Item No.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: OFFICE OF THE CITY MANAGER
BY: MATTHEW BAUMGARDNER, P.E., DIRECTOR OF PUBLIC WORKS/
CITY ENGINEER
DATE: JANUARY 9, 2024
SUBJECT: PROFESSIONAL SERVICES AGREEMENT WITH AVAIL TECHNOLOGIES, INC. FOR THE PROCUREMENT AND IMPLEMENTATION OF TRANSIT
MANAGEMENT SYSTEMS FOR DOWNEY LINK BUSES IN CONJUNCTION
WITH CITYWIDE BUS SIGNAL PRIORITY PROJECT, CAPITAL IMPROVEMENT PROJECT (CIP) NO. 17-07
EXECUTIVE SUMMARY
The City Council will consider approving a Professional Services Agreement with Avail Technologies, Inc. for the procurement and implementation of transit management systems to facilitate the Citywide Bus Signal Priority Project, Capital Improvement Project No. 17 -07 to enable Downey LINK, Los Angeles County Metropolitan Transportation Authority (Metro) and Long Beach Transit bus vehicles to be given priority at the city’s signalized intersections along the City’s bus routes by giving the bus an early or extended “green” signal if running behind schedule in the interest of maintaining schedule adherence.
RECOMMENDATION
That the City Council:
1.Approve the professional services agreement with Avail Technologies, Inc. for the procurement and implementation of transit management systems for a one -year term beginning on January 10, 2024, with the optional extended term of three additional years, for a total amount of $427,500; and
2.Authorize the City Manager or his designee to execute the agreement with Avail Technologies, Inc. in the amount of $427,500, including any non -substantive extensions, change orders, purchase orders, and amendments up to the authorized budget amount of $427,500.
BACKGROUND
The deployment of the transit priority system will implement a priority system for public transit buses within the City, including the Downey LINK, Metro, and Long Beach T ransit bus routes,
APPROVED BY
CITY MANAGER
PROFESSIONAL SERVICES AGREEMENT WITH AVAIL TECHNOLOGIES, INC. FOR THE
PROCUREMENT AND IMPLEMENTATION OF TRANSIT MANAGEMENT SYSTEMS FOR DOWNEY LINK
BUSES IN CONJUNCTION WITH CITYWIDE BUS SIGNAL PRIORITY, CAPITAL IMPROVEMENT PROJECT (CIP) NO. 17-07
JANUARY 9, 2024
PAGE 2
which will decrease travel times for said bus vehicles to facilitate schedule adherence for the buses by granting the buses an early or extended “green” signal at signalized intersections along bus routes if they are running behind schedule. The bus routes and signalized intersections at which bus priority will be provided, as well as other elements to be implemented through the Citywide Bus Signal Priority Project are shown on the attached Project Location Map (Attachment A).
Per the adopted Los Angeles County Bus Signal Priority methodology, which this project is required to follow for grant requirement purposes, the bus vehicles need to be equipped with transit management systems consisting of Computer-Aided Dispatch-Automated Vehicle Location (CAD-AVL) devices, interfaces with bus vehicles existing GPS devices, and radio transmitters to request priority from a signalized intersection which the bus is approaching if it is running behind schedule. If the vehicle is, in fact, running behi nd schedule, the bus will transmit a radio signal to the approaching signalized intersection with an embedded message to request priority. A radio receiver to be installed at the intersection will receive the signal and send a signal to the traffic signal controller at the intersection to grant priority to the bus vehicle by giving the vehicle an early or extended “green” signal, depending on where the traffic signal is in its timing cycle. Once the bus has traveled through the intersection, the vehicle sends a follow-up “check-out” radio signal to the intersection to terminate the priority process and allow the traffic signal to resume its normal timing cycle.
On August 22, 2023, the City Council awarded a construction contract to International Line Builders, Inc. dba ILB Electric in the amount of $1,793,252 for the Citywide Bus Signal Priority Project, Capital Improvement Project (CIP) No. 17-07. ILB Electric will be installing fiber optic communications along Foster Road and Gardendale Street to connect f ive additional signalized intersections to the City’s Traffic Management Center (TMC) and furnishing and installing the bus signal priority equipment at approximately 70 intersections along the City’s fixed bus routes.
