f 70
PROFESSIONAL SERVICES AGREEMENT
On- Call Signal and Lighting Emergency Repair Services] THIS PROFESSIONAL SERVICES AGREEMENT ( the " Agreement") is made at Orange, California, on this - 4 t day of kq t5 , 2020 ( the " Effective Date") by and between the CITY OF ORANGE, a municipal corporation (" City"), and SIEMENS MOBILITY, INC., a Delaware corporation (" Contractor"), who agree as follows:
1. Services. Subject to the terms and conditions set forth in this Agreement, Contractorshallprovideto thereasonablesatisfactionof City the servicessetforth in Exhibit" A," which is attached hereto and incorporated herein by reference. As a material inducement to City to enterinto this Agreement, Contractorrepresentsandwarrantsthat it hasthoroughly investigated and considered the scope of services and fully understands the difficulties and restrictions in performing the work. The serviceswhich arethe subjectof this Agreementare not in the usual course of City' s business and City relies on Contractor' s representation that it is independently engagedin the businessof providing such servicesand is experiencedin performing the work.
Contractorshall perform all servicesin a mannerreasonablysatisfactoryto City and in a manner in conformance with the standards of quality normally observed by an entity provided such services to a municipal agency. All services provided shall conform to all federal, state and local laws, rules and regulations and to the best professional standards and practices. The terms and conditions set forth in this Agreement shall control over any terms and conditions in Exhibit " A" to the contrary.
Jimmy Rocha, Operations Superintendent (" City' s Project Manager"), shall be the person to whom Contractor will report for the performance of services hereunder. It is understood that Contractor'sperformancehereundershall beunderthe supervisionof City' sProjectManager (or his/ her designee), that Contractor shall coordinate its services hereunder with City' s Project Manager to the extent required by City' s Project Manager, and that all performancesrequired hereunderby Contractorshall beperformedto the satisfactionof City' s ProjectManagerandthe City Manager.
2. Compensation and Fees.
a. Contractor's total compensation for all services performed under this Agreement during the Initial Term, shall not exceed TWO HUNDRED FORTY THOUSAND DOLLARS and 00/ 100 ($ 240,000.00) without the prior written authorization of City. b. The above compensation shall include all costs, including, but not limited to, all clerical, administrative, overhead, insurance, reproduction, telephone, travel, auto rental, subsistence and all related expenses.
2. 1 Term and Extension( s)
a. The Initial Term of this Agreement is three ( 3) years (the " Initial Term"), commencing upon the Effective Date and expiring on June 30, 2023 ( the " Expiration Date"); provided, however, that City has the right to extend the term of this Agreement for the following extensions and upon the following terms:
First Extension ( the " First Extension Term") commencing July 1, 2023 and terminating June 30, 2025, in total amount not to exceed ONE HLTNDRED SIXTY THOUSAND DOLLARS and 00/ 100 ($ 160,000.00) without the prior written authorization of City b. The City Manager is hereby authorized on behalf of City to give written notice to Contractor of City' s intention to exercise the First Extension( if at all) no later than thirty 30) daysprior to the Expiration Date of the Initial Term; provided, however,that City' s notice of its intention to extend the term of this Agreement shall be expressly conditioned upon and subject to the approval by the City Council, in its sole and absolute discretion, of an amount sufficient to pay the compensationsetforth hereinfor the First Extensionaspart of its annualbudgetapproval process prior to the beginning of the First Extension. While the parties acknowledge that City is required to give its notice of intention to extend the term of this Agreement not later than thirty 30) days prior to the expiration of the Initial Term, it is possible that the City Council' s approval of its annual budget and appropriation of funds for the First Extension may occur thereafter.
Accordingly, if the City Council fails to approve and appropriate funds sufficient to pay the amount of compensation set forth herein for the First Extension, this Agreement shall terminate and be of no further force and effect as of the expiration of the Initial Term. Notwithstanding anything in this provision to the contrary, in the event City gives Contractor written notice exercising the First Extension and City receives notice that appropriation of funds for the First Extension are not available after Contractor has performed services under the First Extension, City agrees that Contractorwill be equitablycompensatedfor all servicesperformedunderanyportion of theFirst Extension through the date of termination of the Agreement. Except as specifically set forth herein, the terms and conditions of the First Extension will be the same as the Initial Agreement. c. The First Extension, if properly exercised, shall be memorialized in the form of an amendment to this Agreement. The City Manager is hereby authorized to approve and execute amendment to this Agreement reflecting the exercise of the First Extension and the amount of compensation ( including the amount of funds to be made available for additional work or services) payable to Contractor for the First Extension.
