance on
shared network applications such as file sharing, e-mail, voice mail and especially
Internet access. Additional bandwidth will also be required as part of the City Traffic
Communications Master Plan.
The recent purchase of the Radio Tower at the Utilities Department from Entravision
Communications Corporation provided the City with a unique opportunity to upgrade its
WAN. IT Staff determined the most appropriate solution with regards to cost, reliability,
and performance, is to purchase an FCC licensed microwave system manufactured by
DragonWave of Canada for the Central Library to Utilities Department site, and 300
Mb /sec Motorola unlicensed equipment for the Fire Station 3 to Utilities Department site.
The DragonWave systems provide scalable full duplex (bidirectional) bandwidth from
50Mb /sec to 300 Mb /sec through simple software upgrades, and can be upgraded to as
much as 400 Mb /sec with additional components. There are some line of sight issues
between the Fire Station 3 and Utilities sites, therefore staff recommends implementing
a 300 Mb /sec Motorola system. Based on these line of site issues, anticipated
throughput should be in the 75 Mb /sec range. ,Both connections will provide sufficient
bandwidth for current needs and anticipated growth. Equipment will provide
connections between the Central Library, Fire Station #3 /Police Department and the
Utilities Department site utilizing the City radio tower located at that facility (refer to
attached diagram 1). This will provide access to City Hall via the existing 100 MB
wireless (microwave) connection between the Utilities Department and City Hall. This
connection will be upgraded to 200 Mb /sec in FY 2008 -2009.
Future connections will include Traffic Communication Master Plan Hub Location 4
(Mariners Library/Fire Station #6) and Hub Location 5 (Newport Coast Community
Center). Cox Communications has offered some viable alternatives for providing high
bandwidth solutions to the Newport Coast Community. Center location. Cox has
WAN, Server Virtualization, & Disaster Recovery Implementation Plan
May 27, 2008
Page 3
indicated that they would be able to connect NCCC to the Central Library site and use
the planned connectivity between the Central Library and Utilities Department in order
to provide complete connectivity to City Hall. Line of site surveys indicates that the
Mariners /Fire Station #6 site is an excellent candidate for licensed microwave
connectivity in the future.
In addition to solving the problem of insufficient bandwidth necessary for daily use of
enhanced data services, the proposed WAN upgrade project will allow the IT Division,
Library and Utilities staff to implement critical projects related to information disaster
recovery.
A critical component of the Disaster Recovery (DR) plan is the ability to store copies of
information resources at a location that is protected from all likely disaster scenarios.
The key to any well managed disaster recovery plan includes automated offsite data
storage. The Utilities Department Data Center is located in a secure area that is less
likely to be impacted by naturally occurring disasters. The recently constructed
structure is climate controlled and has alternative power sources.
The implementation of this project will allow staff members to fully develop a disaster
recovery plan designed to use this faster connection to send `copies" of all critical data
and information to components located at the Utilities Department Data Center location
on a daily basis. The primary software component utilizes data replication technology.
This software also facilitates the management of hardware that is required — data
storage devices. Server Virtualization, while reducing the actual number of physical
servers, will also add overall redundancy to the DR plan.
All Library, Utilities Department (including Big Canyon Reservoir), Fire Department and
City Hall data will be protected through the disaster recovery procedures that will be
implemented with this plan. The Fire Department will also be able to take advantage of
the increased bandwidth for network/data redundancy and fire safety personnel training
purposes.
This implementation plan has been developed and discussed with all affected personnel
in Public Works, Utilities, Library, Fire, Police, and Recreation & Senior Services
departments. Fiber optics may present a future option for providing redundancy and.
increased bandwidth to these and other areas of the City network backbone. Currently,
known locations of existing fiber optic cables and conduits are terminated significant
distances from existing City facilities making it a potentially very expensive option.
