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HomeMy WebLinkAboutC-4845 - MA for City Wide Streetlight Maintenance ServicesU) 7, T M AMENDMENT NO. THREE TO MAINTENANCE AGREEMENT WITH FLUORESCO LIGHTING -SIGN MAINTENANCE CORPORATION FOR CITY WIDE STREETLIGHT MAINTENANCE SERVICES THIS AMENDMENT NO. THREE TO MAINTENANCE AGREEMENT ("Amendment No. Three "), is entered into as of this 8th day of April, 2014, by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter City ("City"), and FLUORESCO LIGHTING -SIGN MAINTENANCE CORPORATION an Arizona corporation, whose address is 2778 Pomona Blvd, California 91768 ("Contractor"), and is made with reference to the following: RECITALS: A. On June 28, 2011, City and Contractor entered into a Maintenance Agreement ("Agreement') for general maintenance of city -owned streetlights for Streetlight Maintenance Services (`Project'). B. On October 10, 2011, City and Contractor entered into Amendment No. One to the Agreement to reflect additional services not included in the Agreement and increase total compensation ("Amendment No. One"). C. On October 4, 2012, City and Contractor entered into Amendment No. Two to the Agreement to rescind Amendment No. One ("Amendment No. Two"). D. City desires to enter into this Amendment No. Three to increase total compensation ("Amendment No. Three"). E. City and Contractor mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION Section 4 of the Agreement ("Compensation") shall be amended to add the following paragraph: 4.1.1 Total Compensation. Contractor's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subcontractor fees, shall not exceed Two Hundred Thirteen Thousand Five Hundred Ninety -Seven Dollars and 001100 ($213,597.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement as amended shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. Three on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 3- 7-5 -It f By: Aaron C. H p City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk L ORN►r CITY OF NEWPORT BEACH, a California municipal corporation Date: 5 j 1TAi%� By: C...L Dave Ki City Manager CONTRACTOR: FLUORESCO LIGHTING -SIGN MAINTENANCE CORPORATION, an Arizona corporation Date: .. !4 1' By: Lad Kleiman President Date: B Andy Kleiman Executive Vice President FLUORESCO LIGHTING -SIGN MAINTENANCE CORPORATION Page 2 \ AMENDMENT NO. TWO TO MAINTENANCE AGREEMENT WITH FLUORESCO LIGHTING & SIGNS FOR CITY WIDE STREETLIGHT MAINTENANCE THIS AMENDMENT NO. TWO TO MAINTENANCE �,6REEMENT ("Amendment No. TWO °), is entered into as of this jK day of ��(3�1 `1, by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter City ("City"), and FLUORESCO LIGHTING & SIGNS an Arizona corporation, whose address is 2778 Pomona Blvd, California 91768 ("Consultant'), and is made with reference to the following: RECITALS: A. On June 28, 2011, City and Consultant entered into a Maintenance Agreement ("Agreement') for general maintenance of city -owned streetlights for the Streetlight Maintenance Services ('Project'). B. On October 10, 2011, City and Consultant entered into Amendment No. One to the Agreement to reflect additional services not included in the agreement and increase total compensation ("Amendment No. One"). C. City desires to enter into this Amendment No. Two to rescind Amendment No. One ("Amendment No. Two"). D. City and Contractor mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED All additional Services added to the Agreement by Amendment No. One are rescinded by this Amendment No. Two. 2. COMPENSATION All additional compensation added to the Agreement by Amendment No. One are rescinded by this Amendment No. Two. 3. TIME OF PERFORMANCE All additional provisions for time of performance added to the Agreement by Amendment No. One are rescinded by this Amendment No. Two. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement as amended shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. Two on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: -7'/W/ Z. - UAW AN I IM A RMN.I City Attorney ATTEST: Date: 10' By: k J, Nw"' Leilani I. Brown City Clerk 01 CITY OF NEWPORT BEACH, A California municipal corporation Date: g1 Lqj By: G Dave City Manager CONSULTANT: FLUORESCO LIGHTING & SIGNS, an Arizona corporation Date: 'Y/ ; / Zc) t z_. By: ow� Ladd Kleiman President Date: Z-3 / ­ �.' r 'Z Andy Kleiman Executive Vice President A 11-01067/f.•I appsl catl cycoml wpdocsld0131 p006100010102. docx FLUORESCO LIGHTING & SIGNS Page 2 AMENDMENT NO. ONE TO r AGREEMENT FOR CITYWIDE STREETLIGHT MAINTENANCE SERVICES WITH T FLUORESCO LIGHTING -SIGN MAINTENANCE CORP. i THIS AMENDMENT NO. ONE TO AGREEMENT FOR CITYWIDE STREETLIGHT MAINTENANCE SERVICES ("Amendment No. One'), is entered into as of this Ib}` day of October , 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ("City"), and FLUORESCO LIGHTING -SIGN MAINTENANCE CORP., an Arizona corporation whose address is 2778 Pomona Blvd, Pomona, California 91768 ("Contractor"), and is made with reference to the following: RECITALS: A. On June 28, 2011, City and Contractor entered into an Agreement ("Agreement") for citywide streetlight maintenance services for the City ("Project"). B. City desires to enter into this Amendment No. One to Agreement for Citywide Streetlight Maintenance Services to reflect additional services not included in the Agreement, and to increase the total compensation. C. City and Contractor mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SERVICES TO BE PERFORMED Section 2 of the Agreement shall be supplemented to include the addition of the on-call and emergency services as described in Exhibit 'A' and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 2. TIME OF PERFORMANCE Section 3 of the Agreement shall be supplemented to include: 3.5. Upon verbal or written request from the Project Administrator (as defined below in Section 5), Contractor shall provide a letter proposal for on-call or emergency Services requested by the City (hereinafter referred to as the "Letter Proposal"). The Letter Proposal shall include the following: 3.5.1. A detailed description of the Services to be provided; 3.5.2. The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; and 3.5.3. The estimated number of hours and cost to complete the Services; 3.5.4. The time needed to finish the specific Project. 3.6. No on-call or emergency Services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the duties in the approved Letter Proposal. 3. COMPENSATION Section 4.1 of the Agreement shall be supplemented to include the addition of the on- call and emergency service rates as described in Exhibit B and incorporated herein by reference. Section 4.1 is therefore amended in its entirety and replaced with the following: 4.1 City shall pay Contractor an amount not to exceed Sixty -Four thousand One Hundred eighty-four Dollars and 00/100 ($64,184.00) ("Total Compensation") per contract year, subject to the annual consumer price index adjustment, without written amendment to the Agreement in accordance with the provisions of this Section and the Schedule of Billing Rates attached to the Agreement as Exhibit B and incorporated herein by reference. 4.1.1 Annual Maintenance Services shall not exceed Fifty-one thousand Six hundred eighty-four Dollars and 00/100 ($51,684.00) per contract year, subject to the annual consumer price index adjustment, of the Total Compensation. 4.1.2 On -Call and Emergency Services shall not exceed Twelve Thousand Five Hundred Dollars ($12,500.00) per contract year, subject to the annual consumer price index adjustment, of the Total Compensation. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES NEXT PAGE] Fluoresco Lighting -Sign Maintenance Corp. Page 2 IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. One on the dates written below. APPROVED AS TO FORM: OFFI&E�% tT/ E CITY ATTORNEY B�1 Leo ie Mulvihill Assistant City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk G CITY OF NEWPORT BEACH, A California municipal corporation Date: By: G— \ Dave L;fi,� Mv� --r' r CONTRACTOR: Fluoresco Lighting -Sign Maintenance Corp., an Arizona corporation / Date: /0 JiQ ! Zc it By: Ladd Kleiman President Date: ► l i i i /p k -449 - By: Andy Kleiman Executive Vice President [END OF SIGNATURES] Attachments: Exhibit A – On -Call and Emergency Services to be Performed Exhibit B – On -Call and Emergency Services Rate Schedule Fluoresco Lighting -Sign Maintenance Corp. Page 3 EXHIBIT A On -Call and Emergency Services to be Performed Furnish all labor, equipment, materials, and supervision to perform emergency repair and maintenance services as described herein including, but not limited to, the following: 1. Pole knockdowns, Myers (electrical) box, lens hanging from poles, electrical trouble shooting, line tracing, exposed wires. 