The transit management systems are being procured independently of the construction contract in order to reduce costs and to give the City more control over the procurement process.
ANALYSIS
Now that the construction contract has been awarded, the City is ready to proceed with the procurement of the transit management systems. With the assistance of the City’s traffic design consultant on this project, Iteris, Inc., it was determined that only three vendors implement transit management systems. The following three vendors were contacted to provide quotes to equip the City’s fleet of seven (7) Downey LINK buses with the transit management systems:
PROFESSIONAL SERVICES AGREEMENT WITH AVAIL TECHNOLOGIES, INC. FOR THE
PROCUREMENT AND IMPLEMENTATION OF TRANSIT MANAGEMENT SYSTEMS FOR DOWNEY LINK
BUSES IN CONJUNCTION WITH CITYWIDE BUS SIGNAL PRIORITY, CAPITAL IMPROVEMENT PROJECT (CIP) NO. 17-07
JANUARY 9, 2024
PAGE 3
1. Clever Devices
2. Conduent Transportation
3. Avail Technologies, Inc
Following request for proposals from the three vendors, it was determined that only Avail Technologies, Inc. was in a position to respond with a proposal, as they work with smaller fleets. Clever Devices and Conduent Transportation did not provide proposals, as they do not provide a system for fleets of less than 50 fixed route buses.
Therefore, it is recommended that the City accept the quote provided by Avail Technologies, Inc. to furnish, install, test, and provide training for the tr ansit management systems on the City’s LINK bus fleet, as they are the only qualified vendor that works with smaller fleets.
The deployment of the transit priority system will enhance travel times for the LINK, Metro, and Long Beach Transit buses along six major designated transit routes (Lakewood Boulevard, Paramount Boulevard, Firestone Boulevard, Telegraph Road, Florence Avenue, and Imperial Highway) within the City in order to encourage ridership, as previously described.
The Citywide Bus Signal Priority Project will facilitate the Metro Bus Rapid Project by granting priority to the Metro Rapid buses and, as a result, enhancing the mobility of the bus vehicles along the Downey portion of the corridor.
The scope of work for the Citywide Transit Priority System Program will include the following elements:
• Equipping the LINK bus fleet with transit management systems to enable the buses to request priority at an approaching signalized intersection if the buses are running behind schedule,
• Retrofitting signalized intersections along six major transit routes within the city with the transit priority receivers, which will enable the traffic signal to grant priority to the approaching LINK, Metro, or Long Beach Transit bus if running behind schedule;
• Expansion of the city’s fiber-optic communications systems along Gardendale Street and Foster Road to connect five additional signalized intersections to the city’s Traffic Management Center as well as to enable bus signal priority at the five intersections;
• Retiming of the traffic signals along the six aforementioned major transit routes to enhance overall mobility along said corridors; and
• The completion of “before” and “after” evaluations to gauge the effectiveness of the program.
PROFESSIONAL SERVICES AGREEMENT WITH AVAIL TECHNOLOGIES, INC. FOR THE
PROCUREMENT AND IMPLEMENTATION OF TRANSIT MANAGEMENT SYSTEMS FOR DOWNEY LINK
BUSES IN CONJUNCTION WITH CITYWIDE BUS SIGNAL PRIORITY, CAPITAL IMPROVEMENT PROJECT (CIP) NO. 17-07
JANUARY 9, 2024
PAGE 4
The locations of the six major transit routes along which the system is to be deployed and the various system components are illustrated on the attached Project Location Map (Attachment A). The City is ready to proceed with the procurement and implementation of the transit management systems. Altogether, the construction and implementation of the systems will be completed by May 2024.