WAN, Server Virtualization, & Disaster Recovery Implementation Plan
May 27, 2008
Page 4
Project Costs
Library
Wireless WAN 1 Connection — Library to Utilities $46,440
Library Servers $10,132
Library VMWare (server virtualization component) $8,600
Library VMWare (virtualization management) $4,064
Library Located Replication DR $17,063
Library — Utilities Located Replication DR $6,800
(device above is shared by Library/iT/Utilides)
Total Library Cost: .$92,935
City Hall IT
City Hall Servers $10,132
City Hall VMWare (server virtualization component) $8,600
City Hall VMWare (virtualization management) $3,900
City Hall Located Replication DR $27,537
City Hall — Utilities Located Replication DR $6,800
(device above is shared by Library/IT/Uti6ties)
Wireless WAN Connection — Fire Station 3 /PD to Utilities $37,027
Total City Hall IT Cost: $93,966
Utilities Department
Utilities — Big Canyon Reservoir Located Replication DR $17,068
Library — Utilities Located Replication DR $6,800
(device above is shared by Library/iT/UtOities)
Installation & Configuration $6,000
Total Utilities Cost: $29,868
Total Project Cost $216,799
WAN, Server Virtualization, & Disaster Recovery Implementation Plan
May 27, 2008
Page 5
Environmental Review: Not Required
Public Notice: Not Required
Funding Availability: Budget Amendment of unanticipated revenue in the amount of
$37,177.39 and existing budgeted funds.
Prepared by:
Malkemus
nation Technology Manager
Submitted by:
aennis C. Danner
Administrative Services Director
Attachments: Implementation Diagram
Embee Technologies Agreement
Budget Amendment
Inter - departmental WAN. Virtualization. Replication /Disaster Recovery
PROFESSIONAL SERVICES AGREEMENT WITH
EMBEE TECHNOLOGIES
FOR WIDE AREA WIRELESS NETWORK IMPLEMENTATION — UTILITIES
DEPARTMENT & CENTRAL LIBRARY SITES /FIRE STATION 3 SITES
THIS AGREEMENT is made and entered into as of this 15th day of May, 2008, by and
between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and
EMBEE TECHNOLOGIES a California Corporation whose address is 16592 Millikan
Avenue Irvine, California, 92606( "Consultant'), 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 is planning to implement Wide Area Network upgrades between the Utilities
Department and Central Library sites /Fire Station 3 sites.
C. City desires to engage Consultant to provide necessary hardware, licensing and
installation necessary to provide wireless network solution between the Utilities
Department and Central Library/Fire Station 3 sites ( "Project ").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member[s] of Consultant for purposes of Project, shall be Rob
Clement
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 15th day of August, 2008, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services. attached hereto as Exhibit A and incorporated herein by reference. The
City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due
to causes beyond Consultant's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other parry so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable
time extensions for unforeseeable delays that are beyond Consultant's
control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services lump sum provisions of this Section and
the Schedule of Billing Rates attached hereto as Exhibit A and incorporated
herein by reference. Consultant's compensation for all work performed in
accordance with this Agreement, including all reimbursable items and
subconsultant fees, shall not exceed Eighty-Three Thousand Four Hundred
Sixty-Eight Dollars and 10/100 ($83,468.10) without prior written authorization
from City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the services
performed and/or the specific task in the Scope of Services to which it
relates, the date the services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any reimbursable
expenditures. City shall pay Consultant no later than thirty (30) days after
approval of the monthly invoice by City staff.
2
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and/or other costs and/or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit A.
S. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated ROB CLEMENT to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
3
This Agreement will be administered by the Administrative Services
Department. MIKE WOJCIECHOWSKI shall be the Project Administrator and
shall have the authority to act for City under this Agreement. The Project
Administrator or his/her authorized representative shall represent City in all
matters pertaining to the services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner commensurate
with community professional standards. All services shall be performed
by qualified and experienced personnel who are not employed by City, nor
have any contractual relationship with City. By delivery of completed
work, Consultant certifies that the work conforms to the requirements of
this Agreement and all applicable federal, state and local laws and the
professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's work
0
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties ") from and
against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes
of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses
(including, without limitation, attorney's fees, disbursements and court costs) of
every kind and nature whatsoever (individually, a Claim; collectively, "Claims "),
which may arise from or in any manner relate (directly or indirectly) to any breach
of the terms and conditions of this Agreement, any work performed or services
provided under this Agreement including, without limitation, defects in
workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent and /or willful acts, errors and /or omissions of
Consultant, its principals, officers, agents, employees, vendors, suppliers,
consultants, subcontractors, anyone employed directly or indirectly by any of
them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
5
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work. Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
0
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (90 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability 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 limitation,
contractual liability. If commercial general liability 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 limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than two million dollars ($2,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which covers
the services to be performed in connection with this Agreement in
the minimum amount of two million dollars ($2,000,000).
E. Tndorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self - insured retention City may have, shall be considered excess
7
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for 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 provisions 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 limits, 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.
Timelv Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more
of the assets of the corporation, partnership orjoint- venture.
16. SUBCONTRACTING
10
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the
Consultant under this Agreement will be permitted only with the express written
consent of City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. CONFIDENTIALITY
Ail Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
®7Xdi7Nam
Ir]
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his /her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and/or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
10
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands; requests or approvals from
Consultant to City shall be addressed to City at:
Attn:
Administrative Services Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3127
Fax: 949 - 644 -3329
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Rob Clement
16592 Millikan Avenue
Irvine, California 92606
Phone: (949) 266 -1700
Fax: (949) 435 -1595
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, and thereafter diligently take steps to cure
the default, the non - defaulting party may terminate the Agreement forthwith by
giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
11
termination under this Section, City shall pay Consultant for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information
developed or accumulated in the performance of this Agreement, whether in draft
or final form.
29. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
33. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction which
might otherwise apply.
34. AMENDMENTS
12
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
35. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
36. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
37. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
13
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
City Attorney
for the City of Newport Beach
ATTEST:
M
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
M
Mayor
for the City of Newport Beach
CONSULTANT:
Title: Pt- eS'-J4n I"
Print Name: LuIrg4s 4h
By:
(Financial Officer)
Print Name:
Attachments: Exhibit A — Scope of Services
14
BP5530BHG2DD
Embee Technologies
SPD3-5.2
16592 Millikan Ave
(Oj
Irvine, ca. 92606
embee ....
P 949- 266 -1700 F.949-435 -1595
7 To:
Labor to install radio, conduit system, power, data and
of Newport Beach
Price Quote
Box 1768
Product: conduit, data, surge protector and grounding
roort Beach, ca. 92659- 8915
7710 City of Newport Beach. Fire DeparhneltPUbAk
BP5530BHG2DD
Motorola P2P 54600 300 meg radio link
SPD3-5.2
3' Dishes
RD -3
Radome 3' for Dish
Shipping
Shipping
Labor to install radio, conduit system, power, data and
Labor
grounding. At Fire Department site
Misc Product
Product: conduit, data, surge protector and grounding
Labor
Labor: Set and alignment of radio system.
Utilities Yard Installation (Tower)
Labor to install radio, power, data, grounding and surge
Labor
protector.
Product: Mast support system for tower, bracketing and bracing
Misc Product
supplies, data and grounding.
Tower labor to install 1 radio head on tower 190ft above
Labor
ground.
s link must be installed at the same time as the proposed Iii
the Newport Beads Library in order to preserve this pricing
Embee hopes to get a 75 meg link. This is a non line of
link. Actual through may vary.
The City of Newport Beach. h7re Department Public Safety Link
Total
-t Total
Im
$170.00
7
5/11/2008
Quote Number
3512
$37,027.
( J,
em bee rs.:i „axo4,t
Embee Technologies
16592 Millikan Avenue
Irvine, CA 92606
Phone: Facsimile:
949.266.1700 949.435.1595
PREPARED FOR I
City of Newport Beach
PO Box 1768
Newport Beach Ca. 92658 -8915
Estimate
ESTIMATE NO.
