HomeMy WebLinkAboutC-4483 - Contract for Purchase, Installation, M/RS of Centracs ATMSCentracs Advanced Traffic Management SystemCONTRACT WITH ECONOLITE CONTROL PRODUCTS, INC.
FOR PURCHASE, INSTALLATION, MAINTENANCE
AND REPAIR SERVICES OF Centracs ATMSCentracs ADVANCED TRAFFIC
MANAGEMENT SYSTEM
4.1,
THIS CONTRACT is made and entered into as of this day of January, 2010, by and
between the CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City ( "City "),
and ECONOLITE CONTROL PRODUCTS, INC., a California corporation 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 is planning to upgrade the existing icons advanced traffic management system
(ATMS) software to the Centracs ATMS software.
C. City desires to purchase necessary software from Contractor, to engage Contractor to
install all necessary software, to provide the Centracs ATMS upgrade for 51 intersections
within the City, and to configure that 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 will be involved in operation of the Centracs ATMS. (All such software and
equipment purchases, installation, and training shall be hereinafter referred to as
"Project "). Contractor has agreed to perform the Project over a 30 day period,
commencing upon receiving Notice to Proceed.
D. The Centracs ATMS shall provide coordination and enhanced operation at 51 traffic
signals with prior field upgrades through Phases One, Two, and Three of the Traffic Signal
Modernization Project and which is capable of being expanded to traffic signals throughout
the City in future project phases if agreed to by City and Contractor. Additionally, the
Centracs ATMS will provide advanced traffic signal observation and response from City
Hall through direct communication with individual intersections, creating centralized control
for the connected intersections as needed from the Traffic Division of the City's Public
Works 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 familiar with all
conditions relevant to the performance of services and has committed to perform all
work required for the price specified in this Agreement.
F. Contractor is a manufacturer and supplier of traffic control equipment, advanced traffic
management systems and traffic controller firmware.
G. Contractor, alone, has developed proprietary software systems, including the
communication and control system registered as "Centracs."
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows
1. SCOPE OF WORK
Contractor shall provide all tangible items and perform all the services 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 into this Agreement, Contractor represents
and warrants that Contractor is a provider of first class work and services and
Contractor is experienced in performing the work and services contemplated herein and,
in light of such status and experience, Contractor covenants that it shall follow the
highest professional standards in performing the work and services required hereunder
and that all materials will be of good quality. For purposes of this Agreement, the
phrase "highest professional standards" shall 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
furnish all the labor, materials, necessary tools, expendable equipment and all utility and
transportation services necessary for the Project.
In consideration of the payment of the Purchase Price and subject to all the terms and
conditions hereof. Contractor shall:
(a) Sell to City, and install, the software, hardware, devices, connections and
equipment (hereinafter referred to as "the System ") listed and set forth in
the Scope of Work attached hereto as Exhibit A and incorporated in full
by this reference.
(b) Supply to City under license the software components of the Centracs
ATMS system, described in detail in Exhibit A, including any necessary
licensed software products and related materials.
(c) Supply to City and install all software and hardware required to operate
the Synchro® Interface Module and CCTV Module.
(d) Provide the testing and training services as set forth in Exhibit A.
(e) Transfer all existing icons licenses and support to the Centracs ATMS.
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 acceptance
testing within the time set forth in Exhibit A. The failure by Contractor to meet this
schedule may result in termination of this Agreement by City as outlined in Section 17.
2.1 Force Maieur
The time period(s) specified in Exhibit A for performance of services rendered pursuant
to this Agreement shall be extended because of any delays due to unforeseeable
causes beyond the control and without the fault or negligence of Contractor, including
but not restricted to acts of God or of the public enemy, unusually severe weather, fires,
earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes,
wars, and /or acts of any governmental agency, including the City, if Contractor shall
within ten (10) days of the commencement of such delay notify City in writing of the
cause of the delay. City shall ascertain the facts and extent of delay, and extend the
time for performing the services for the period of the enforced delay when and if in the
judgment of the City such delay is justified. City's determination shall be final and
conclusive upon the parties to this Agreement. In no event shall Contractor be entitled
to recover damages against City for any delay in performance of this Agreement,
however caused, Contractor's sole remedy being extension of the Agreement pursuant
to this Section.