CITY COUNCIL PRIORITIES
Efficiency & Adaptability
Quality of Life, Safety & Infrastructure
FISCAL IMPACT
Approval of the recommended action will result in an expenditure of $427,500 from the grant, Proposition C Local Return, and Measure R Local Return funds in account 26 -17826, 54- 17826, and 56-17826, respectively, as previously approved in the Fiscal Year 2 3-24 Capital Improvement Program.
There is sufficient fund balance for the recommended action. The total expenditure of the aforementioned amount will occur over the four-year term of the agreement, with the capital expenditure of $232,500 for the procurement, installation, testing, and training of the transit management systems to occur in the initial year and an annual maintenance cost of $65,000 to occur in each of the three (3) subsequent years.
ATTACHMENTS
Attachment A – Project Location Map
Attachment B – Professional Services Agreement with Avail Technologies, Inc.
Exhibit A – Scope of Work and Proposal from Avail Technologies, Inc
CITY OF DOWNEY
PROFESSIONAL SERVICES AGREEMENT
WITH AVAIL TECHNOLOGIES, INC.
FOR THE PROCUREMENT AND IMPLEMENTATION OF TRANSIT MANAGEMENT
HARDWARE
1. PARTIES AND DATE
This Agreement is made and entered into this 10th day of January, 2024 by and between the City of Downey, a California municipal corporation and charter city with its principal place of business at 1 1111 Brookshire Avenue, Downey California 90241 ("City") and Avail Technologies, Inc, a Pennsylvania corporation, with its principal place of business at 1960 Old Gatesburg Road, Suite 200 State College, PA 16803 ("Vendor"). City and Vendor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. RECITALS.
2.1 Vendor.
Vendor desires to perform and assume responsibility for the provision of certain Transit Management Hardware required by City on the terms and conditions set forth in this Agreement. Vendor represents that it has demonstrated competence and experience in furnishing, installing, testing and training for Transit Management Hardware to public clients
2.2 Project.
City desires to engage Vendor to render such services for the Citywide Bus Signal Priority Project (“Project”) as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Vendor promises and agrees to furnish to City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply, furnish, and install the Transit Management Hardware necessary for the Project ("Services"). Annual maintenance will take effect starting in year two (2). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
3.1.2 Term. The term of this Agreement shall be from January 10, 2024 to January 10, 2028 unless earlier terminated as provided herein. Vendor shall complete the Services within the term of this Agreement, and shall meet any other established schedules
ATTACHMENT B
and deadlines. The term of this Agreement may be extended by written amendment to this Agreement signed by the City Manager and the Vendor.
3.2 Responsibilities of Vendor.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The Services shall be performed by Vendor or under its supervision. Vendor will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Vendor on an independent contractor basis and not as an employee.
Vendor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Vendor shall also not be employees of City and shall at all times be under Vendor's exclusive direction and control. Vendor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Vendor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance
In the event that Vendor or any employee, agent, or subcontractor of Vendor providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (CaIPERS) to be eligible for enrollment in CaIPERS as an employee of City, Vendor shall indemnify, defend, and hold harmless CITY for the payment of any employee and/or employer contributions for CaIPERS benefits on behalf of Vendor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City
3.2.2 Schedule of Services. Vendor shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "A" attached hereto and incorporated herein by reference. Vendor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Vendor's conformance with the Schedule, City shall respond to Vendor's submittals in a timely manner. Upon request of City, Vendor shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. The parties acknowledge that the Schedule of Services may be amended by mutual agreement due to changes in circumstances, including changes in the performance schedules of other third parties performing work for the City on the Project, which affect the timing of Vendor's performance of the Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by Vendor shall be subject to the approval of City.
9 3.2.4 Substitution of Key Personnel. Vendor has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Vendor may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Vendor cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Vendor at the request of the City.
3.2.5 City’s Representative. The City hereby designates Matthew Baumgardner P.E., Director of Public Works/City Engineer, or his designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Vendor shall not accept direction or orders from any person other than the City’s Representative or his designee.
3.2.6 Vendor’s Representative. Vendor hereby designates Robert Manaseri, Director of Programs, or his designee, to act as its representative for the performance of this Agreement (“Vendor’s Representative”). Vendor’s Representative shall have full authority to represent and act on behalf of the Vendor for all purposes under this Agreement.