2. Services relating to car accidents: struck electrical boxes, poles, etc. 3. Minimum four hours on all emergency calls. 4. After-hours emergency response time will be between 34 hours, after hours will be between 5:OOpm and 7:OOam. Fluoresco Lighting -Sign Maintenance Corp. Page A-1 Exhibit B On -Call and Emergency Rate Schedule Crew Emergency Rate Holiday 1 man + max. 55ft truck $134.00 $178.00 2 men + max. 55ft truck $217.00 $290.00 2 men + max. 1201t truck $248.00 $330.00 2 men + max. 1508 truck $338.00 $450.00 Fluoresco Lighting -Sign Maintenance Corp. Page B-1 AGREEMENTFOR CITYWIDE STREETLIGHT MAINTENANCE SERVICES WITH FLUORESCO LIGHTING -SIGN MAINTENANCE CORP. THIS AGREEMENT FOR CITYWIDE STREETLIGHT MAINTENANCE SERVICES ("Agreement' or "Contract') is made and entered into as of this 28th day of June, 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation and charter city ("City"), and Fluoresco Lighting -Sign Maintenance Corp., an Arizona corporation ("Contractor"), whose principal place of business is 2778 Pomona Blvd, Pomona, CA 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 requires general maintenance of city -owned streetlights within the public right-of-way. C. City desires to engage Contractor to maintain City streetlights ("Project'). D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and 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. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The initial term of this Agreement shall commence on the above written date, and shall be for a period of one (1) year. The term of this Agreement shall be extended for three (3) additional one (1) year terms with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. The term of the Agreement shall not extend beyond June 30, 2015, unless terminated earlier as set forth herein. 2. SCOPE OF WORK 2.1 Contractor shall perform all the work described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference ("Services" or "Work"). 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 Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the Work 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. 2.2 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, unless otherwise described in the Scope of Work. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Contractor shall perform the Services in accordance with the schedule included in Exhibit A. The failure by Contractor to strictly adhere to the schedule may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor'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. 3.3 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than 30 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 Contractor's control. 3.4 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances. 4.1 City shall pay Contractor an amount not to exceed Fifty-one thousand Six hundred eighty-four Dollars and 00/100 ($51,684.00) per contract year, subject to the annual consumer price index adjustment, without written amendment to the Agreement in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. 4.2 Consumer Price Index. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the rates to be paid by the City as set forth in Exhibit B shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 3.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original rate by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective June 1, 2011, the index to be used for the numerator is the index for the month of March Page 2 2011 and the index to be used for the denominator is March 2010. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States. Department of Labor, Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this agreement be reduced below the Rate in effect immediately preceding such adjustment. The maximum increase to the Rate, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 3.0% of the Rate in effect immediately preceding such adjustment. 4.3 Invoices. Contractor shall submit monthly invoices for the Work performed the preceding month. City shall pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. 5. ADMINISTRATION This Agreement will be administered by the Municipal Operations Department. The Operations Manager, or his/her designee, 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. 6. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE 6.1 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 Administrator. 6.2 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 highest 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. 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 subcontractors, 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, Page 3 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 To the fullest extent permitted by law, Contractor 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 Contractor's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 7.3.1 Notwithstanding the foregoing, nothing herein shall be construed to require Contractor 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 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 be liable for any private or public property damaged during the performance of the Project Work. 7.5 To the extent authorized by law, as much of the money due Contractor under and by virtue of the Agreement as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 7.6 The rights and obligations set forth in this Section shall survive the termination of this Agreement. B. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees 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. Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 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 10.1 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. The cost of such insurance shall be included in Contractor's bid. 10.2 Coverage and Limit Requirements. 10.2.1 . Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. 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, Section 3700 for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. 10.2.2 General Liabilitv. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000) Products and Completed Operations Aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. 10.2.3 Automobile Liabilitv. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor Page 5 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 accident. 10.3 Other Insurance Provisions or Requirements 10.3.1 Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and an additional insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this Agreement. All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 10.3.2 General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 10.3.2.1 City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Contractor shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. 10.3.2.2 Contractor's insurance coverage shall be primary insurance and/or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to the City. Any insurance or self-insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 10.3.2.3 Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 10.3.3 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. 10.3.4 Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage except for builder's risk insurance. The builder's risk policy will contain or be endorsed to contain a provision providing for 30 days written notice to City of cancellation or nonrenewal, except for nonpayment for which 10 days notice is required. 10.3.5 Self -Insured Retentions. Contractor agrees not to self -insure or to use any self-insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self -insure its obligations to City. If contractor's existing coverage includes a self-insured retention, the self-insured retention must be declared to City. City may review options with the contractor, which may include reduction or elimination of the self-insured retention, substitution of other coverage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. 10.3.6 Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractor's performance under this agreement. 10.3.7 Waiver. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers, or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. 10.3.8 Enforcement of Contract Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 10.3.9 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. 