2.2 Term
Unless earlier terminated in accordance with Section 17 of this Agreement, this
Agreement shall continue in full force and effect until completion of the services agreed
to herein.
COMPENSATION
As full compensation for the performance and completion of the Project as required by
the Scope of Work, City shall pay to Contractor and Contractor accepts as the full
Purchase Price the sum of Twenty Three Thousand, One Hundred Forty Two and
121100 ($23.142.00). Contractor shall not receive any additional compensation unless
approved in advance by the City in writing. The City shall make monthly progress
payments for labor as the Project work proceeds based on the fee schedule set forth in
Exhibit A. Payment for software, hardware and equipment shall become due upon
shipment to and receipt of such software, hardware and equipment to City. City shall
pay Contractor ninety percent (90 %) of each approved invoice amount no later than
thirty (30) days after approval of an invoice by City staff. The remaining ten percent
(10 %) of each approved invoice shall be paid by City upon Final System Acceptance, as
defined in Subsection 6.1 of this Agreement.
A. All shipping and insurance costs to and from the installation sites are included in the
purchase 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 shipment, installation, and delivery of
hardware which is not a part of this Agreement and for which exact payments are
not described. Contractor shall be responsible for all arrangements for the shipment
of software, hardware and equipment to the City, and /or movement of the hardware
to the prepared site within the City. Contractor shall also be responsible for removal
of all debris and packing materials from the City site resulting from the installation of
the equipment, hardware and software.
B. Contractor shall provide City with a minimum 14 days notice of its dates of installation to
enable the City to prepare the installation sites for the Hardware in accordance with the
instructions of Contractor. The City shall complete site preparation prior to the date of
installation of the hardware, and the site shall thereafter be available for inspection and
approval. All costs and expenses related to the site preparation shall be at the sole
expense of City. Contractor will provide staff for complete on -site training of City
personnel as set forth in Exhibit A.
C. Payments shall be made in accordance with this Section and the schedule set forth in
Exhibit A.
D. Extra Work - Contractor shall not receive any compensation for Extra Work without
the prior written authorization of the City. As used herein, "Extra Work" means any
work that is determined by the City to be necessary for the proper completion of the
Project, but which is not included in the Purchase Price as specified in Exhibit A, and
which parties did not reasonably anticipate would be necessary. Compensation for
any authorized Extra Work shall be paid in accordance with the hourly rates set forth in
Exhibit A.
4. ADMINISTRATION
This Agreement will be administered by the Public Works Department. Anthony Brine
shall be the Project Administrator and shall have the authority to act for City under this
Agreement.
5. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE
5.1 Contractor shall use only the standard materials described in Exhibit A in
performing services under this Agreement. Any deviation from the materials
described in Exhibit A shall not be installed unless approved in advance by the
City Project Administrator.
5.2 All of the services shall be performed by Contractor or under Contractor's
supervision. Contractor represents that it possesses the 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.
6. ACCEPTANCE TESTING AND ACCEPTANCE
6.1 "Final System Acceptance" shall mean the latest of the dates on which (a) all
phases of the system have been used in live onsite operations for a period of at
least seven (7) continuous days without significant error following successful
completion of the seven (7) day System Acceptance Test described below; and (b)
all remaining punch list items have been addressed and completed.
6.2 Acceptance Test Plan
Contractor shall follow the Acceptance Test Plan (hereinafter "ATP ") developed
in consultation with the City containing Acceptance Criteria that establishes test
procedures and test criteria, for evaluating system capabilities, functions, and
features along with a problem reporting method for use in the system testing.
6.3 Acceptance of Hardware
Upon completion of the installation of the hardware, Contractor will notify City
that such hardware, as described in Exhibit A, has successfully been installed.
Hardware shall not be deemed to have been accepted by City until Final System
Acceptance.
S
6.4 System Acceptance Test
Once all phases of the project have commenced simultaneous live operations, a
seven (7) day period of System Acceptance testing for the entire system,
including all interfaces and deliverables provided under this Agreement, shall
begin. Acceptance Testing shall occur in a live environment. Any significant
error or deviations from the ATP, or the error, deviation or failure of any part or
component of the System not manufactured but provided by Contractor, shall be
reported to City, and Contractor shall provide in writing an action plan for
resolution of such error, deviation or failure within two (2) working days. The
System Acceptance Test shall be deemed completed upon completion of a
continuous seven (7) day period during which no material failure to meet the
criteria set forth in the ATP or significant errors remain unresolved to the
satisfaction of the City. System Acceptance Test shall not be unreasonably
delayed due to actions of City or its agents, contractors or subcontractors not
retained by or through Contractor.