The Vendor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement
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3.2.7 Coordination of Services. Vendor agrees to work closely with City staff in the performance of Services and shall be available to City's staff, Vendors and other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Vendor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Vendor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Vendor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Vendor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Vendor’s failure to comply with the standard of care provided for herein. Any employee of the Vendor or its sub-contractors who is determined by the City to be 3 uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner consistent with the standard of care set forth herein, shall be promptly removed from the Project by the Vendor and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Vendor shall keep itself fully informed of and in compliance with all applicable local, state and federal laws, rules and regulations in force at the time the Services are performed by Vendor and in any manner affecting the performance of the Project or the Services, including all applicable Cal/OSHA requirements, and shall give all notices required by law. Vendor shall be liable for all violations of such laws and regulations in connection with Services. If the Vendor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Vendor shall be solely responsible for all costs arising therefrom. Vendor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the applicable indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. Vendor’s violation of such laws, rules and regulations shall also constitute a material breach of this Agreement.
3.2.10 Insurance
3.2.10.1 Time for Compliance. Vendor shall not commence the Services or the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Vendor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section. The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience with insurer, coverage or other special circumstances.
3.2.10.2 Minimum Requirements. Vendor shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement, the Services or the Project by the Vendor, its agents, representatives, employees or subcontractors. Vendor shall also require all of its subcontractors to procure and maintain the same insurance for the duration of the Agreement. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. (1) Commercial General
Liability (CG L)-. Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis including products and completed operations, property damage, bodily injury and personal and advertising injury; (2) Automobile Liability-. Insurance Services Office Form Number CA 0001 covering Code 1 (any auto) or if Vendor owns no autos, Code 8 (hired) and 9 (non-owned); and (3) Workers’ Compensation : Workers’ Compensation insurance as 4 required by the State of California with Statutory Limits; and (4) Employer’s Liability Insurance .
(B) Minimum Limits of Insurance. Vendor shall maintain
limits no less than: (1) Commercial General Liability (CG L) : No less than $2,000,000 per occurrence for products and completed operations, bodily injury, property damage and personal and advertising injury. If Commercial General Liability Insurance or other form with general aggregate limit applies, either the general aggregate limit shall apply separately to this Agreement/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: No less than $2,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation: Workers’ Compensation limits as required by the Labor Code of the State of California with Statutory Limits; (4) Employer’s Liability: Employer’s Liability limits of no less than $2,000,000 per accident for bodily injury or disease. Employer’s Liability coverage may be waived by the City if City receives written verification that Vendor has no employees.
If the Vendor maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.2, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City
3.2.10.3 Professional Liability (Errors & Omissions). Vendor shall procure and maintain, and require its sub-contractors to procure and maintain, for a period of five (5) years following completion of the Services or the Project, errors and omissions liability insurance appropriate to its profession. Such insurance shall be in an amount not less than $2,000,000 per occurrence or claim and $2,000,000 in the aggregate, and shall be endorsed to include contractual liability. If the Vendor maintains broader coverage and/or higher limits than the minimum shown in this subdivision 3.2.10.3, the City requires and shall be entitled to the broader coverage and/or higher limits maintained by the Vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
3.2.10.3.1 Technology Professional Liability Errors and Omissions Insurance. If appropriate to the Vendor’s profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by the Vendor in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, copyright, trademark, invasion of privacy violations, information theft, release of private information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.
a. The Policy shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City in the care, custody, or control of the Vendor. If not covered under the 5 Vendor’s liability policy, such “property” coverage of the City may be endorsed onto the Vendor’s Cyber Liability Policy as covered property as follows:
b. Cyber Liability coverage in an amount sufficient to cover the full replacement value of damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City that will be in the care, custody, or control of Vendor. c. The Insurance obligations under this Agreement shall be the greater of 1) all the Insurance coverage and limits carried by or available to the Vendor; or 2) the minimum Insurance requirements shown in this Agreement. Any insurance proceeds in excess of the specified limits and coverage required, which are applicable to a given loss, shall be available to City.