10.3.10 City's Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and/or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractor's payments. Page 7 10.3.11 Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. 10.3.12 Coverage Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 11. RECORDS/REPORTS 11.1 All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. 11.2 No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. 11.3 Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. 11.4 The Contractor is required to keep a daily log of all streetlights serviced, including the pole number (if available) and location of the streetlight, along with a description of any services performed and materials used. Each month, a report shall be prepared from the daily log, giving a brief description of all routine, special event, and emergency activities; as well as the status of the City -provided materials inventory. The activity report shall be attached to the monthly invoice submitted to the City's Administrator. A log will be submitted monthly of all communications from the City of Newport Beach Municipal Operations Department, the City of Newport Beach Police Department, and members of the public to the Contractor, whether or not those communications require a request for service and a description of the action taken from the City communication. 11.5 Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 12. 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 Agreement. 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. 13. INCREASE OR DECREASE IN SCOPE OF WORK City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of work, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit B. In the event the location is withdrawn for a period of less than a full year, Contractor's compensation shall be reduced on a prorated basis. 14. CONFLICTS OF INTEREST 14.1 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 Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 14.2 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 Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 15. NOTICES 15.1 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: Municipal Operations Department Operations Manager City of Newport Beach Page 9 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Phone: 949-644-3011 Fax: 949-646-5204 15.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Adam Kleiman Fluoresco Lighting & Signs 2778 Pomona, Blvd. Pomona, CA 91768 Phone: 909-592-0870 Fax: 909-592-0493 16. NOTICE OF CLAIMS Unless a shorter time is specified elsewhere in this Contract, before making its final request for payment under the Contract Documents, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Contract. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Contract except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the Contract and Contract Documents, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the Tort Claims Act (Govt. Code §§ 900 et seq.). 17. TERMINATION 17.1 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, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 17.2 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 up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all materials purchased in performance of this Agreement. Page 10 iE �i_1►U7_1:7179:Z41VA1.1 M ilgK 18.1 Compliance with all Laws. Contractor 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. 18.2 Waiver. A waiver by City of any term, covenant, or condition in the Contract shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 18.3 Integrated Contract. This Contract represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Contracts of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 18.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Contract and the Exhibits attached hereto, the terms of this Contract shall govern. 18.5 Amendments. This Contract 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. 18.6 Effect of Contractor's Execution. Execution of this Contract 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. 18.7 Controlling Law and Venue. The laws of the State of California shall govern this Contract and all matters relating to it and any action brought relating to this Contract shall be adjudicated in a court of competent jurisdiction in the County of Orange. 18.8 Equal Opportunity Employment. Contractor 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. 18.9 Interpretation. The terms of this Contract 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 Contract or any other rule of construction which might otherwise apply. 18.10 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. 18.11 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. Page 11 18.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date:- f'Ll Y.� Leonie Mulvihill qr(r\ Assistant City Attorney ATTEST: I a Date: By: 66 0 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: / By: Michael F Mayor � CONTRACTOR: Fluoresco Lighting -Sign Maintenance Corp., an Arizona corporation Date: By: LaddKman President Date: dy Meiman Executive Vice President Attachments: Exhibit A - Scope of Work Exhibit B - Schedule of Billing Rates A11-00386 Streetlight Maintenance Service Agreementksa.4.7.11 Page 13 acn 3rr_l SCOPE OF WORK Exhibit A-1 Project Description Furnish all labor, equipment, and supervision to perform general maintenance services for the City's streetlights as a result of normal operational wear and tear. This does not include repair or replacement of materials as a result of collision, mischief, and/or acts of nature. Contractor shall provide an Annual Maintenance & Repair Response Plan that includes a schedule detailing the methodology for visually inspecting all streetlights (including, but not limited to, arterial roadways, residential streets, intersections, and parking lots) not less than every ninety (90) days. All outages identified by the Contractor, City, and the public shall be recorded, repaired, and included as part of an activity report submitted to the City on a monthly basis. The monthly activity report shall detail all inspection and maintenance activities performed by the Contractor. All maintenance work shall be initiated by the Contractor within 48 hours of request by the City. Contractor shall only visually inspect safety lights and report any safety light outages in accordance with the Annual Maintenance & Repair Response Plan. Contractor shall not perform any additional inspection or repair activities to safety lights, traffic signal lights, or the poles that they are attached. City shall furnish a database of all identified streetlights including, but not limited to, the following information: pole identification, location, and type. The Contractor shall report any database errors or omissions as part of the monthly activity report. During the month preceding the contract anniversary the City shall audit and reconcile the database to include additions, deletions, and corrections. The City shall provide the Contractor with the updated database within thirty (30) days of approval by the City. Contractor shall accept responsibility for the maintenance of the streetlight system its "as -is" condition. Streetlights considered to be potentially hazardous to the public, as identified by the Contractor during the normal inspection and maintenance process, shall be reported to the City immediately. Certain materials (poles, bulbs, ballasts, and fixtures) shall be exclusively provided by the City. Upon verbal or written request from the Project Administrator, the City may desire to purchase materials from the Contractor and may require that those materials be stored at the Contractor's facility at no additional fee to the City. Pricing Approach The City intends to award a one (1) year contract with three (3) one year extensions based on a fixed annual maintenance price for the four (4) year term of this contract. Billing shall occur in twelve (12) equal monthly increments per contract year for services provided. The primary purpose of the Quotation Form is to provide the total annual cost for maintenance services, to provide unit rates for additions or reductions to the City's streetlight inventory, and to establish clear payment deductions for contract duties not rendered or not satisfactorily performed. Exhibit A-2 Definitions o Streetlight — City -owned lighting poles, luminaries, and appurtenances of all types and wattages within the public right-of-way. o Safety light — Designated streetlight attached