6.5 Failure
A. Failure Prior to Final System Acceptance. Upon any failure of the
System Acceptance Test, Contractor shall have an additional seven (7)
days in which make necessary equipment repairs, replacements and /or
software fixes without additional cost to City, after which the System
Acceptance Test shall be repeated without additional cost to City. If more
than seven (7) days are reasonably required to make the aforementioned
repairs, replacements or software fixes, Contractor shall provide a written
action plan that includes a timeline for resolution based on the scope of
work involved, and City may authorize a longer repair or resolution period
in writing. Failure of the System to meet or exceed a second System
Acceptance Test, or failure to provide seven (7) days of continuous live
operation without significant errors after any additional System
Acceptance Test, shall constitute a failure to successfully complete
Contractor's obligations under this Agreement and Contractor shall be
considered in default of a material obligation. City shall be entitled to a
refund of the full amount of the fees paid for Contractor's services. City
shall also be entitled to full refund on any software, hardware and other
System components purchased pursuant to this Agreement that is
deemed unusable by the City. Any removal of the system will be at
Contractor's sole cost and expense.
B. Failure After Final System Acceptance. Contractor and City agree that
upon system failure, time is of the essence for necessary system
equipment repairs or replacements, and time is of the essence for
addressing any software defects which cause failures classified as
Severity Level One and Severity Level Two, below. Upon any failure of
the System or its hardware or software components, the Warranty
provisions of Exhibit A and Section 26 of this Agreement shall apply.
During the warranty period, if hardware or equipment purchase under this
Agreement from Contractor shall fail, Contractor shall repair or replace
the hardware or equipment within seven (7) working days for all but
Severity Level One failures. In the event of a Severity Level One
hardware or equipment failure, repair and replacement shall occur within
24 hours of notification of such failure to Contractor by City. If the failure
is due to a software defect or failure, the timelines for Contractor
response and defect resolution below shall apply:
Severity Level One (Critical): Failure that causes an intersection
to be in flash or dark, or failure of safety features such as
emergency vehicle preemption or railroad preemption. In the
event of a Severity Level One failure, Contractor response shall
be immediate, and Contractor shall provide a fix, solution or
workaround within 24 hours of notification of such failure to
Contractor by City.
2. Severity Level Two (High): Failure or bug in system that results in
degradation of traffic signal control and communication system
function to a moderate to serious degree under normal or
reasonable operating conditions. Severity Level Two failures shall
include but are not limited to failure or severe degradation of
coordination between intersections, communication between the
central system at City Hall and the Feld elements, and the ability
to upload and download data to the ability demonstrated as part of
the ATP. In the event of a Severity Level Two failure, Contractor
shall respond with a written plan of action to address the failure
within five (5) business days of notification by City. Contractor
shall provide a fix or solution for any Level Two failure within no
later than forty -five (45) calendar days of notification of failure by
City.
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 shall be
addressed through regular system upgrade releases on an as-
needed basis.
7. RESPONSIBILITY FOR DAMAGES OR INJURY
7.1 City and all officers, employees and representatives thereof shall not be
responsible in any manner for any loss or 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 services 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 indemnify, hold harmless, and 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 claims 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
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improper materials in performing this Project including, without limitation, defects
in workmanship or materials and /or design defects; and/or (3) any and all claims
asserted by Contractors subconcontractors or suppliers on the Project, and shall
include reasonable attorneys' fees and all other costs incurred in defending any
such claim. Contractor's liability in this Subsection shall be limited to the
maximum amount of its insurance coverage for claims arising out non - negligent
and non - intentional acts performed under this Agreement. Contractor shall not
be held responsible for consequential or special 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
City, its officers or employees.