No representation is made that the minimum Insurance requirements of this Agreement are sufficient to cover the indemnity or other obligations of the Vendor under this Agreement.
If the Vendor maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.]
3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Vendor shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Additional Insured Status. The Commercial General
Liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to liability arising from the work, Services, Project or operations performed by or on behalf of the Vendor, including materials, parts or equipment furnished in connection with such work, Services. Project or operations; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Vendor’s scheduled underlying coverage. Commercial General Liability insurance coverage may be provided in the form of an endorsement to the Vendor’s insurance (at lease as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26. CG 20 33 or CG 20 38: and CG 20 37 forms if later revisions are used).
(B) Waiver of Subrogation. Vendor hereby grants to City a waiver of any right to subrogation which any insurer of said Vendor may acquire against the City by virtue of the payment of any loss under said insurance policies set forth herein. Vendor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. 6 (C) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except with written notice by certified mail, return receipt requested to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers.
3.2.10.5 Primary Coverage. For any claims related to this Agreement, the Vendor’s insurance coverage shall be primary insurance and primary coverage at least as broad as ISO CG 20 01 04 13 with respect to the City, its directors, officials, officers, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Vendor’s insurance and shall not be called upon to contribute with it in any way
3.2.10.6 Separation of Insureds; No Special Limitations. All insurance required by this Section shall contain standard separation of insureds provisions.
In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors officials, officers, employees, agents and volunteers.
3.2.10.7 Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. City may require Vendor to provide proof of ability to pay losses and related investigations, claim administration and defense expenses and costs within the retention. The policy language shall provide or be endorsed to provide that the self-insured retention may be satisfied by either the named insured or City.
3.2.10.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, authorized to do business in California, and satisfactory to the City.
3.2.10.9 Verification of Coverage. Vendor shall furnish City with original certificates of insurance, including all required amendatory endorsements (or copies of the applicable policy language effective coverage required by this provision) and a copy of the Declarations and Endorsement Page of the Commercial General Liability policy listing al policy endorsements to the City before the commencement of work under this Agreement.
However, failure to obtain the required documents prior to the commencement of work under this Agreement shall not waive the Vendor’s obligation to provide them to the City. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, at any time.
3.2.10.10 Claims-Made Policies. If any of the policies provide coverage on a claims-made basis:
(A) The retroactive date must be shown and must be before the date of this Agreement or the date work commences under this Agreement, whichever is earliest; 7 (B) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Services provided under this Agreement;
(C) if coverage is canceled, non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of this Agreement or the date work commences under this Agreement, whichever is earliest, the Vendor must purchase extended reporting coverage for a minimum of five (5) years after completion of the Services under this Agreement.
3.2.11 Safety. Vendor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Vendor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to: (A) adequate life protection and life-saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, traffic control, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.3 Fees and Payments.
3.3.1 Compensation. Vendor shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit '’A'’ attached hereto and incorporated herein by reference. The total compensation for project deliverables shall not exceed Two Hundred Thirty-Two Thousand Five Hundred Dollars and Zero Cents ($232,500.00) without written approval of the City. Annual maintenance of Sixty-Five Thousand Dollars and Zero Cents ($65,000.00) will take effect starting in year (2) for a total compensation of Four Hundred Twenty-Seven Thousand Five Hundred Dollars and Zero Cents ($427,500.00) over the four-year term. Extra Work may be authorized, as described below, and if authorized, said Extra Work will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Vendor shall submit to City invoices per the milestone schedule described in Exhibit “A”. The invoice shall describe the amount of Services and supplies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within thirty (30) days of receiving such invoices, review the invoice and pay all approved charges thereon
3.3.3 Reimbursement for Expenses. Vendor shall not be reimbursed for any expenses unless authorized in writing by City.
8 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Vendor perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Vendor shall not perform, nor be compensated for, Extra Work without written authorization from the City Manager.