to a pole in conjunction with a traffic signal light. • General Maintenance — Preventative maintenance services including inspection, cleaning, adjustment, replacement, and testing of bulbs, fixtures, ballasts, and basic wiring. o Normal Business Hours — Monday through Friday 7:00am — 5:00pm including holidays. Exhibit A-3 Types of Poles and Fixtures Poles 1212T 1214T 1316T 42D 42D DBL 42D OBS 45D 65D 65D DBL 68D 7003 J 7003 J DBL 7004 J 7004 J DBL AMERON AEGEAN AMERONJSL AMERON JSL DBL AMERON VICTORIAN IMPERIAL MANVILLE PUMCO 500 Fixtures High Pressure Sodium (35-400 watt, 120/240 volts) Series Mercury (100-400 watt) Series Incandescent (2500-4000 lumen) LED (GE, Philips, Synergy) QL (55 watt, 240 volt) Exhibit A-4 Location Map Exhibit A-5 I0c/:II ]ka-1 SCHEDULE OF BILLING RATES Monthly Unit Cost per Streetlight Total Annual Cost (approximately 5,900 units) Hourly Rate Minimum Hours Per Response Response Time $0.73 $51,684 $79.00 1.5 48 hours (portal to portal) Exhibit B-1 To: Ail Fluoresco Lighting - Sign Maintenance Corporation Employees From: Thomas Brockley, President, Everbrite, LLC Date: February 14, 2014 Re: Changes Ahead for Fluoresco and Everbrite, LLC I am pleased to announce that Everbrite, LLC has acquired the assets of Fluoresco Lighting - Sign Maintenance Corporation. Everbrite, as you may know, is one of the largest sign companies in the US with six plants in the US and a joint venture plant in China. Fluoresco will continue to operate for approximately three months in order for Everbrite to obtain the necessary licenses. Once the licenses are obtained, Fluoresco will cease operations and Everbrite will operate the Fluoresco business through a newly created subsidiary called Fluoresco Services LLC. We have been looking for a partner with talented people, strong processes and a good name in the industry to grow our business into the western US. We believe that we have found that with Ladd and Andy Kleiman and the rest of the Fluoresco family. We know you may have many questions and look forward to meeting with you in the weeks ahead and to growing our combined businesses together. e�%�'G� Thomas Brockley President 031009-0175\14529194.1 Everbrlte, LLC 4949 S, t 10th Street, P.{J, Box 20020, Greenfield, Wisconsin 53220-0020 Phone 414-529-3500 FAX: 414-524-7191 .J E ver e To: Ail Fluoresco Lighting - Sign Maintenance Corporation Employees From: Thomas Brockley, President, Everbrite, LLC Date: February 14, 2014 Re: Changes Ahead for Fluoresco and Everbrite, LLC I am pleased to announce that Everbrite, LLC has acquired the assets of Fluoresco Lighting - Sign Maintenance Corporation. Everbrite, as you may know, is one of the largest sign companies in the US with six plants in the US and a joint venture plant in China. Fluoresco will continue to operate for approximately three months in order for Everbrite to obtain the necessary licenses. Once the licenses are obtained, Fluoresco will cease operations and Everbrite will operate the Fluoresco business through a newly created subsidiary called Fluoresco Services LLC. We have been looking for a partner with talented people, strong processes and a good name in the industry to grow our business into the western US. We believe that we have found that with Ladd and Andy Kleiman and the rest of the Fluoresco family. We know you may have many questions and look forward to meeting with you in the weeks ahead and to growing our combined businesses together. e�%�'G� Thomas Brockley President 031009-0175\14529194.1 Everbrlte, LLC 4949 S, t 10th Street, P.{J, Box 20020, Greenfield, Wisconsin 53220-0020 Phone 414-529-3500 FAX: 414-524-7191 OP ID: SM '`'� ��'' CERTIFICATE OF LIABILITY INSURANCE D0811312014Y) 08113/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Alternative Risk Resources LLC 250 Bishops Way Ste 102 Brookfield, WI 53005 Michael C. Wosick NCONTACT AME Mike Wosick AICrN Ext :262-754-9100 arc Nu :262'754-9114 ADDRESS: mwosick@altriskresources.com PROIJUGEK CUSTOMER ID I: EVERB-1 INSURER(S) AFFORDING COVERAGE NAIC I INSURED Everbrite West LLC INSURER A: Zu rich -American Ins. Co. 16535 Fluoresce Lighting Sign- Maintenance Carp Fluoresco Services LLC INSURER B: Liberty Insurance Underwriters 19917 INSURER C: INSURER D: Herman Dreier INSURER E: 5505 South Nogales Hwy INSURER F: Tucson AZ 85706 COVERAGES CERTIFICATE NUMBER: REVISION NL1MRFR- 1 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TR TYPE OF INSURANCEINSRPOLICY ADOL SUBR NUMBER POLICY EFF MMDDIYYYY POLICY EXP MM DDIYYYY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,00 A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE Fx_1 OCCUR GLO 8196192 03101/2014 03101!2015 A AG 0 RENTED PREMISES Ea occurrence $ 500,00 MED EXP (Any one person) $ 10,00 PERSONAL & ADV INJURY $ 1,000,00 A X BROAD FORM VENDOR X CONTRACTUAL GENERAL AGGREGATE $ 2,000,000 A GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS- COMP/OP AGG $ 2,000,000 PROPOLICY JEC X LOC $ A AUTOMOBILE X LIABILITY ANY AUTO BAP 8196193 03/01/2014 03/01/2015 COMBINED SINGLE LIMIT $ 1,000,000 (Ea accident) BODILY INJURY (Per person) $ ALL OWNED AUTOS BODILY INJURY (Per accident) $ SCHEDULED AUTOS HIRED AUTOS PROPERTY DAMAGE $ (PER ACCIDENT) PX NON -OWNED AUTOS $ A 250 Comp 500 coil $ X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 5,000,000 AGGREGATE $ 5,000,00 B EXCESS LIAB CLAIMS -MADE 1000036594-05 03!0112014 0310112015 DEDUCTIBLE $ X RETENTION $ 10,000 $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNERlEXECUTIVE YIN OFFICERIMEMBER EXCLUDED? (Mandatory in NH) N ( A WC 8196191 03/01/2014 03101(2015 X WC STATU- OTH- TORY LIMITS ER E L EACH ACCIDENT $ 1,000,000 E DISEASE - EA EMPLOYEE $ 1,000,00 If yes, describe under DESCRIPTION OF OPERATIONS below E L DISEASE- POLICY LIMIT 1 $ 1,000,00 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Re: Any and all jobs See holder notes: City of Newport Beach 100 Civis Center Dr Newport Beach, CA 92660 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009109) The ACORD name and logo are registered marks of ACORD Additional Insured — Automatic — Owners, Lessees Or Contractors 0 ZURICH Policy No. Exp. Date of Pol. Eff. Date of End. Agency No. Addl. Prem. Return Prem. GLO 8196192 03/01/14 03/01/15 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. Named Insured: Everbrite West LLC/ Fluoresco Lighting Sign Address (including ZIP Code): P O Box 27042 Tucson AZ 85726 This endorsement modifies insurance provided under the: Commercial General Liability Coverage Part A. Section II — Who Is An Insured is amended to include as an insured any person or organization who you are re- quired to add as an additional insured on this policy under a arritt.en contract or written agreement. B. The insurance provided to the additional insured person or organization applies only to "bodily injury", "property damage" or "personal and advertising injury" covered under SECTION I - Coverage A - Bodily Injury And Prop- erty Damage Liability and Section I - Coverage B - Personal And Advertising Injury Liability, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions: or 2. The acts or omissions of those acting on your behalf, and resulting directly from: a. Your ongoing operations performed for the additional insured, which is the subject of the written contractor written agreement; or b. "Your work" completed as included in the "products -completed operations hazard", performed for the addi- tional insured, which is the subject of the written contract or written agreement. C. However, regardless of the provisions of paragraphs A. and B. above: 1. We will not extend any insurance coverage to any additional insured person or organization: a. That is not provided to you in this policy; or b. That is any broader coverage than you are required to provide to the additional insured person or organiza- tion in the written contract or written agreement.; and 2. We will not. provide Limits of Insurance to any additional insured person or organization that exceed the lower of: a. The Limits of Irnsurance provided to you in this policy; or b. The Limits of Insurance you are required to provide in the written contract or written agreement. Includes copyrighted material of Insurance Serilces Office, Inc., with its permission. ti -GL -1175-B CW (3/2007) Page 1 of 2 D. The insurance provided to the additional insured person or organization does not apply to: "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering or failure to render any professional architectural, engineering or surveying services including: 1. The preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; and 2. Supervisory, inspection, architectural or engineering activities. E. The additional insured must see to it. that: 1. We are notified as soon as practicable of an "occurrence" or offense that may result ilia claim; 2. We receive written notice of a claim or "suit" as soon as practicable; and 3. A request for defense and indemnity of the claim or "suit" will promptly be broughtagainst any policy issued by another insurer under which the additional insured may be an insured in any capacity. This provision does not apply to insurance on which the additional insured is a Named Insured, if the written contract or written agree- ment requires that this coverage be primary and non-contributory. F. For the coverage provided by this endorsement: 1. The following paragraph is added to Paragraph 4.a. of the Other Insurance Condition of Section IV — Com- mercial General Liability Conditions: This insurance is primary insurance as respects our coverage to the additional insured person or organization, where the written contract or written agreement requires that this insurance be primary and non-contributory. In that event, we will not seek contribution from any other insurance policy available to the additional insured on which the additional insured person or organization is a Named Insured. 4.2. The following paragraph is added to Paragraph 4.b. of the Other Insurance Condition of Section IV — Com- mercial General Liability Conditions: This insurance is excess over: Any of the other insurance, whether primary, excess, contingent or on any other basis, available to an additional insured, in which the additional insured on our policy is also covered as an additional insured by attachment of an endorsement to another policy providing coverage for the same "occurrence", claim or "suit"_ This provision does not apply to any policy in which the additional insured is a Named Insured on such other policy and where our policy is required by written contract or written agreement to provide coverage to the additional insured on a primary and non-contributory basis. G. This endorsement does not apply to an additional insured which has been added to this policy by an endorsement showing the additional insured in a Schedule of additional insureds, and which endorsementt applies specifically to that identified additional insured. Any provisions in this Coverage Part not changed by the terms and conditions of this endorsementcontinue to apply as written. Includes copyrighted material of Insurance Services Office, Inc., with its permission. U -GL -1175 S CW (3/2007) Page 2 of 2 WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE POLICY WC 00 0313 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement changes the policy to which it is attached effective on the inception date of the policy unless a different date is indicated below. This endorsement, effective on 03/01/14 at 12:01 A.M. standard time, forms a part of (DATE) Policy No. WC 8196191 of the Zurich American Insurance Company issued to Everbrite West, LLC Fluoresco Lighting Sign Maintenance Corp Fluoresco Services, LLC Premium (if any) $ Authorized Representative We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us. This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule The City of Newport Beach, its officers, officials & volunteers WC 124(4-84) WC 00 03 13 Copyright 1983 National Council on Compensation Insurance. Page 1 of 1 �gW PpRT BEAC CITY OF FlT NEWPORT REACH ✓ !UN 2 8 2011 City Council Staff Report Agenda Item No. io June 28, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Municipal Operations Department Mark Harmon, Municipal Operations Department Director 949 644-3055, mharmon@newportbeachca.gov PREPARED BY: Maurice Turner, Administrative Manager APPROVED:G��� I TITLE: Streetlight Maintenance Service Agreement ABSTRACT: Currently, the Municipal Operations Department Electrical Division staff maintains an inventory of over 20 types of streetlights and lighting fixtures totaling approximately 5,900 units. The goal of the contract is to improve service to the community by providing the City with a proactive maintenance plan that minimizes the volume and duration of streetlight outages through the use of dedicated Contractor equipment and staff. RECOMMENDATION: Approve the contract between Fluoresco Lighting & Signs, Inc. of Pomona and the City of Newport Beach for streetlight maintenance services. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this service. It will be expensed to the Electrical Contract Services account in the Municipal Operations Department, 5300-8088. DISCUSSION: Currently an Electrical Supervisor, Crew Chief and two Electricians dedicate approximately 50% of their time to the repair of about 1,000 streetlights annually. The estimated total budgeted cost of the repair program is about $250,000 for FY 2010-11. Night drives and citizen reports are utilized to identify streetlights that need to be serviced. The waiting list for streetlights to be repaired is about 50-60 days; occasionally this number grows by 30-60 days due to damage caused by shorts, contractor dig -ups, vehicular accidents, rain, and other incidents. Streetlight Maintenance Service Agreement June 28, 2011 Page 2 On April 14, staff issued a request for proposals and received four responses by the May 5 deadline. A review panel consisting of Municipal Operations and Public Works Departments' staff rated each proposal based equally on price, qualifications, municipal experience, Newport Beach experience, proposed annual plan, and reporting technology. Although Mike Kilbride submitted the lowest priced proposal, the proposal was not considered based on insufficient experience. Fluoresco Lighting & Signs was determined to be the lowest priced, responsive proposer. Fluoresco performs streetlight maintenance in a number of municipalities including Glendale, AZ and for a five -city cooperative in the San Diego area. Proposals Received Mike Kilbride $15,576 Fluoresco $51,684 Republic $58,056 Econolite $64,428 The Contractor will be required to furnish all labor, equipment, and supervision to perform general maintenance services for the City's streetlights necessary as a result of normal operational wear and tear, such as burned out bulbs, non-functioning ballasts, and sensors that do not switch on the lights at dusk, etc. This does not include repair or replacement of materials as a result of collision, mischief, and/or acts of nature. In order to complete the work in an accurate and timely fashion the Contractor will adhere to its Annual Maintenance & Repair Response Plan that includes a schedule detailing the methodology for visually inspecting all streetlights (including, but not limited to, arterial roadways, residential streets, intersections, and parking lots) not less than every ninety (90) days. A monthly activity report shall detail all inspection and maintenance activities performed by the Contractor. All maintenance work shall be initiated by the Contractor within 48 hours of request by the City. The term of the contract is for one year with the option for three one year extensions in order to provide the City with a high-level of flexibility entering into this new area of contracted service. The contract is eligible for a maximum annual CPI adjustment of 3.0% after the first year of service. As a result of this contract two positions are being eliminated in the FY 2011-12 Budget, representing an annual savings of about $200,000. The contractor will have direct access to the existing City Quest system for reduced response times and increased accountability. This will lead to better service at a lower cost. 0 Streetlight Maintenance Service Agreement June 28, 2011 Page 3 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Municipal Operations Department Director Attachments: A. Agreement B. Request for Proposal 3 AGREEMENT FOR CITYWIDE STREETLIGHT MAINTENANCE SERVICES WITH FLUORESCO LIGHTING -SIGN MAINTENANCE CORP. THIS AGREEMENT FOR CITYWIDE STREETLIGHT MAINTENANCE SERVICES ("Agreement' or "Contract") -is made and entered into as of this 28th day of June, 2011, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation and charter city ("City"), and Fluoresco Lighting -Sign Maintenance Corp., an Arizona corporation ("Contractor"), whose principal place of business is 2778 Pomona Blvd, Pomona, CA 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 requires general maintenance of city -owned streetlights within the public right-of-way. C. City desires to engage Contractor to maintain City streetlights ("Project'). D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services arid has committed to perform all work required for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The initial term of this Agreement shall commence on the above written date, and shall be for a period of one (1) year. The term of this Agreement shall be extended for three (3) additional one (1) year terms with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty.(30) days before the end of the initial term or any extended term, of its intent to terminate this -Agreement at the conclusion of the initial term or any extension. The term of the Agreement shall not extend beyond June 30, 2015, unless terminated earlier as set forth herein. 2. SCOPE OF WORK 2.1 Contractor shall- perform all the work described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference ("Services" or "Work"). 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 Contractor is experienced in performing the Work contemplated herein and, in light of such status 0 and experience, Contractor covenants that it shall follow the highest professional standards in performing the Work 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. 2.2 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, unless otherwise described in the Scope of Work. 3.1 Time is of the essence in the performance of Services under this Agreement and Contractor shall perform the Services in accordance with the schedule included in Exhibit A. The failure by Contractor to strictly adhere to the schedule may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Contractor'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. 3.3 Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than 30 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 Contractors control. 3.4 For all time periods not specifically set forth herein, Contractor shall respond in the most expedient and appropriate manner under the circumstances. 4. COMPENSATION 4.1 City shall pay Contractor an amount not to exceed Fifty-one thousand Six hundred eighty-four Dollars and 00/100 ($51,684.00) per contract year, subject to the annual consumer price index adjustment, without written amendment to the Agreement in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. . 4.2 Consumer Price Index. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the rates to be paid by the City as set forth in Exhibit B shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 3.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original rate by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, if the adjustment is to occur effective June 1, 2011, the index to be used for the. numerator is the index for the month of March Page 2 5 2011 and the index to be used for the denominator is March 2010. The "Consumer Price Index' to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States. Department of Labor, Bureau of Labor Statistics .(1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this agreement be reduced below the Rate in effect immediately preceding such adjustment. The maximum increase to the Rate, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 3.0% of the Rate in effect immediately preceding such adjustment. 4.3 Invoices. Contractor shall submit monthly invoices for the Work performed the preceding month. City shall "pay Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. 5. ADMINISTRATION This Agreement will be administered by the Municipal Operations Department. The Operations Manager, or his/her designee, 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. 6. TYPE AND INSTALLATION OF MATERIALS/STANDARD OF CARE 6.1 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 Administrator. 6.2 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 highest 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. 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 subcontractors, 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, Page 3 (p 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 To the fullest extent permitted by law, Contractor 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 Contractor's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 7.3.1 Notwithstanding the foregoing, nothing herein shall be construed to require Contractor 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 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 be liable for any private or public property damaged. during the performance of the Project Work. 7.5 To the extent authorized by law, as much of the money due Contractor under and by virtue of the Agreement as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 7.6 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 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. Page 4 I% Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details of the performance or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 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 10.1 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. The cost of such insurance shall be included in Contractor's bid. 10.2 Coverage and Limit Requirements. 10.2.1 . Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employers Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractors employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. 10.2.2 General Liability. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000) Products and Completed Operations Aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. 10.2.3 Automobile Liability. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor Page 5 g 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 accident. 10.3 Other Insurance Provisions or Requirements 10.3.1 Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and an additional insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this Agreement. All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 10.3.2 General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 10.3.2.1 City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Contractor shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. 10.3.2.2 Contractor's insurance coverage shall be primary insurance and/or primary source of recovery as respects City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to the City. Any insurance or self-insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 10.3.2.3 Contractor's insurance shall. apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 10.3.3 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 Page 6 9 with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 10.3.4 Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage except for builder's risk insurance. The builders risk policy will contain or be endorsed to contain a provision providing for 30 days written notice to City of cancellation or nonrenewal, except for nonpayment for which 10 days notice is required. 10.3.5 Self -Insured Retentions. Contractor agrees not to self -insure or to use any self-insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self -insure its obligations to City. If contractors existing coverage includes a self-insured retention, the self-insured retention must be declared to City. City may review options with the contractor, which may include reduction or elimination of the self-insured retention, substitution of other coverage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. 10.3.6 Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractors performance under this agreement. 10.3.7 Waiver. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers, or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. 10.3.8 Enforcement of Contract Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 10.3.9 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. 10.3.10 City's Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and/or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractor's payments. Page 7 ID 10.3.11 Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. 10.3.12 Coverage Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 11. RECORDS/REPORTS 11.1 All Contractor's books and other business records, or such part as may be used in the performance of this Agreement, shall be subject to inspection and audit by any authorized City representative during regular business hours. 