Intellectual Property Indemnity - Contractor shall defend, indemnify and hold
City, its agents, officers, representatives, employees and City Council, boards
and commissions harmless from any proceeding brought against City for any
intentional or unintentional violation of the intellectual property rights of any third
party with respect to equipment and software deliverables purchased in this
Agreement. This indemnification shall include, but is not limited to, infringement
of any United States' letters patent, trademark, or copyright infringement,
including costs, contained in Contractor's deliverables provided under this
Agreement.
The City agrees to keep confidential all material and documentation relating to
the Software and any modification thereto, to the extent that such materials are
not subject to disclosure under the California Public Records Act or Freedom of
Information Act. The City will not make available or distribute any program code
or description associated with the Centracs RTMS in any form whatsoever to
third parties, without the prior written approval of Contractor.
7.4 Contractor shall perform all Project work in a manner to minimize public
inconvenience and possible hazard, to restore other work areas to their original
condition and former usefulness as soon as possible, and to protect public and
private property. Contractor shall perform work as specified in Exhibit A to limit
impacts to traffic during the system installation period. Contractor shall be liable
for any private or public property damaged during the performance of the Project
work.
7.5 Contractor shall provide traffic control and access in accordance with Section 7-
10 of the State Standard Specifications and the latest edition of the Work Area
Traffic 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 provided
by Contractor shall be considered Extra Work, and will be billed to the City
separately from monthly progress payments.
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
traffic control plan from the City's Traffic Engineer. The Contractor shall adhere
to the conditions of the traffic control plan. Traffic control plans shall be
prepared, signed, and sealed by a California licensed Civil Engineer or Traffic
Engineer, as directed by the City Traffic Engineer, and conform to the provisions
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of the WORK AREA TRAFFIC CONTROL HANDBOOK (W.A.T.C.H), Latest
Edition.
Traffic control and detours shall at a minimum meet the following requirements:
A. Emergency vehicle access shall be maintained at all times.
B. The locations and wordings of all barricades, signs, delineators, lights,
warning devices, parking restrictions, and any other required details
shall ensure that all pedestrian 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 flash" shall be limited to 4-hour
periods between the hours of 9:00 AM and 3:00 PM on weekdays (Monday
through Thursday), except as authorized 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 two "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 shall be construed as authorizing any award of attorney's
fees in any action to enforce the terms of this Agreement, except to the extent
provided in Section 7.3 above.
7.7 The rights and obligations 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 its 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 shall 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 Project.
10. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement of
work. Contractor 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. 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 City's Risk Manager prior to
commencement of performance or issuance of any permit or performance of any
work. 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. Contractor shall maintain Workers'
Compensation Insurance and Employer's Liability 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
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 Contractor for City.
ii. General Liability Coverage. Contractor shall maintain commercial
general liability insurance in an amount not less than one million dollars
($1,000,000) 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. 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 rented vehicles, in an amount not less than one million dollars
($1,000,000) combined single limit for each occurrence.
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E. Endorsements. 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 Contractor.
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 Contractor's operations or services provided to City. Any
insurance maintained by City, including any self- insured retention City
may have, shall be considered excess 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. Contractor shall give City prompt and timely notice of
claim made or suit instituted arising out of or resulting from Contractor's
performance under this Contract.
G. Additional Insurance. Contractor 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.
11. 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 Exhibits 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)
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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 Insurance Commissioner,
which authorizes the Insurer or Surety to transact surety insurance in the Sate of
California.
12. PREVAILING WAGES
Pursuant to the applicable provisions of the Labor Code of the State of California, not less
than the general prevailing rate of per diem wages including legal holidays and overtime
work for each craft or type of workman needed to execute the work contemplated under
the Agreement shall be paid to all workmen 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 et seq.), the Director of Industrial Relations has ascertained
the general prevailing rate of per diem wages in the locality in which the work is to be
performed for each craft, classification, or type of workman or mechanic needed to
execute the Agreement. A copy of said determination is available by calling the prevailing
wage hotline number (415) 703 -4774, and requesting one from the Department of
Industrial Relations. The Contractor is required to obtain the wage determinations from
the Department of Industrial Relations and post at the job site the prevailing rate or per
diem wages. It shall be the obligation of the Contractor or any subcontractor under
him /her to comply with all State of California labor laws, rules and regulations and the
parties agree that the City shall not be liable for any violation thereof.