3.3.5 Prevailing Wages. Pursuant to Downey Municipal Code Section 2935, the requirements of California Labor Code Sections 1720 et seq. and 1770 d seq., as well as California Code of Regulations, Title 8, Section 16000 d seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects, shall apply to the Project.
Vendor agrees to fully comply with such Prevailing Wage Laws. City shall provide Vendor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Vendor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Vendor’s principal place of business and at the Project site. Vendor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. If applicable, Vendor shall be registered at all times with the Department of Industrial Relations under the Public Works Contractor Registration Program for Labor Compliance.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Vendor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Vendor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Vendor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice to Vendor, terminate the whole or any part of this Agreement at any time either for cause or for the City's convenience and without cause by giving written notice to Vendor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Vendor may only terminate this Agreement for cause upon giving the City not less than seven (7). calendar days' written notice. 9 Upon termination, Vendor shall be compensated only for those services which have been adequately rendered to City, and Vendor shall be entitled to no further compensation.
The City shall within fifteen (15) calendar days following termination pay the Vendor for all services adequately rendered and all reimbursable costs incurred by Vendor up to the date of termination, in accordance with the payment provisions of this Agreement.
The following reasons shall constitute "cause" for which either party may terminate this Agreement as provided herein:
•Substantial failure by the other party to perform in accordance with the terms of this Agreement and through no fault of the terminating party; •Assignment of this Agreement or transfer of the Project by either party to any other entity without the prior written consent of the other party; •Suspension of the Project or the Vendor's Services by the City for more than ninety (90) calendar days, consecutive or in the aggregate, without good cause; •Material changes in the conditions under which this Agreement was entered into, the Scope of Services or the nature of the Project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Vendor to provide all finished or unfinished Documents and Data and other information of any kind prepared by Vendor in connection with the performance of Services under this Agreement. Vendor shall be required to provide such Documents and Data and other information within fifteen (15) days of the City's request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Vendor:
Avail Technologies, Inc.
1960 Old Gatesburg Road, Suite 200
State College, PA 16803
Phone: (814) 234-3394
Email: [email protected]
Attn : Robert Manaseri, Director of Programs
10 City:
City of Downey
11111 Brookshire Avenue
Downey, California 90241
Phone: (562) 904-7286
Email: [email protected]
Attn: Matthew Baumgardner P.E., Director of Public
Works/City Engineer
With a courtesy copy to:
City of Downey
City Attorney’s Office
11111 Brookshire Avenue
Downey, California 90241
Such notice shall be deemed made when personally delivered or when mailed, forty- eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Vendor under this Agreement (“Documents & Data”).
Vendor shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Vendor represents and warrants that Vendor has the legal right to license any and all Documents & Data. Vendor makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Vendor or provided to Vendor by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Vendor in 11 connection with the performance of this Agreement shall be held confidential by Vendor.
Such materials shall not, without the prior written consent of City, be used by Vendor for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project.
Nothing furnished to Vendor which is otherwise known to Vendor or is generally known, or has become known, to the related industry shall be deemed confidential. Vendor shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Attorney's Fees. In the event of any litigation, whether in a court of law, administrative hearing, arbitration, or otherwise, arising from or related to this Agreement of the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred, including staff time, court costs, attorneys' fees and all other related expenses in such litigation.
3.5.6 Indemnification
3.5.6.1 General Indemnification. Except as provided in subdivision
3.5.6.2 below which is applicable to “design professionals” only, Vendor shall defend (with counsel acceptable to City), indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, errors, omissions or willful misconduct of Vendor, its officials, officers, employees, agents, Vendors and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses. The Vendor’s duty to indemnify shall extend to any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity that Vendor and/or its personnel are employees of the City, have been misclassified as an independent contractors, or failed to pay any or all necessary state or federal withholdings and/or taxes. Vendor shall defend, at Vendor's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Vendor shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding.
Vendor shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Vendor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials 12 officers, employees, and agents or volunteers. Vendor shall not be obligated to defend, indemnify or hold the City harmless in any manner whatsoever for any claims or liability arising solely out of the City's own negligent acts, errors or omissions or willful misconduct.