3. Pavment.
a. As scheduled services are completed, Contractor shall submit to City an invoice for the services completed, authorized expenses and authorized extra work actually performedor incurred.
b. All such invoices shall state the basis for the amount invoiced, including services completed, the number of hours spent and any extra work performed. c. City will pay Contractor the amount invoiced within thirty ( 30) days of receipt of all deliverables.
d. Payment shall constitute payment in full for all services, authorized costs and authorized extra work covered by that invoice.
2 4. Chan e Orders. No payment for extra services caused by a change in the scope or complexity of work, or for any other reason, shall be made unless and until such extra services and a price therefor have been p"reviously authorized in writing and approved by City as an amendment to this Agreement. City' s Project Manager is authorized to approve a reduction in the services to be performed and compensation therefor. All amendments shall set forth the changes of work, extension of time, and/or adjustment of the compensation to be paid by City to Contractor and shall be signed by the City' s Project Manager, City Manager or City Council, as applicable.
5. Licenses. Contractor represents that it and any subcontractors it may engage, possess any and all licenses which are required under state or federal law to perform the work contemplatedby this Agreement and that Contractor and its subcontractorsshall maintain all appropriate licenses, including a City of Orange business license, at its cost, during the performance of this Agreement.
6. Independent Contractor. At all times during the term of this Agreement, Contractor shall be an independent contractor and not an employee of City. City shall have the right to control Contractor only insofar as the result of Contractor' s services rendered pursuant to this Agreement. City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Agreement. Contractor shall, at its sole cost and expense, furnish all facilities, materials and equipment which may be required for furnishing services pursuant to this Agreement. Contractor shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its subcontractors, agents and employees, including compliance with social security withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever.
Contractor acknowledges that it and any subcontractors, agents or employees employed by Contractor shall not, under any circumstances, be considered employees of City, and that they shall not be entitled to any of the benefits or rights afforded employees of City, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental, long-term disability or workers' compensation insurance benefits.
7. Contractor Not A ent. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, to bind City to any obligation whatsoever.
8. Desi nated Persons. Only those qualified persons authorized by City' s Project Manager, or as designated in Exhibit" A," shall perform work provided for under this Agreement.
It is understood by the parties that clerical and other nonprofessional work may be performed by persons other than those designated.
9. Assignment or Subcontracting. No assignment or subcontracting by Contractor of anypart of this Agreementor of fundsto bereceivedunderthis Agreementshallbe of anyforce or effect unless the assignment has the prior written approval of City. City may terminate this Agreement rather than accept any proposedassignment or subcontracting. Such assignment or subcontractingmay beapprovedby the City Manageror his/her designee. 3 10. Time of Completion. Except as otherwise specified in Exhibit " A," Contractor shall commence the work provided for in this Agreement within five( 5) days of the Effective Date of this Agreement and diligently prosecutecompletion of the work in accordancewith the time period setforth in Exhibit" A" heretoor asotherwiseagreedto by andbetweentherepresentatives of the parties.
11. Time Is of the Essence. Time is of the essence in this Agreement. Contractor shall do all things necessaryand incidentalto theprosecutionof Contractor'swork.
12. Reserved.
13. Delays and Extensions of Time. Contractor' s sole remedy for delays outside its control, otherthanthosedelayscausedby City, shall be anextensionof time. No matterwhat the causeof the delay,Contractormustdocumentanydelayandrequestanextensionof time in writing at the time of the delayto the satisfactionof City. Any extensionsgrantedshall be limited to the length' of the delay outside Contractor' s control. If Contractor believes that delays caused by City will causeit to incur additional costs, it must specify, in writing, why the delay has caused additional costs to be incurred and the exact amount of such cost at the time the delay occurs. No additional costscan be paid that exceedthe not to exceedamount statedin Section2.a, above, absent a written amendment to this Agreement.
