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HomeMy WebLinkAbout08 - Traffic Signal Modernization Project Phases - Purchase ContractCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 8 May 11, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Brad Sommers, Senior Civil Engineer 949 - 644 -3326 or bsommers @city.newport- beach.ca.us SUBJECT: TRAFFIC SIGNAL MODERNIZATION PROJECT PHASES 4 AND 7 - APPROVAL OF PURCHASE CONTRACT WITH ECONOLITE CONTROL PRODUCTS, INC. RECOMMENDATION: Approve Purchase Contract with Econolite Control Products, Inc. of Anaheim, California, for purchase and installation of advanced traffic signal management equipment for Phases 4 and 7 of the Traffic Signal Modernization Project, at a not to exceed price of $230,972.93 and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: During the initial design of the Citywide Traffic Signal Modernization project, staff completed a qualifications -based selection process to determine the best qualified vendor for the traffic signal control hardware and software. Staff interviewed each vendor and completed an extensive evaluation of the products and services of seven different manufacturers and suppliers of traffic control equipment. Staff reviewed each firm's qualifications, past experience on similar projects, and availability before selecting Econolite as the best qualified firm to provide the hardware and software for our City- wide Traffic Signal Modernization project. Phases 1, 2, and 3 have been completed and staff is now ready to construct Phases 4 and 7. The attached exhibit shows the completed, current, and planned Traffic Signal Modernization project corridors. Construction of Phase 4 (West Newport) and Phase 7 (Balboa Peninsula) of the Traffic Signal Modernization Project have been combined to expedite deployment of the new traffic signal system. The project includes installation of fiber optic communications, 7 CCTV cameras, and new traffic signal control equipment at 30 existing signalized intersections within West Newport and along the Balboa Peninsula. Additionally, the project will rehabilitate four existing traffic signals. Four of the 30 traffic signals within the project area have previously been rehabilitated with new traffic signal control equipment. Therefore, traffic signal control equipment upgrades are only required at 22 locations, while the project will install communication infrastructure to all thirty locations. Traffic Signal Modernization Project Phases 4 and 7 - Approval of Purchase Contract with Econolite Control Products, Inc. May11, 2010 Page 2 As part of the Phase 4 and Phase 7 Traffic Signal Modernization Project, Econolite, Inc. has prepared a proposal to provide and install advanced traffic management equipment necessary to upgrade the traffic signals to be compatible with the Traffic Management Center and Econolite Centracs Traffic Management Software. The Econolite Proposal has provisions for the following: 1. Furnish 24 Econolite ASC /3 Advanced Traffic Signal Controllers (includes two spare controllers); 2. Furnish Econolite Traffic Signal Management Equipment; 3. Furnish four Traffic Signal Control Cabinets for intersections requiring replacement; 4. Provide installation and modification labor for provided Econolite Equipment; 5. Provide support to City Staff for the integration of the modernized intersections; The Econolite " Centracs" traffic management system requires Econolite traffic signal control equipment, such as the Econolite ASC /3 traffic signal controllers, to operate efficiently and access the system's utilities. As Econolite has been selected as the vendor for these products, staff will continue to purchase equipment directly from Econolite to build out and maintain the traffic signal system. A separate contract with Traffic Development Services, Inc. will construct the fiber optic infrastructure for the project. Environmental Review: The project was determined to be exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 of the CEQA Implementing Guidelines at the time the project was authorized by the City Council. This exemption covers the repair, maintenance and minor alteration of existing public facilities with negligible expansion. Funding Availability: There are sufficient funds available in the following accounts for the project: Account Description Traffic Signal Modernization Phases 4/7 09/10 Traffic Signal Rehabilitation Prepared by: rad Sommers Senior Civil Engineer Account Number 7281- C3002006 7261- C3001007 Total: Submitted be Amount $ 181,000.00 $ 49,972.93 $ 230,972.93 KG. Badum Works Director Attachments: Purchase Contract Traffic Signal Modernization Exhibit CONTRACT WITH ECONOLITE CONTROL PRODUCTS, INC. FOR PURCHASE AND INSTALLATION OF TRAFFIC SIGNAL CONTROL EQUIPMENT FOR PHASES 4 AND 7 OF THE TRAFFIC SIGNAL MODERNIZATION PROJECT THIS CONTRACT is made and entered into as of this _ day of May, 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City ( "City "), and ECONOLITE CONTROL PRODUCTS, INC., a California corporation whose principal place of business is 3360 E. La Palma Ave., Anaheim, CA 92806, ( "Contractor "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. As part of Phase Four (West Newport) and Phase Seven (Peninsula) of the Traffic Signal Modernization Project ('Project'), City desires to purchase necessary traffic signal equipment from Contractor and to engage Contractor for installation of said equipment as detailed in the attached Scope of Work (Exhibit A). C. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. D. Contractor is a manufacturer and supplier of traffic control equipment, advanced traffic management systems and traffic controller firmware. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SCOPE OF WORK Contractor shall provide all tangible items and perform all the services described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. In consideration of the payment of the Purchase Price and subject to all the terms and conditions hereof, Contractor shall: (a) Sell to City, and install, equipment (hereinafter referred to as "the System ") listed and set forth in the Scope of Work attached hereto as Exhibit A and incorporated in full by this reference. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Contractor shall complete the Project installation, implementation and acceptance testing within the time set forth in Section 2.2 below. The failure by Contractor to meet this schedule may result in termination of this Agreement by City as outlined in Section 17. 2.1 Force Maieur The time period(s) specified in Exhibit A for performance of services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including but not restricted to acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, and /or acts of any governmental agency, including the City, if Contractor shall within ten (10) days of the commencement of such delay notify City in writing of the cause of the delay. City shall ascertain the facts and extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the City such delay is justified. City's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in performance of this Agreement, however caused, Contractor's sole remedy being extension of the Agreement pursuant to this Section. 2.2 Term Unless earlier terminated in accordance with Section 17 of this Agreement, this Agreement shall continue in full force and effect until completion of the services agreed to herein or until July 1, 2011, whichever occurs first. 3. COMPENSATION As full compensation for the performance and completion of the Project as required by the Scope of Work, City shall pay to Contractor and Contractor accepts as the full Purchase Price the sum of Two Hundred, Thirty Thousand, Nine Hundred Seventy Two Dollars and Ninety Three Cents ($230,972.93). Contractor shall not receive any additional compensation unless approved in advance by the City in writing. 3.1 Payment for Labor. Subject to the terms of Section 3.D of this Agreement, City shall make monthly progress payments for labor as the Project work proceeds. Contractor shall prepare monthly invoices reflecting labor done during the previous one -month period. Payments for labor shall be based on the hourly rates and other fees set forth in Exhibit A. 3.2 Payment for Equipment Installed. Subject to the terms of Section 3.D of this Agreement, payments for equipment, including any software installed on such equipment, shall be payable upon installation of such equipment at the City after such equipment successfully passes Installation Testing. Installation Testing shall include full operation of the installed equipment at the time of traffic signal turn -on. Contractor shall prepare monthly invoices reflecting equipment successfully installed and tested at the City during the previous one -month period. 3.3 Payment for Spare Equipment. The terms of this Agreement include purchase of equipment that will not be installed at the City under this Agreement. Subject to Section 3.D of this Agreement, payment for equipment described in Exhibit A as spare equipment ( "Spare Equipment') shall be payable upon delivery to the City. Contractor shall prepare monthly invoices reflecting spare equipment delivered to the City in the previous one -month period. 3.4 City shall pay Contractor ninety percent (90 %) of each approved invoice amount no later than thirty (30) days after approval of an invoice by City staff. The remaining ten percent (10 %) of each approved invoice shall be paid by City upon Final System Acceptance, as defined in Subsection 6.1 of this Agreement. 3.5 All shipping and insurance costs to and from the installation sites are included in the purchase price of the Project, as listed in Exhibit A. All payments to shipping agents and for insurance fees shall be made directly by Contractor and the City shall make no payments to any firm concerning the shipment, installation, and delivery of equipment which is not a part of this Agreement and for which exact payments are not described. Contractor shall be responsible for all arrangements for the shipment of equipment to the City, and /or movement of the equipment to the prepared site within the City. Contractor shall also be responsible for removal of all debris and packing materials from the City site resulting from the installation of the equipment, hardware and software. 3.6 Contractor shall provide City with a minimum 14 days notice of its dates of installation to enable the City to prepare the installation sites for the equipment in accordance with the instructions of Contractor. The City shall complete site preparation prior to the date of installation of the hardware, and the site shall thereafter be available for inspection and approval. All costs and expenses related to the site preparation shall be at the sole expense of City. 3.7 Extra Work - Contractor shall not receive any compensation for Extra Work without the prior written authorization of the City. As used herein, "Extra Work" means any work that is determined by the City to be necessary for the proper completion of the Project, but which is not included in the Purchase Price as specified in Exhibit A, and which parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the hourly rates set forth in Exhibit A. 4. ADMINISTRATION This Agreement will be administered by the Public Works Department. Brad Sommers shall be the Project Administrator and shall have the authority to act for City under this Agreement. 5. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 5.1 Contractor shall use only the standard materials described in Exhibit A in performing services under this Agreement. Any deviation from the materials described in Exhibit A shall not be installed unless approved in advance in writing by the City Project Administrator, 5.2 All of the services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 6. ACCEPTANCE TESTING AND ACCEPTANCE 6.1 "Final System Acceptance" shall mean the latest of the dates on which (a) all phases of the system have been used in live onsite operations for a period of at least seven (7) continuous days without significant error following successful completion of the seven (7) day System Acceptance Test described below; and (b) all remaining punch list items have been addressed and completed. 6.2 Acceptance of Installed Equipment Upon completion of the installation of the equipment, Contractor will notify City that such equipment, as described in Exhibit A. has successfully been installed. Equipment shall not be deemed to have been accepted by City until Final System Acceptance. 6.3 Acceptance of Spare Equipment Upon delivery of Spare Equipment, Contractor will notify City that such Spare Equipment, as described in Exhibit A, has been delivered. Spare Equipment shall not be deemed to have been accepted by City until Final System Acceptance. 6.4 System Acceptance Test Once all phases of the project, including tasks completed by other contractors, have commenced simultaneous live operations of the system, a seven (7) day period of System Acceptance testing for the entire system, including all interfaces and deliverables provided under this Agreement, shall begin. Acceptance Testing shall occur in a live environment. Any significant error, deviation or failure of any part or component of the System not manufactured but provided by Contractor, shall be reported to City, and Contractor shall provide in writing an action plan for resolution of such error, deviation or failure within two (2) working days. The System Acceptance Test shall be deemed completed upon completion of a continuous seven (7) day period during which no material failure to meet the criteria set forth in the ATP or significant errors remain unresolved to the satisfaction of the City. System Acceptance Test shall not be unreasonably delayed due to actions of City or its agents, contractors or subcontractors not retained by or through Contractor. 6.5 Failure A. Failure Prior to Final System Acceptance. Upon any failure of City Traffic Signal Management system involving equipment or services purchased pursuant to this Agreement, Contractor shall have an additional seven (7) days in which to make necessary equipment repairs, replacements and /or software fixes without additional cost to City. If more than seven (7) days are reasonably required to make the aforementioned repairs, replacements or software fixes, Contractor shall provide a written action plan that includes a timeline for resolution based on the scope of work involved, and City may authorize a longer repair or resolution period in writing. Failure to provide seven (7) days of continuous live operation without significant errors after a corrective action as described herein, shall constitute a failure to successfully complete Contractor's obligations under this Agreement and Contractor shall be considered in default of a material obligation. City shall be entitled to a refund of the full amount of the fees paid for Contractor's services. City shall also be entitled to full refund on any software, hardware and other system components purchased pursuant to this Agreement that is deemed unusable by the City. At City's option, Contractor shall either refund the full amount of fees paid for Contractor's services and /or equipment to the City, or Contractor shall remove defective equipment and replace with equivalent non - defective equipment. Any removal and /or replacement of equipment or system will be at Contractor's sole cost and expense. If City exercises its option for refund and equipment removal, to the extent feasible Contractor shall return City property to the condition it was in prior to installation, at Contractor's expense. B. Failure After Final System Acceptance. Contractor and City agree that upon system failure, time is of the essence for necessary equipment repairs or replacements, and time is of the essence for addressing any hardware, software or equipment defects which cause failures classified as Severity Level One and Severity Level Two, below. Upon any failure of the system or its hardware or software components, the Warranty provisions of Section 26 of this Agreement shall apply. During the warranty period, if software, hardware or equipment purchased under this Agreement from Contractor shall fail, Contractor shall repair or replace the hardware or equipment within seven (7) working days for all but Severity Level One failures. In the event of a Severity Level One hardware or equipment failure, repair and replacement shall occur within 24 hours of notification of such failure to Contractor by City. If the failure is due to a defect or failure of the supplied and /or installed equipment, the timelines for Contractor response and defect resolution below shall apply: Severity Level One (Critical): Failure that causes an intersection to be in flash or dark, or failure of safety features such as emergency