13. SUBCONTRACTING
City and Contractor agree that subcontractors may be used to complete the work
outlined in the Scope of Services provided the Contractor obtains City approval in writing
prior to the subcontractor performing any work. Contractor shall be fully responsible to
City for all acts and omissions of the subcontractors. Nothing in this Contract shall
create any contractual relationship between City and subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies 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 withholding shall not be deemed to
constitute a failure to pay according to the terms of this Contract. Contractor shall not
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 respect to such disputed
sums. Contractor 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.
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 performed
under this Contract, and (2) prohibits such persons from making, or participating in
making, decisions that will foreseeably financially affect such interest.
If 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 resulting from Contractor's violation of this Section.
16. 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, requests or approvals from Contractor to
City shall be addressed to City at:
Attn: Brad Sommers
Public Works Department
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA, 92660
Phone: 949 -644 -3329
Fax: 949 -644 -3318
All notices, demands, requests or approvals from City to Contractor shall be addressed
to Contractor at:
Attention: Roy Howard
Econolite Control Products, Inc.
3360 E. La Palma Ave.
Anaheim, CA 92806
Phone: (719) 471 -9866 ext. 352
Fax: (719) 471 -9063
17. TERMINATION
Termination With Cause - 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 five (5) calendar days, or if more than five (5) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within five (5) calendar days after receipt of written notice
of default, specifying 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 notice thereof.
Termination Without Cause - 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 Contractor. In the event of
termination under this Section, City shall 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
12
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.
Contractor shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all govemmental entities, including federal, state, county
or municipal, whether now in force or hereinafter enacted.
19. WAIVER
A waiver by City of any term, covenant, 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 or condition.
20. INTEGRATED AGREEMENT
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.
21. CONFLICTS OR INCONSISTENCIES
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 Site, 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. 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.
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 party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise
apply.
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26. WARRANTY
Contractor warrants 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
specified 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 contract, 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 notifies 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, 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 6.5(B) of this
Agreement. City will return the defective product to Contractor, at Contractor's expense.
Contractor shall repair or replace the defective item and return it to City, shipping costs prepaid.
Contractor shall perform any necessary diagnostic work, software, hardware and equipment
removal, repair, replacement, certification, and installation at no cost to the City during the
warranty period, using Contractor's equipment. If Centracs ATMS 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
specified in Section 6.5(B) of this Agreement shall apply.
The foregoing warranty is exclusive and in lieu of all other warranties, whether written, oral,
implied 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 Centracs ATMS software modules to correct "bugs" or deficiencies, which would
appear within one (1) year from the date of Final System Acceptance of the standard Centracs
ATMS 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 expiration of
Contractor's 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 cost of $12,500 per year ( "the
Maintenance Fee "). The Maintenance Agreement shall take effect on the day the
software warranty expires ("Software Warranty Expiration Date ".) If City exercises its
option to enter the five -year Maintenance Agreement, the annual fee of $12,500 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.
14
28.
29.
If City does not exercise the option to enter the five year Maintenance Agreement
Contractor's technical support and service provided beyond the initial warranty periods
shall be subject to applicable hourly support rates plus travel and per diem cost at time
support is provided.
REPRESENTATIONS
Non - infringement. 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 effect as of the Effective Date.
Authority. Each party represents as follows: (a) that it has full power and authority to
execute, deliver and perform its obligations under this Agreement; (b) that there are no
actions, proceedings or investigations, pending or, to the best of each party's
knowledge, threatened against such party which may in any manner whatsoever
materially affect the enforceability of this Agreement or the rights, duties and obligations
of the parties 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, duties and obligations hereunder.
No Other Representations. Each party acknowledges and agrees that it is relying on no
representation of the other party except as expressly set forth herein.
LICENSES
The Contractor grants to the City for exclusive use in the City a fully paid non - exclusive,
non - transferable Centracs ATMS software license for (1) Communications server, (1)
File /Applications server, (1) Terminal services server and workstation computers. The
Communications Server license covers up to 250 intersections operating from a single
communications server computer (expandable beyond 250 intersections with additional
software licenses and hardware). The City shall 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 back up copies must include the copyright :notice in the original form
as it appears on the licensed programs.
The City may not copy, modify, adapt, merge, disassemble, decompile 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 copied 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,
15
program concepts, or any of the support materials shall 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.