3.5.6.2 Design Professionals. The provisions of this subdivision
3.5.6.2 shall apply only in the event that Vendor is a "design professional" within the meaning of California Civil Code section 2782.8(c). If Vendor is a "design professional" within the meaning of Section 2782.8(c), then, notwithstanding subdivision 3.5.6.1 above, to the fullest extent permitted by law (including, without limitation, Civil Code sections 2782 and 2782.6), Vendor shall defend (with legal counsel reasonably acceptable to City), indemnify and hold harmless City and City’s officers, officials, employees, volunteers and agents from and against any Claim that arises out of, pertains to, or relates to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of Vendor, any subvendor, subcontractor or any other person directly or indirectly employed by them, or any person that any of them control, arising out of Vendor's performance of any task or service for or on behalf of City under this Agreement. The Vendor’s duty to indemnify shall extend to any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity that Vendor and/or its personnel are employees of the City, have been misclassified as an independent contractors, or failed to pay any or all necessary state or federal withholdings and/or taxes. Such obligations to defend, hold harmless and indemnify City or any City officers, officials, employees or volunteers shall not apply to the extent that such Claims are caused in part by the sole active negligence or willful misconduct of City or such City officers, officials, employees, volunteers and agents. Vendor's cost to defend City and/or City’s officers, officials, employees or volunteers against any such Claim shall not exceed Vendor's proportionate percentage of fault with respect to that Claim; however, pursuant to Civil Code section 2782.8(a), in the event that one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, Vendor shall meet and confer with City (and, if applicable, other parties) regarding any unpaid defense costs. To the extent Vendor has a duty to indemnify City or any City officers, officials, employees, volunteers and/or agents under this subdivision 3.5.6.2, Vendor shall be responsible for all incidental and consequential damages resulting directly or indirectly, in whole or in part, from Vendor's negligence, recklessness or willful misconduct.
3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be the courts in Los Angeles County.
3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.5.10 City's Right to Employ Other Vendors. City reserves right to employ other Vendors in connection with this Project.
13 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.5.12 Assignment or Transfer. Neither party shall assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the other party. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
3.5.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Vendor include all personnel, employees, agents, and subcontractors of Vendor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.18 Prohibited Interests. Vendor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Vendor, to solicit or secure this Agreement. Further, Vendor warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Vendor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the 14 term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.5.19 Equal Opportunity Employment. Vendor 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. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Vendor shall also comply with all relevant provisions of any City Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.5.20 Labor Certification. By its signature hereunder, Vendor certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services.
3.5.21 Authority to Enter Agreement. Vendor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.5.22 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument.
3.5.23 Effect of Conflict
In the event of any conflict, inconsistency, or incongruity between any provision of this Agreement, any of its exhibits, attachments, purchase order, or notice to proceed, the provisions of this Agreement will govern and control.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Vendor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Vendor shall require and verify that all subcontractors maintain insurance meeting all of the requirements set forth in this Agreement. Vendor shall ensure that City is an additional insured as required in Section 3.2.10.4. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 15 CITY OF DOWNEY,
a California municipal corporation
and charter city
Avail Technologies, Inc,
a Pennsylvania Corporation
By:
Roger Bradley, City Manager Mk3FafaTe–?
Chief Technology Officer
Attest Attest:
Maria Alicia Duarte,
City Clerk Secretary
Approved as to Form.Approved as to Form.
Raj\ F Legal Counsel
0119.123859
16 EXHIBIT "A"
SCOPE AND SCHEDULE OF SERVICES AND COMPENSATION
; iii::: iii: iMg; iiIQUO I L
TECHNOLOGIES. INC
June 10, 2022
Updated 9/20/2023
Updated 10/19/2023: Updated offer date.
Updated 1 1/21/2023: Updated addressee.
Updated 12/19/2023: Updated good until date; changed lteris reference to City of Downey.
Updated 12/20/2023: Updated good until date.
Matthew Baumgardner, P.E.