vehicle preemption or railroad preemption. In the event of a Severity Level One failure, Contractor response shall be immediate, and Contractor shall provide a replacement, fix, solution or workaround within 24 hours of notification of such failure to Contractor by City. 2. Severity Level Two (High): Failure or bug in system that results in degradation of traffic signal control and communication system function to a moderate to serious degree under normal or reasonable operating conditions. Severity Level Two failures shall include but are not limited to failure or severe degradation of coordination between intersections, communication between the central system at City Hall and the field elements, and the ability to upload and download data. In the event of a Severity Level Two failure, Contractor shall respond with a written plan of action to address the failure within five (5) business days of notification by City. Contractor shall provide a fix or solution for any Level Two failure within no later than forty -five (45) calendar days of notification of failure by City. 3. Severity Level Three (Moderate to Low): Failure or bug in system that creates aesthetic or user preference issues, unrelated to the operation of the system. Severity Level Three issues shall be addressed through regular system upgrade releases on an as- needed basis. 7. RESPONSIBILITY FOR DAMAGES OR INJURY 7.1 City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Contractor's performance of the services required hereunder; or for damage to property from any cause arising from the performance of the Project by Contractor, or its subconcontractors, or its workers, or anyone employed by either of them. 7.2 Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor's work on the Project, or the work of any subcontractor or supplier selected by the Contractor. 7.3 Contractor shall indemnify, hold harmless, and defend City, its officers and employees from and against: (1) any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage, or any other claims arising from any and all acts or omissions of Contractor, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement; (2) use of improper materials in performing this Project including, without limitation, defects in workmanship or materials and /or design defects; and /or (3) any and all claims asserted by Contractor's subconcontractors or suppliers on the Project, and shall include reasonable attorneys' fees and all other costs incurred in defending any such claim. Contractor's liability in this Subsection shall be limited to the maximum amount of its insurance coverage for claims arising out non - negligent and non - intentional acts performed under this Agreement. Contractor shall not be held responsible for consequential or special damages, or claims made to City for such consequential or special damages. Nothing herein shall require Contractor to indemnify City from the sole negligence or willful misconduct of City, its officers or employees. Intellectual Property Indemnity - Contractor shall defend, indemnify and hold City, its agents, officers, representatives, employees and City Council, boards and commissions harmless from any proceeding brought against City for any intentional or unintentional violation of the intellectual property rights of any third party with respect to equipment and software deliverables purchased in this Agreement. This indemnification shall include, but is not limited to, infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Contractor's deliverables provided under this Agreement. 7.4 Contractor shall perform all Project work in a manner to minimize public inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Contractor shall perform work as specified in Exhibit A to limit impacts to traffic during the system installation period. Contractor shall be liable for any private or public property damaged during the performance of the Project work. 7.6 Contractor shall provide traffic control and access in accordance with Section 7- 10 of the State Standard Specifications and the latest edition of the Work Area Traffic Control Handbook (WATCH), as published by Building News, Inc. Traffic control and detours shall at a minimum meet the following requirements: A. Emergency vehicle access shall be maintained at all times. B. The locations and wordings of all barricades, signs, delineators, lights, warning devices, parking restrictions, and any other required devices shall ensure that all pedestrian and vehicular traffic will be handled in a safe manner with a minimum of inconvenience to the public. C. All advanced warning sign installations shall be reflectorized and /or lighted. Traffic signal system shutdown or planned "red flash" shall be limited to 4 -hour periods between the hours of 9:00 AM and 3:00 PM on weekdays (Monday through Thursday), except as authorized by the Engineer. "STOP AHEAD" and "STOP" signs shall be furnished by the contractor and shall conform to the provisions in Section 12 -3.06, "Construction Area Signs," of the State Standard Specifications except that the base material for the signs shall not be plywood. Two "STOP AHEAD" signs and two "STOP" signs shall be placed for each direction of traffic. Locations of the signs shall be per the WATCH manual. 7.6 Nothing in this section shall be construed as authorizing any award of attorney's fees in any action to enforce the terms of this Agreement, except to the extent provided in Section 7.3 above. 7.7 The rights and obligations set forth in this Section shall survive the termination of this Agreement. 8. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees, nor any of its subcontractors, are to be considered employees of the City. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms 7 of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. 9. COOPERATION Contractor agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Contractor on the Project. 10. INSURANCE Without limiting Contractor's indemnification of City, and prior to commencement of work Contractor shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Contractor shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit or performance of any work. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Contractor shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Contractor for City. ii. General Liability Coverage. general liability insurance in an ($2,000,000) per occurrence property damage, including w commercial general liability in aggregate limit is used, either Contractor shall maintain commercial amount not less than two million dollars for bodily injury, personal injury, and thout limitation, contractual liability. If surance or other form with a general the general aggregate limit shall apply i separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non - owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Contractor. H. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Contractor's performance under this Contract. G. Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 11. BONDING Contractor shall obtain, provide and maintain at its own expense during the term of this Contract: a Labor and Materials Payment Bond in the amount of one hundred percent 7 (100°/x) of the total amount to be paid Contractor as set forth in this Agreement and in the form attached hereto as Exhibit B which is incorporated herein by this reference; and a Faithful Performance Bond in the amount of one hundred percent (100 %) of the total amount to be paid Contractor as set forth in this Agreement in the form attached hereto as Exhibits C which is incorporated herein by this reference. The Labor and Materials Payment Bond and Faithful Performance Bond shall be issued by an insurance organization or surety (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property- Casualty. The Contractor shall deliver, concurrently with execution of this Agreement, the Labor and Materials Payment Bond and Faithful Performance Bond, a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the State of California. 12. PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime work for each craft or type of workman needed to execute the work contemplated under the Agreement shall be paid to all workmen employed on the work to be done according to the Agreement by the Contractor and any subcontractor. In accordance with the California Labor Code (Sections 1770 et sec.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703 -4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him /her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 13. SUBCONTRACTING City and Contractor agree that subcontractors may be used to complete the work outlined in the Scope of Services provided the Contractor obtains City approval in writing prior to the subcontractor performing any work. Contractor shall be fully responsible to City for all acts and omissions of the subcontractors. Nothing in this Contract shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. 14. WITHHOLDINGS City may withhold payment to Contractor of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Contract. Contractor shall not discontinue work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed 10 sums. Contractor shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 15. CONFLICTS OF INTEREST The Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Contract, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Contractor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Contract by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 16. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Contractor and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn: Brad Sommers Public Works Department City of Newport Beach 3300 Newport Blvd. Newport Beach, CA, 92660 Phone: 949 - 644 -3329 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attention: Roy Howard Econolite Control Products, Inc. 3360 E. La Palma Ave. Anaheim, CA 92806 Phone: (719) 471 -9866 ext. 352 Fax: (719) 471 -9063 17. TERMINATION Termination With Cause —If either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of five (5) calendar days, or if more than five (5) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within five (5) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the 11 non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Termination Without Cause - Notwithstanding the above provisions and the provisions of Section 6.5 of this Agreement, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Contractor. In the event of termination under this Section, City shall pay Contractor for services satisfactorily performed and costs incurred in the performance of such services up to the effective date of termination for which Contractor has not previously been paid. In the event of termination under this Section, City shall also pay Contractor for all software, hardware, and equipment delivered to City site under this Agreement that City deems usable. 18. COMPLIANCE WITH ALL LAWS Contractor 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. 19. WAIVER A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 20. INTEGRATED AGREEMENT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal Agreement or implied covenant shall be held to vary the provisions herein. 21. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or product warranties, including Software and Hardware warranties contained in the Scope of Services or delivered to City after execution of this Agreement, the terms of this Agreement shall govern. 22. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 23. EFFECT OF CONTRACTOR'S EXECUTION Execution of this Agreement by Contractor is a representation that Contractor has visited the Project Site, has become familiar with the local conditions under which the work is to be performed, and has taken into consideration these factors in submitting its Project Proposal and Scope of Work. 12 24. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 25. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 26. WARRANTY Contractor warrants to City that all equipment to be delivered hereunder will be free from defects in material or workmanship and will be of the kind and quality designated or specified by Contractor in Exhibit A. The warranty shall apply only to defects appearing within two years from the date of Final System Acceptance of Project by City equipment products not manufactured by the Contractor, and two years from the date of Final System Acceptance by City for equipment products manufactured by Contractor. If Contractor installs the equipment, or supplies technical directions of installation by contract, the warranty period shall run from the date of Final System Acceptance by City, provided same is not unreasonably delayed by City. If Contractor - manufactured equipment delivered hereunder does not meet the above warranty, and if City promptly notifies Contractor in writing, Contractor shall thereupon correct any defect, including non - conformance with the specifications, either (at its option) by repairing any defective or damaged parts of the equipment, or by making available any necessary replacement parts, delivered and installed without additional charge to City within seven (7) working days, unless the failure is of Severity Level One, as defined by Section 6.4(B) of this Agreement. City will return the defective product to Contractor, at Contractor's expense. Contractor shall repair or replace the defective item and return it to City, shipping costs prepaid. Contractor shall perform any necessary diagnostic work, software, hardware and equipment removal, repair, replacement, certification, and installation at no cost to the City during the warranty period, using Contractor's equipment. The foregoing warranty is exclusive and in lieu of all other warranties, whether written, oral, implied or statutory. Contractor does not warrant any equipment of other manufacture designated by City. 27. REPRESENTATIONS Non - infringement. Contractor represents that to the best of its knowledge the technology embodied in the products sold herein does not infringe upon a United States patent or United States copyright in effect as of the Effective Date. Authority. Each party represents as follows: (a) that it has full power and authority to execute, deliver and perform its obligations under this Agreement; (b) that there are no actions, proceedings or investigations, pending or, to the best of each party's knowledge, threatened against such party which may in any manner whatsoever materially affect the enforceability of this Agreement or the rights, duties and obligations of the parties hereunder; and (c) that the execution, delivery and performance of this Agreement will not constitute a breach or default under any agreement, law or court 13 order under which such party is a party or may be bound or affected by or which may affect the rights, duties and obligations hereunder. No Other Representations. Each party acknowledges and agrees that it is relying on no representation of the other party except as expressly set forth herein. 28. CONFIDENTIAL INFORMATION. Confidential Information. In the performance of this Agreement or in contemplation thereof, the parties and their respective employees and agents may have access to private or confidential information owned or controlled by the other party and such information may contain proprietary details and disclosures. All information and data identified in writing as proprietary or confidential by either party ( "Confidential Information ") and so acquired by the other party or its employees or agents under this Agreement or in contemplation thereof shall be and shall remain the disclosing party's exclusive property. The recipient of Confidential Information shall use all reasonable efforts (which in any event shall not be less than the efforts the recipient takes to ensure the confidentiality of its own proprietary and other confidential information) to keep, and have its employees and agents keep, any and all Confidential Information confidential, and shall not copy, or publish or disclose it to others, nor authorize its employees, agents or anyone else to copy or disclose it to others, without the disclosing party's written approval; nor shall the recipient make use of the Confidential Information except for the purposes of executing its obligations hereunder, and (except as provided for herein) shall return the Confidential Information and data to the first party at its request. The City's duty to maintain confidentiality as described hereunder shall be subject to the laws of the State of California. Excluded Information. The foregoing conditions will not apply to information or data which is, or which becomes generally known to the public by publication or by any means other than a breach of duty on the part of the recipient hereunder, is information previously known to the recipient, is information independently developed by or for the recipient or is information generally released by the owning party without restriction. Right to Injunctive Relief. Because of the unique nature of the Confidential Information, the parties agree that each party may suffer irreparable harm in the event that the other party fails to comply with any of its obligations under this Article, and that monetary damages may be inadequate to compensate either party for such breach. Accordingly, the parties agree that either party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Article. 