Confidential Information. In the performance of this Agreement or in contemplation
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 contain proprietary details and disclosures. All information and data
identified in writing as proprietary or confidential by either party ( "Confidential
Information ") and so acquired by the other party or its employees or agents under this
Agreement or in contemplation thereof shall be and shall remain the disclosing party's
exclusive property. The recipient of Confidential Information shall use all reasonable
efforts (which in any event shall not be less than the efforts the recipient takes to ensure
the confidentiality of its own proprietary and other confidential information) to keep, and
have its employees and agents keep, any and all Confidential Information confidential,
and shall not copy, or publish or disclose it to others, nor authorize its employees,
agents or anyone else to copy or disclose it to others, without the disclosing party's
written approval; nor shall the recipient make use of the Confidential Information except
for the purposes of executing its obligations hereunder, and (except as provided for
herein) shall return the Confidential Information and data to the first party at its request.
The City's duty to maintain confidentiality as described hereunder shall 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, is information
previously known to the recipient, is information independently developed by or for the
recipient or is information generally released by the owning party without restriction.
Right to Injunctive Relief. Because of the unique nature of the Confidential Information,
the parties agree that each party may suffer irreparable harm in the event that the other
party fails to comply with any of its obligations under this Article, and that monetary
damages may be inadequate to compensate either party for such breach. Accordingly,
the parties agree that either party will, in addition to any other remedies available to it at
law or in equity, be entitled to seek injunctive relief to enforce the terms of this Article.
31. SOFTWARE UPDATES AND ENHANCEMENTS
Software enhancements or new features added to Centracs ATMS through new system
development for other agencies, or as part of the Contractor's ongoing research and
development shall be offered to the City at a fixed, quoted price. The offer shall remain
firm for 90 days from the date of the offer.
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32. ASSIGNMENT
This Agreement shall not be assigned by any party, or any party substituted, without
prior written consent of the City and the Contractor.
33. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same instrument.
34. OTHER MATTERS
Severability. In the event any of the provisions of this Agreement shall, for any reason,
be held void or unenforceable, the remaining provisions shall remain in full effect and
shall control.
Invalidity. Any provisions of this Agreement prohibited by the law of any state shall, as
to said state, be ineffective to the extent of such prohibition without invalidating the
remaining provisions of this Agreement.
Absence of Third Party Beneficiary Rights. Except as otherwise provided in this
Agreement, no provision of this 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
parties hereto.
Headings. Article and Section headings are included solely for convenience, are not to
be considered a part of this Agreement nor are they intended to be full and accurate
descriptions of the contents thereof.
17
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: zl�
In
ette . B uch p,
stant City Attor y
ATTEST:
a
By:
Leilani I. Brown,
City Clerk
���pORT
u .r
Attachments
CITY OF NEWPORT BEACH,
A Municipal Corporatia.n�'
:phe . Badum,
blic orks Director
ECONOLITE CONTROL PRODUCTS, INC.
in
itle: e for Vice President
B o/�
Y: r
Brian I artin,
Assistant Secretary
Exhibit A — Scope of Services (Econolite Proposal)
Exhibit B — Labor and Materials Payment Bond
Exhibit C — Faithful Performance Bond
ECONOUTE
Introduction
For over 75 years, Econolite (Econolite Control Products, Inc.) has been an innovator
of transportation management solutions. We are committed to employing advanced
technologies to reduce traveler time, ease congestion, enhance transit operations,
provide safer mobility and improve the quality of life. We are aware that your agency
is interested in improving its traffic technology architecture and we are pleased to offer
this proposal to reflect our understanding of your needs. In this proposal, we will
introduce you to our proposed products and services; outline a scope of work along
with a proposed list of equipment and materials and the cost associated with this
project.
General Scope
This proposal and associated pricing includes the software and services required for
the deployment of the Centracs Advanced Transportation Management System
(ATMS) for Provided by:.
The scope of work for this project will be limited to installation of Centracs server and
client software on equipment previously procured by the City of Newport Beach. This
scope of work also includes configuration and integration of 51 intersections with
communications and graphics along with 16 hours of on -site training. The table below
represents an overview of the products and services required as part of the project
scope.