Director of Public Works/City Engineer
11111 Brookshire Avenue
City of Downey
Downey, CA 90241
RE: Quote for City of Downey Transit
Dear Matthew,
Avail Technologies, Inc. is pleased to provide the following quote to the City of Downey for Avail to deliver products and services for The City of Downey Transit. This quote is based on the budgetary estimate ROM Avail provided to lteris on June 1 0, 2022. Based on further discussions with, and additional data provided by, lteris, Avail is honoring the original pricing with following understanding and assumptions:
•In-bus hardware would be installed on seven (7) buses identical to the bus submitted by lteris to Avail via photograph(s).
Avail shall have the opportunity to demonstrate our solution to the City of Downey as part of accepting the terms of this quote.
The only requirements for final sell-off besides the delivery of the Avail products and services stated below is a sell-off test between Avail and lteris to demonstrate successful BSP packet delivery along an agreed to route and intersections. •
•
Project Scope and Deliverables including I" year Warranty, Support, Cloud Hosting myAvail cloud hosted backend
o Live Map
o Traffic Signal Priority Management (LA METRO BSP compatible) o Business Intelligence
• Schedule Adherence Dashboard, Analysis
•
availtec.com 1 814-234-3394 1 1960 Old Gatesburg Rd.. Suite 200 State College. PA 16803 EXHIBIT "A"
Quote for City of Downey
•myStop Real-Time Passenger Information
o App (iOS, Android)
o Website (branded w/ customer logo)
o SMS texting (Access to 321123 vanity short code)
o Email and SMS text subscription alerts
o Interactive Voice Response (1-port max 1000 calls, local phone number) o GTFS static
o GTFS-RT
o Cal-ITP certified
o Regional LA METRO 511 compatible
Vehicle Equipment (7 buses installed, 1 spare kid
o 10" Driver Display
o IVUMXC2300, provides:
• Automatic Vehicle Location
• Schedule Adherence
• Communication with LA METRO BSP-enabled traffic signal intersections o Digi WR54 wireless router
Services
o Project Management, System Engineering, Vehicle Survey, and Installation o Training
o Activation and testing on LA METRO BSP network. Includes 1-week onsite support for formal sell off testing.
1- Year Warranty & Support, Preventative Maintenance and Professional Services o Cloud hosting fees (Microsoft Azure)
o Cellular data fees (Verizon)
o Extended software warranty (free software upgrades)
o Extended hardware warranty (RMA support and repair)
o Invitation to Annual User Conference
o Access to Customer Portal (documentation, training videos, user guides, standard operating procedures, support case submission/tracking) o Email and 24-7 phone support
o Fixed route schedule publish support (1-time per year) o Cybersecurity-certified (SOCll)
•
•
•
• TOTAL $232,500
: iii::==@!;;:ova 1 L
TECHNOLOGIES. INC
availtec.com 1 814-234-3394 1960 Old Gatesburg Rd., Suite 200 State College. PA 16803 2
Quote for City of Downey
Avail shall invoice per the following schedule, with payment due Net30.
Milestone Name Milestone
Amount
$ 58,125.00
$ 58,125.00
$ 58,125.00
58, 125.00
Kickoff / Completion of Survey / Final Deliverabl
Delivery of Equipment
Completion of Vehicle Installations
Final Sell Off Test Full Fleet
Annual Maintenance of $65,000 will be invoiced annually on the Project Completion anniversary date starting in Year 2.
This offer shall remain valid until January 31 “, 2024. Should you have any questions or would like to discuss these options in more detail, we would be happy to do that. Please feel free to contact me at (817) 909-3285 or email at [email protected]. We appreciate this opportunity and look forward to speaking with you soon.
Respectfully,
David Mugica
Director Business Development
CC Ed Norris, Deputy Director of Public Works
Laura Ochoa, Associate Civil Engineer
:::@!;;QUO I L
TECHNOLOGIES. INC
availtec.com 814-234-3394 1 1960 Old Gatesburg Rd.. Suite 200 State College, PA 16803 3