14. Products of Contractor. The documents, studies, evaluations, assessments, reports,plans, citations, materials, manuals,technical data, logs, files, designsandotherproducts producedor provided by Contractorfor this Agreement shall becomethe property of City upon receipt. Contractor shall deliver all such products to City prior to payment for same. City may use,reuseor otherwiseutilize suchproductswithout restriction.
15. Eaual Emnlovment Opportunitv. During the performanceof this Agreement, Contractor agrees as follows:
a. Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, mental or physical disability, or anyotherbasisprohibitedby applicablelaw. Contractorshall ensurethat applicantsareemployed, and that employees are treated during employment, without regard to their race, color, religion, sex,national origin, mental or physical disability, or any otherbasisprohibited by applicablelaw.
Such actions shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Contractor agreesto post in conspicuousplaces, availableto employeesandapplicantsfor employment, a notice setting forth provisions of this non-discrimination clause.
b. Contractor shall, in all solicitations and advertisements for employees placedby, or on behalf of Contractor, statethat all qualified applicantswill receiveconsideration for employment without regardto race, color, religion, sex, national origin, mental or physical disability, or any otherbasisprohibited by applicablelaw. 4 c. Contractor shall causethe foregoing paragraphs( a) and( b) to be inserted in all subcontractsfor any work coveredby this Agreement, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials.
16. Conflicts of Interest. Contractor agrees that it shall not make, participate in the making, or in anyway attemptto useits position asa consultantto influence any decisionof City in which Contractor knows or has reason to know that Contractor, its officers, partners, or employees have a financial interest as defined in Section 87103 of the Government Code.
Contractor further agreesthat it shall not be eligible to work asthe design/build firm for the project that is the subject of this Agreement.
17. Indemnitv.
a. To the fullest extent permitted by law, Contractor agreesto indemnify, defendandhold City, its City Council andeachmemberthereof, andthe officers, officials, agents and employees of City( collectively the " Indemnitees") entirely harmless from all liability arising out of:
1) Any and all claims under workers' compensationacts and other employee benefit acts with respect to Contractor' s employees or Coritractor' s subcontractor' s employeesarising out of Contractor's work under this Agreement, including any and all claims underany law pertaining to Contractoror its employees' statusasan independentcontractorand any and all claimsunderLabor Codesection1720relatedto thepaymentof prevailing wagesfor public works projects; and
2) Any claim, loss, injury to or deathof personsor damageto property causedby any act, neglect, default, or omission other than a professional act or omission of Contractor, or person, firm or corporation employed by Contractor, either directly or by independentcontract, including all damagesdueto loss or theft sustainedby any person, firm or corporation including the Indemnitees, or any of them, arising out of, or in any way connected with the work or services which are the subject of this Agreement, including injury or damage either on or off City' sproperty; but not for any loss, injury, deathor damagecausedby the active negligence or willful misconduct of City. Contractor, at its own expense, cost and risk, shall indemnify any andall claims, actions, suitsor otherproceedingsthat may bebrought or instituted againstthe Indemniteeson anysuchclaim or liability coveredby this subparagraph, andshallpay or satisfy anyjudgment that may be renderedagainstthe Indemnitees, or any of them, in any action, suitor otherproceedingsasaresultof coverageunderthissubparagraph. b. To the fullest extentpermitted by law, Contractoragreesto indemnify and hold Indemniteesentirely harmlessfrom all liability arising out of any claim, loss, injury to or deathof personsor damageto propertycausedby itsnegligentprofessionalactor omissionin the performanceof professionalservicespursuantto this Agreement. c. Except for the Indemnitees, the indemnifications provided in this Agreementshall not be construedto extendanythird party indemnification rights of any kind to anypersonor entity which is not a signatoryto this Agreement. 5 d. The indemnities set forth in this section shall survive any closing, rescission, or termination of this Agreement, and shall continue to be binding and in full force and effect in perpetuity with respectto Contractorand its successors.