Details
Number of System Intersection Licenses: 150
Type of Base Map Graphics: Navteq Map Graphics.
Hours of Training: 16 Hours
51 with Template Background
Number of Intersections Integrated into System: Graphics.
On -Site Integration and Support (includes
Software Maintenance
* Any additional time on -site may be billed at our standard rate ($225/hr), along with travel
expenses.
This proposal for Centracs is based upon the details provided to Econolite, and
includes no field equipment (controllers, cabinets, communications devices, etc.).
The pricing listed below is only for services and software licenses outlined in this
proposal, and does not bind Econolite to any other deliverables.
3360 E. La Palma Ave . Anaheim, CA 92806 -2856 . PH: (714) 630 -3700 . FAX: (714) 630 -6349
P.O. Box 6150 . Anaheim, CA 92816 -0150. www.econolite.com
PEOI9:ER E0
tit...i s
Communications Scope
Econolite does not propose any work on field communications interconnect or
equipment as part of this project's scope. All communications interconnect must be
completed and operational prior to Econolite integrating system software. The City of
Newport Beach is responsible for all communications interconnect from the field, and
all field interconnect must be terminated at the TMC server location. Any and all patch
cables that are necessary to make the connection between the central communications
equipment and field communications interconnect will be supplied by the City of
Newport Beach.
As part the systems integration effort and systems acceptance testing, Econolite will test
communications to the 51 controllers directly connected to the central communications
devices. The following will be performed as part of the communications testing:
1) Econolite will configure Centracs to communicate with each controller
2) The controller shall be connected to the Centracs communications server,
and
3) system communications shall be tested by demonstrating that an
operator can conduct an upload, download, and status verification of the
controller.
This shall also constitute acceptance of communications performance. The
remaining system acceptance testing will be performed per Econolite's standard
acceptance test procedures.
In the event that the City of Newport Beach requests Econolite factory support for field
communications configuration and troubleshooting, Econolite reserves the right to bill the
City for labor at $225.00 per hour, plus travel expenses. If Econolite is able to provide
support remotely, assistance will be provided at no charge during the standard one -year
warranty period or with an extended Software Maintenance Agreement.
Central Computer Equipment
Based upon the requirements if this project, the system upgrade will not require
procurement or deployment of any servers or workstations or computer equipment.
3360 E. La Palma Ave e Anaheim, CA 92806 -2856 . PH: (714) 630 -3700 . FAX: (714) 630 -6349
P.O. Box 6150 . Anaheim. CA 92816 -0150 E www,.econolite.com
FEBIEI EMEO
Aa.1
CONOLITE
. . . . . . . . . . . . . - . . . . . . . . . . . . L - -- - - - - -
MCONOILITS
Pricing and Terms
The following pricing is valid for 90 days from the date of this proposal:
Payment terms are as follows:
ll. All payments shall be made according to invoice schedule
2. All hardware is 100% payable, Net 30 days upon shipment
3. System integration and central software
a. 90% due upon completion of system installation / integration
b. 10% due upon completion of acceptance test training
Delivery Terms:
Econolite will make every attempt to complete installation within 30 days of contract
signing, but final delivery time can only be determined at the time of signing the System
Supply Agreement (SSA).
3360 E. La Palma Ave • Anaheim. CA 92806-2856 ♦ PH: (714) 630-3700 t FAX: (714) 630-6349
P.O. Box 6150 * Anaheim. CA 92816-0150 # www.econolite.com
A
CITY OF NEWPORT BEACH
BOND NO.
LABOR AND MATERIALS PAYMENT BOND
WHEREAS, the City of Newport Beach,
hereinafter designated as
. located
State
of California,
has awarded
to
the
"Principal," a
contract for
the
at
in the City
of
, 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 (INSERT CONTRACT
DOLLAR AMOUNT) 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.
19
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 2010.
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
20
CITY OF NEWPORT BEACH
BOND NO.
FAITHFUL PERFORMANCE BOND
The premium charges on this Bond is $
being at the rate of $
thousand of the Contract price.
WHEREAS, the City of Newport Beach, State of California, has awarded to
hereinafter designated as the "Principal," a contract for the
, located at in the City of
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 (INSERT CONTRACT DOLLAR AMOUNT) 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 specked 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.
21
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 2010.
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
22