11.2 No report, information, or other data given to or prepared or assembled by Contractor pursuant to this Agreement may be made available to any individual or organization without prior approval by City. 11.3 Contractor shall, at such time and in such form as City may require, provide reports concerning the status or cost of services required by this Agreement. 11.4 The Contractor is required to keep a daily log of all streetlights serviced, including the pole number (if available) and location of the streetlight, along with a description of any services performed and materials used. Each month, a report shall be prepared from the daily log, giving a brief description of all routine, special event, and emergency activities; as well as the status of the City -provided materials inventory. The activity report shall be attached to the monthly invoice submitted to the City's Administrator. A log will be submitted monthly of all communications from the City of Newport Beach Municipal Operations Department, the City of Newport Beach Police Department, and members of the public to the Contractor, whether or not those communications require a request for service and a description of the action taken from the City communication. 11.5 Contractor shall keep records and invoices in connection with its work to be performed under this Agreement. Contractor shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Contractor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records. Contractor shall maintain and allow inspection of all work,. data, documents, Page 8 proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment under this Agreement. 12. 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 Agreement. 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. 13. INCREASE OR DECREASE IN SCOPE OF WORK City reserves the right to withdraw certain locations from the Scope of Work to be performed by Contractor pursuant to this Agreement. City shall notify Contractor in writing of its intent to do so at least thirty (30) days prior to the effective date of withdrawal of any location. In the event a location is withdrawn from the scope of work, compensation to Contractor shall be reduced in accordance with the Contractor's unit costs specified in Exhibit B. In the event the location is withdrawn for a period of less than a full year, Contractor's compensation shall be reduced on a prorated basis. 14. CONFLICTS OF INTEREST 14.1 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 Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 14.2 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 Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 15. NOTICES 15.1 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: Municipal Operations Department Operations Manager City of Newport Beach Page 9 1)- 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Phone: 949-644-3011 Fax: 949-646-5204 15.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Adam Kleiman Fluoresco Lighting & Signs 2778 Pomona, Blvd. Pomona, CA 91768 Phone: 909-592-0870 Fax: 909-592-0493 16. NOTICE OF CLAIMS Unless a shorter time is specified elsewhere in this Contract, before making its final request for payment under the Contract Documents, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Contract. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Contract except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the Contract and Contract Documents, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the Tort Claims Act (Govt. Code §§ 900 et seq.). 17. TERMINATION 17.1 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, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 17.2 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 up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all materials purchased in performance of this Agreement. Page 10 13 18. STANDARD PROVISIONS 18.1 Compliance with all Laws. Contractor 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. 18.2 Waiver. A waiver by City of any term, covenant, or condition in the Contract shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 18.3 Integrated Contract. This Contract represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Contracts of whatsoever kind or nature are merged herein. No verbal Contract or implied covenant shall be held to vary the provisions herein. 18.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Contract and the Exhibits attached hereto, the terms of this Contract shall govern. 18.5 Amendments. This Contract 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. 18.6 Effect of Contractors Execution. Execution of this Contract 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. 18.7 Controlling Law and Venue. The laws of the State of California shall govern this Contract and all matters relating to it and any action brought relating to this Contract shall be adjudicated in a court of competent jurisdiction in the County of Orange. 18.8 Equal Opportunity Employment. Contractor 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. 18.9 Interpretation. The terms of this Contract 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 Contract or any other rule of construction which might otherwise apply. 18.10 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. 18.11 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. Page 11 �� 18.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Page 12 15 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFIC . OF TfJE,CITY ATTORNEY Date: Leonie Mulvihill Assistant City Attorney ATTEST: v By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Michael F. Henn Mayor CONTRACTOR: Maintenance corporation By: Ladd Kleiman President Fluoresco Lighting -Sign Corp., an Arizona By: Andy Kleiman Executive Vice President Attachments: Exhibit A - Scope of Work Exhibit B - Schedule of Billing Rates A 11-00386 Street fight Maintenance Service Agreement ksa.4.7. 11 Page 13 �lP EXHIBIT A SCOPE OF WORK Exhibit A-1 0 Project Description Furnish all labor, equipment, and supervision to perform general maintenance services for the City's streetlights as a result of normal operational wear and tear. This does not include repair or replacement of materials as a result of collision, mischief, and/or acts of nature. Contractor shall provide an Annual Maintenance & Repair Response Plan that includes a schedule detailing the methodology for visually inspecting all streetlights (including, but not limited to, arterial roadways, residential streets, intersections, and parking lots) not less than every ninety (90) days. All outages identified by the Contractor, City, and the public shall be recorded, repaired, and included as part of an activity report submitted to the City on a monthly basis. The monthly activity report shall detail all inspection and maintenance activities performed by the Contractor. All maintenance work shall be initiated by the Contractor within 48 hours of request by the City. Contractor shall only visually inspect safety lights and report any safety light outages in accordance with the Annual Maintenance & Repair Response Plan. Contractor shall not perform any additional inspection or repair activities to safety lights, traffic signal lights, or the poles that they are attached. City shall furnish a database of all identified streetlights including, but not limited to, the following information: pole identification, location, and type. The Contractor shall report any database errors or omissions as part of the monthly activity report. During the month preceding the contract anniversary the City shall audit and reconcile the database to include additions, deletions, and corrections. The City shall provide the Contractor with the updated database within thirty (30) days of approval by the City. Contractor shall accept responsibility for the maintenance of the streetlight system its "as -is" condition. Streetlights considered to be potentially hazardous to the public, as identified by the Contractor during the normal inspection and maintenance process, shall be reported -to the City immediately. Certain materials (poles, bulbs, ballasts, and fixtures) shall be exclusively provided by the City. Upon verbal or written request from the Project Administrator, the City may desire to purchase materials from the Contractor and may require that those materials be stored at the Contractor's facility at no additional fee to the City. Pricing Approach The City intends to award a one (1) year contract with three (3) one year extensions based on a fixed annual maintenance price for the four (4) year term of this contract. Billing shall occur in twelve (12) equal monthly increments per contract year for services provided. The primary purpose of the Quotation Form is to provide the total annual cost for maintenance services, to provide unit rates for additions or reductions to the City's streetlight inventory, and to establish clear payment deductions for contract duties not rendered or not satisfactorily performed. Exhibit A-2 19 Definitions • Streetlight — City -owned lighting poles, luminaries, and appurtenances of all types and wattages within the public right-of-way. • Safety light — Designated streetlight attached to a pole in conjunction with a traffic signal light. • General Maintenance — Preventative maintenance services including inspection, cleaning, adjustment, replacement, and testing of bulbs, fixtures, ballasts, and basic wiring. o Normal Business Hours — Monday through Friday 7:00am — 5:00pm including holidays. Exhibit A-3 Types of Poles and Fixtures Poles 1212T 1214T 1316T 42D 42D DBL 42D OBS 45D 65D 65D DBL 68D 7003 J 7003 J DBL 7004 J 7004 J DBL AMERON AEGEAN AMERON JSL AMERON JSL DBL AMERON VICTORIAN IMPERIAL MANVILLE PUMCO 500 Fixtures High Pressure Sodium (35-400 watt, 120/240 volts) Series Mercury (100-400 watt) Series Incandescent (2500-4000 lumen) LED (GE, Philips, Synergy) QL (55 watt, 240 volt) Exhibit A-4 go Location Map ............ II Al, . NM X-A.,;s 4, 11 Ti. Exhibit A-5 X N If-IM-. SCHEDULE OF BILLING RATES Monthly Unit Cost per Streetlight Total Annual Cost (approximately 5,900 units) Hourly Rate Minimum Hours Per Response Response Time $0.73 $79.00 1.5 48 hours (portal to portal) Exhibit B-1 as April 14, 2011 Name Company Address City, CA ZIPCODE Subject: Request for Quotation for Streetlight Maintenance Service The City of Newport Beach is issuing this request for quotations for annual streetlight maintenance services including preventative maintenance services through June 30, 2015. Currently, the City maintains an inventory of over 20 types of streetlights and lighting fixtures totaling approximately 5,900 units. The City requests that interested vendors review the Scope of Work (Attachment A), Quotation Form (Attachment B), Insurance Requirements (Attachment C), and Location Map (Attachment D) in order to formulate a proactive maintenance plan that minimizes the volume and duration of streetlight outages through the use of dedicated equipment and staff. Please complete and return the signed Quotation Form (Attachment B), Annual Maintenance & Repair Response Plan, and Statement of Qualifications by mail or email no later than 11:00 AM on Thursday, May 5, 2011. Mail: City of Newport Beach — Municipal Operations Department 3300 Newport Blvd, P.O. Box 1768, Newport Beach, CA 92658 Attention: Maurice Turner Email: mturner@newportbeachca.gov Please contact Maurice Turner, Administrative Manager, at (949) 644-3057 if you have any questions. Again, we invite you to respond to this request for quotations, and look forward to evaluating your response based on cost and qualifications. Sincerely, 4 L Mark Harmon, Director Municipal Operations Department Attachments: Scope of Work, Quotation Form, Insurance Requirements, Location Map, Draft Agreement &A ATTACHMENT A: SCOPE OF WORK Project Description Furnish all labor, equipment, and supervision to perform general maintenance services. for the City's streetlights as a result of normal operational wear and tear. This does not include repair or replacement of materials as a result of collision, mischief, and/or acts of nature. Contractor shall provide an Annual Maintenance & Repair Response Plan that includes a schedule detailing the methodology for visually inspecting all streetlights (including, but not limited to, arterial roadways, residential streets, intersections, and parking lots) not less than every ninety (90) days. All outages identified by the Contractor, City, and the public shall be recorded, repaired, and included as part of an activity report submitted to the City on a monthly basis. The monthly activity report shall detail all inspection and maintenance activities performed by the Contractor. All maintenance work shall be initiated by the Contractor within 48 hours of request by the City. Contractor shall only visually inspect safety lights and report any safety light outages in accordance with the Annual Maintenance & Repair Response Plan. Contractor shall not perform any additional inspection or repair activities to safety lights, traffic signal lights, or the poles that they are attached. City shall furnish a database of all identified streetlights including, but not limited to, the following information: pole identification, location, and type. The Contractor shall report any database errors or omissions as part of the monthly activity report. During the month preceding the contract anniversary the City shall audit and reconcile the database to include additions, deletions, and corrections. The updated database shall be added to the contract scope of work as an amendment along with any associated increase or decrease in scope of work. The City shall provide the Contractor with the contract amendment and updated database within thirty (30) days of approval by the City. Contractor shall accept responsibility for the maintenance of the streetlight system its "as -is" condition. Streetlights considered to be potentially hazardous to the public, as identified by the Contractor during the normal inspection and maintenance process, shall be reported to the City immediately. Certain materials (poles, bulbs, ballasts, and fixtures) shall be exclusively provided by the City. Upon verbal or written request from the Project Administrator, the City may desire to purchase materials from the Contractor and may require that those materials be stored at the Contractor's facility at no additional fee to the City. Pricing Approach The City intends to award a one (1) year contract with three (3) one year extensions based on a fixed annual maintenance price for the four (4) year term of this contract. A Billing shall occur in twelve (12) equal monthly increments per contract year for services provided. The primary purpose of the Quotation Form is to provide the total annual cost for maintenance services, to provide unit rates for additions or reductions to the City's streetlight inventory, and to establish clear payment deductions for contract duties not rendered or not satisfactorily performed. Definitions o Streetlight — City -owned lighting poles, luminaries, and appurtenances of all types and wattages within the public right-of-way. • Safety light — Designated streetlight attached to a pole in conjunction with a traffic signal light. a General Maintenance — Preventative maintenance services including inspection, cleaning, adjustment, replacement, and testing of bulbs, fixtures, ballasts, and basic wiring. • Normal Business Hours — Monday through Friday 7:00am — 5:00pm including holidays. a5 Types of Poles and Fixtures Poles 1212T 1214T 1316T 42D 42D DBL 42D OBS 45D 65D 65D DBL 68D 7003 J 7003 J DBL 7004 J 7004 J DBL AMERON AEGEAN AMERONJSL AMERON JSL DBL AMERON VICTORIAN IMPERIAL MANVILLE PUMCO 500 Fixtures High Pressure Sodium (35-400 watt, 120/240 volts) Series Mercury (100-400 watt) Series Incandescent (2500-4000 lumen) LED (GE, Philips, Synergy) QL (55 watt, 240 volt) )6 ATTACHMENT B: QUOTATION FORM Monthly Unit Cost per Streetlight Total Annual Cost (approximately 5,900 units) / have reviewed the following attachments: Scope of Work Insurance Requirements / have included the following: Annual Maintenance & Repair Response Plan Statement of Qualifications Signature Printed Name and Title Date Company Yes_ No Yes_ No Yes No Yes No a1 ATTACHMENT C: INSURANCE REQUIREMENTS 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. The cost of such insurance shall be included in Contractor's billing rates. 1. Coverage and Limit Requirements. a. Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. 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, Section 3700 for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. b. General Liability. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000) Products and Completed Operations Aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. c. Automobile Liability. 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 accident. 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. W63 ATTACHMENT ®: LOCATION MAP i A detailed map and inventory of the 5,931 streetlights is available at: www.NewportBeachCA.gov/Utilities -4 Electrical Division — Streetlight Maintenance Information P ATTACHMENT E: SAMPLE AGREEMENT 30