29. ASSIGNMENT This Agreement shall not be assigned by any party, or any party substituted, without prior written consent of the City and the Contractor. 30. COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. 0 31. OTHER MATTERS Severability. In the event any of the provisions of this Agreement shall, for any reason, be held void or unenforceable, the remaining provisions shall remain in full effect and shall control. Invalidity. Any provisions of this Agreement prohibited by the law of any state shall, as to said state, be ineffective to the extent of such prohibition without invalidating the remaining provisions of this Agreement. Absence of Third Party Beneficiary Rights. Except as otherwise provided in this Agreement, no provision of this Agreement is intended, nor shall be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any affiliate or subsidiary, and all provisions hereof shall be personal solely between the parties hereto. Headings. Article and Section headings are included solely for convenience, are not to be considered a part of this Agreement nor are they intended to be full and accurate descriptions of the contents thereof. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Leonie Mulvihill, (, Acting City Attorney r X4(6 ATTEST: M Leilani I. Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation 0 Keith D. Curry, Mayor for the City of Newport Beach ECONOLITE CONTROL PRODUCTS, INC. M M Name: J.P. Spinazze Title: Senior Vice President Name: Brian Martin Title: Assistant Secretary Attachments: Exhibit A - Scope of Services (Econolite Proposal) Exhibit B - Labor and Materials Payment Bond Exhibit C - Faithful Performance Bond 15 ECONOLITE CONTROL PRODUCTS, INC. 3360 East La Palma Avenue Anaheim, CA 92806 Tel (714) 630 -3700 FAX (714) 630 -5120 Proposal Date: April 28, 2010 To: City of Newport Beach Attn: Brad Sommers From: Gina Prohaska Email: gprohaska(aieconolite.com Re: City of Newport Beach Traffic Signal Modernization Project Phase 4 Brackets, Ped Isolation boards, Push button switches, and 7 (Proposal based on Econolite field review We are offering the following products at prices and conditions set forth on this form. Item Qtv Description Unit Price Extended Price 20 ASC /3 -2100 Controller with Ethernet and Data Key $2,380.00 $47,600.00 (Includes one (1) Spare controller) 19 Field Modification Equipment to existing NEMA $2,468.00 $46,892.00 traffic signal cabinets per City furnished list to include: MMU, D panel, Connecting cables, Filtered Convenience Outlet, Terminal Block and Telephone Brackets, Ped Isolation boards, Push button switches, Door switch brackets, SDLC cable from ASC /3 to MMU and resistor panel assembly for pedestrian yellows Locations: Birch Street & Orchard Avenue Acacia Street & Birch Street— Mesa Drive Irvine Avenue& University Avenue Irvine Avenue & Santa Isabel Avenue Irvine Avenue & Dover Drive Irvine Avenue Pedestrian Signal Irvine Avenue & Westcliff Drive Dover Drive & Cliff Drive Dover Drive & 16'" Street/ Castaways Lane Placentia Avenue & 15'" Street Superior Avenue & Ticonderoga Street Superior Avenue & Hospital Road Superior Avenue & Placentia Avenue Balboa Blvd & River Avenue Balboa Blvd & 32"' Street Balboa Blvd & 21 Street Balboa Blvd & le Street Balboa Blvd & Palm Street Balboa Blvd & Main Street 4 Field Modification Labor for locations noted in line $1,200.00 $4,800.00 item #2 (Work to be accomplished at night) Hourly labor rate for evening work $200.00 x 6 hours per location. 4 15 Field Modification Labor for locations noted in line $900.00 $13,500.00 $3,169.93 $3,169.93 item #2 hourly labor rate for Daytime $150.00 x 6 Tax: hours per location. Grand total with tax and bond 5 3 ASC 13 RM Controllers with C1 Series, 110 VAC, $2633.00 $7899.00 Data Key and Ethernet module (Includes one (1) spare controller) Part number. ASC3RM1110100000 6 1 Dover Drive & Westcliff Drive $21,020.00 $21,020.00 Type P Cabinet including ASC 13 Controller, cabinet built per City of Newport Beach cabinet specification including eight (8) two channel detectors, including outside test, minus installation 7 1 Balboa Blvd &.22ntl Street — 23n Street $20,579.00 $20,579.00 Type P Cabinet including ASC /3 Controller, cabinet built per City of Newport Beach cabinet specification, including four (4) channels of detection, including outside test, minus installation 8 1 Newport Blvd & 28" Street $20,579.00 $20,579.00 Type P Cabinet including ASC /3 Controller, cabinet built per City of Newport Beach cabinet specification including four (4) two channel detectors, including outside test, minus installation 9 1 Irvine Avenue & Highland Drive $21,710.00 $21,710.00 Type R Cabinet including ASC /3 Controller, cabinet built per City of Newport Beach cabinet specification including six (6) two channel detectors, including outside test, minus installation 10 1 Cehtracs System Intersection integration into $4750.00 $4750.00 Centracs (Communication setup, Graphics and travel up to 2- days -on -site for Phase 4,7 Navteq Map Graphics, Number