7415B
DATE
2/62008
SALES PERSON
WRC
The acceptance of this estimate is a binding purchase contract between
the undersigned and Embee Technologies, and is subject to Embee
Technologies terms and conditions which appear on the back of this CLIENT SIGNATURE
document. Client warrants that the signature below is that of an
authorized agent.
Page 1
JOB DESCRIPTION
PROJECT NO.
Dragonwave 100 public Liberay
QTY
DESCRIPTION
UNIT PRICE
TOTAL
1
Dragon Air Pair 100
23,969.75
23,969.757
18 Ghz standard power, 2ft dish
FCC Band
1
IDU Install Kit (N America)
1,632.00
1,632.00T
I
FCC license of 18 Hz frequency - 10 year license
3,900.00
3,900.007
1
Shipping charges
660.00
660.00.
Public Library:
24
Labor: to install Radio, conduit system, power, data and grounding.
65.00
1,560.00
1
Product: conduit, data and grounding.
1,155.00
1,155.00T
1
Labor: Setup and alignment of Radio /System
2,800.00
2,800.00
Utilities Yard installation (Tower):
24
Labor to install Radio, Power, Data and Grounding.
65.00
1,560.00
1
Product: Mast support system for tower, bracketing and bracing
1,325.00
1,325.00T
supplies,data and grounding.
36
Tower Labor to install (1) radio head on tower 140 above ground.
150.00
5,400.00
-T
TOTAL
The acceptance of this estimate is a binding purchase contract between
the undersigned and Embee Technologies, and is subject to Embee
Technologies terms and conditions which appear on the back of this CLIENT SIGNATURE
document. Client warrants that the signature below is that of an
authorized agent.
Page 1
Embee Technologies
16592 Millikan Avenue
Irvine, CA 92606
Phone: Facsimile:
949.266.1700 949.435.1595
I PREPARED FOR I
City of Newport Beach
PO Box 1768
Newport Beach Ca. 92658 -8915
Estimate
ESTIMATE NO.
74156
DATE
2/6/2008
SALES PERSON
WRC
The acceptance of this estimate is a binding purchase contract between
the undersigned and Embee Technologies, and is subject to Embee
Technologies terms and conditions which appear on the back of this CLIENT SIGNATURE
document. Client warrants that the signature below is that of an
authorized agent.
Page 2
JOB DESCRIPTION
PROJECT NO.
Dmgonwave 100 public Liberay
QTY
DESCRIPTION
UNIT PRICE
TOTAL
Sales Tax Rate for Orange County
7.75%
2,478.59
TOTAL a46,440.34
The acceptance of this estimate is a binding purchase contract between
the undersigned and Embee Technologies, and is subject to Embee
Technologies terms and conditions which appear on the back of this CLIENT SIGNATURE
document. Client warrants that the signature below is that of an
authorized agent.
Page 2
City of Newport Beach NO. BA- 08BA -075
BUDGET AMENDMENT
2007 -08 AMOUNT: $37,177.39
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
�X Increase Expenditure Appropriations AND X Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
X from unappropriated fund balance
1 /J � 'klI-, GIG;
This budget amendment is requested to provide for the following:
To increase expenditure appropriations from unappropriated General Fund fund balance for the WAN, Server
Virtualization and Disater Recovery Implementation Plan These funds were the result of a class action lawsuit
against Microsoft Corporation in Fiscal Year 2007.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
010 3605
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Description
General Fund - Fund Balance
Description
Signed:
Signed:
Approval:
Administrative
Services Director
Manager
Amount
Debit Credit
$37,177.39
' Automatic System Entry.
$37,177.39
Date
l�
Signed:
City Council Approval: City Clerk Date
Description
Division
Number
0630 Information Technology
Account
Number
8030 Maintenance & Repair - Equipment
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Signed:
Signed:
Approval:
Administrative
Services Director
Manager
Amount
Debit Credit
$37,177.39
' Automatic System Entry.
$37,177.39
Date
l�
Signed:
City Council Approval: City Clerk Date