of intersections integrated into System: 30 with Template Background Graphics q =ml $211,329.00 $211,329.00 Bond (1.5% flat based on pre -tax total) Bond not $3,169.93 $3,169.93 taxed Tax: $16,474.00 Grand total with tax and bond $230,972.93 Taxes: Included F.O.B.: Anaheim Delivery: 4 weeks for ASCI3 Controllers and field components, schedule to be determined based on notice to proceed, 12 weeks for cabinets with two additional weeks for outside test. Valid For: 30 Days Freight: Prepaid Gina Prohaska Account Manager CITY OF NEWPORT BEACH BOND NO. LABOR AND MATERIALS PAYMENT BOND WHEREAS, the City of Newport Beach, State of California, has awarded to hereinafter designated as the "Principal," a contract for the located at in the City of in strict conformity with the Contract on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a bond, providing that if Principal or any of Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the work agreed to be done, or for any work or labor done thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter set forth. NOW, THEREFORE, We the undersigned Principal, and, duly authorized to transact business under the laws of the State of California, as Surety, (referred to herein as "Surety') are held firmly bound unto the City of Newport Beach, in the sum of (INSERT CONTRACT DOLLAR AMOUNT) lawful money of the United States of America, said sum being equal to 100% of the estimated amount payable by the City of Newport Beach under the terms of the Contract; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the Principal's subcontractors, fail to pay for any materials, provisions, or other supplies, implements or machinery used in, upon, for, or about the performance of the work contracted to be done, or for any other work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such work or labor, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, then the Surety will pay for the same, in an amount not exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the obligations of this Bond, a reasonable attorney's fee, to be fixed by the Court as required by the provisions of Section 3250 of the Civil Code of the State of California. The Bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Section 3181 of the California Civil Code so as to give a right of action to them or their assigns in any suit brought upon this Bond, as required by and in accordance with the provisions of Sections 3247 et. seq. of the Civil Code of the State of California. And Surety, for value received, hereby stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the work to be performed thereunder shall in any wise affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions to the terms of the Contract or to the work or to the specifications. 16 In the event that any principal above named executed this Bond as an individual, it is agreed that the death of any such principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the above named Principal and Surety, on the day of 2008. Name of Contractor (Principal) Name of Surety Address of Surety Telephone Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED 17 CITY OF NEWPORT BEACH BOND NO. FAITHFUL PERFORMANCE BOND The premium charges on this Bond is $ , being at the rate of $ thousand of the Contract price. WHEREAS, the City of Newport Beach, State of California, has awarded to hereinafter designated as the "Principal," a contract for the , located at in the City of in strict conformity with the Contract on file with the office of the City Clerk of the City of Newport Beach, which is incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute the Contract and the terms thereof require the furnishing of a Bond for the faithful performance of the Contract. NOW, THEREFORE, we, the Principal, and , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety "), are held and firmly bound unto the City of Newport Beach, in the sum of (INSERT CONTRACT DOLLAR AMOUNT) lawful money of the United States of America, said sum being equal to 100% of the estimated amount of the Contract, to be paid to the City of Newport Beach, its successors, and assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the work, covenants, conditions, and agreements in the Contract Documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by the City, only in the event the City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the work to be performed thereunder shall in any way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions of the Contract or to the work or to the specifications. This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for one (1) year following the date of formal acceptance of the Project by the City. M In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the day of 12008. Name of Contractor (Principal) Name of Surety Address of Surety Telephone Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED 19 o+ ('TILITIF_SAL YARD TRAFFIC SIGNAL MODERNIZATION CITY OF NEWPORT BEACH CRY OF IRVINE. ('I "f\' OF IRVINE: I- N1VF.R51T \ DR G('�YOw:DR 0(IN,'f P LEGEND pRy A� �T n C 7N �A 8881 SAN JOAOU IN 111115 RD Z` N1 Vr L RIDGE PARK RD PHASES J. 2 & 3 COMPLETED (50 SIGNALS) PHASES 4 & 7 PLANNED CONSTRCCTION 6/2010 (30 SIGNALS) PHASE 5 FUTURE (13 SIGNALS) PHASE 6 FC'1'I RE (13 SIGNALS) PHASE 8 FUTURE (I I SIGNALS) G � PHASES I, 2 & 3 CCTV CAMERAS COMPLE FED (15 CAMERAS) MEN PHASES 4 & 7 CCTV CAMERAS (7 (Alf ERAS) PHASE 5 FUTURE. CC "I % CAMERAS (4 CAMERAS) I PHASE 6 FUTURE CCTV CAMERAS (3 CAMERAS) PHASE 8 FUTURE CCTV CAMERAS (2 CAMERAS) . COMMUNICATION HUB pRy A� �T n C 7N �A 8881 SAN JOAOU IN 111115 RD Z` N1 Vr L RIDGE PARK RD