18. Insurance.
a. Contractor shall carry workers' compensation insurance as required by law for theprotectionof its employeesduring theprogressof the work. Contractorunderstandsthat it is an independent contractor and not entitled to any workers' compensation benefits under any City program.
b. Contractor shall maintain during the life of this Agreement the following minimum amount of comprehensivegeneralliability insuranceor commercial general liability insurance: the greater of ( 1) One Million Dollars ($ 1,000,000) per occurrence; or ( 2) all the insurancecoverageand/or limits carriedby or availableto Contractor. Saidinsuranceshall cover bodily injury, deathandproperty damageandbe written on anoccurrencebasis. c. Contractorshall maintain during the life of this Agreement, the following minimum amountof automotiveliability insurance: the greaterof( 1) a combinedsingle limit of One Million Dollars ($ 1, 000, 000); or ( 2) all the insurance coverage and/or limits carried by or availableto Contractor. Said insuranceshall cover bodily injury, deathandproperty damagefor all owned, non- owned and hired vehicles and be written on an occurrence basis. d. _ Any insuranceproceedsin excessof or broaderthanthe minimum required coverage and/or minimum required limits which are applicable to a given loss shall be available to City. No representationis madethat the minimum insurancerequirementsof this Agreement are sufficient to cover the obligations of Contractor under this Agreement. e. Eachpolicy of generalliability and automotiveliability shall provide that City, its officers, officials, agents, andemployeesaredeclaredto be additional insuredsunderthe terms of the policy, but only with respect to the work performed by Contractor under this Agreement. A policy endorsementto that effect shallbeprovidedto City alongwith the certificate of insurance. In lieu of anendorsement, City will accepta copyof thepolicy(ies)which evidences that City is an additional insured as a contracting party. The minimum coverage required by Subsection18.b andc, above, shall apply to City asanadditional insured. f. Contractor shall maintain during the life of this Agreement professional liability insurancecoveringerrorsandomissionsarising out of theperformanceof this Agreement with a minimum limit of One Million Dollars ($ 1, 000, 000) per claim. Contractor agrees to keep suchpolicy in force andeffectfor at leastfive (5) yearsfrom the dateof completionof this Agreement.
g. The insurancepolicies maintainedby Contractorshallbeprimary insurance andno insuranceheld or ownedby City shall be called upon to cover any loss underthe policy.
Contractorwill determineits own needsin procurementof insuranceto cover liabilities otherthan as stated above.
6 h. Before Contractor performs any work or prepares or delivers any materials, Contractor shall furnish certificates of insurance and endorsements, as required by City, evidencingthe aforementionedminimum insurancecoverageson forms acceptableto City, which shall provide that the insurancein force will not be canceledor allowed to lapsewithout at least ten ( 10) days' prior written notice to City.
i. Except for professional liability insurance coverage that may be required by this Agreement, all insurance maintained by Contractor shall be issued by companies admitted to conductthe pertinent line of insurancebusinessin California andhaving a rating of GradeA or better and Class VII or better by the latest edition of Best Key Rating Guide. In the case of professional liability insurance coverage, such coverage shall be issued by_companies either licensed or admitted to conduct business in California so long as such insurer possesses the aforementioned Best rating.
j Contractor shall immediately notify City if any required insurance lapses or is otherwise modified and ceaseperformance of this Agreement unless otherwise directed by City.
In such a case, City may procure insurance or self- insure the risk and charge Contractor for such costs and any and all damages resulting therefrom, by way of set-off from any sums owed Contractor.
k. Contractor agreesthat in the event of loss due to any of the perils for which it has agreedto provide insurance, Contractor shall loolc solely to its insurancefor recovery.
Contractorherebygrantsto City, on behalfof any insurerproviding insuranceto eitherContractor or City with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer may acquire against City by virtue of the payment of any loss under such insurance.
1. Contractor shall include all subcontractors, if any, as insureds under its policies or shall furnish separatecertificate's and endorsementsfor eachsubcontractorto City for review and approval. All coverages for subcontractors shall be subject to all of the requirements stated herein.
19. Termination. City may for any reason terminate this Agreement by giving Contractor not less than five ( 5) days' written notice of intent to terminate. Upon receipt of such notice, Contractorshall immediately ceasework, unlessthe notice from City provides otherwise.
Upon the termination of this Agreement, City shall pay Contractor for services satisfactorily provided andall allowablereimbursementsincurredto the dateof termination in compliancewith this Agreement, unless termination by City shall be for cause, in which event City may withhold any disputed compensation. City shall not be liable for any claim of lost profits.
20. Maintenance and Inspection of Records. In accordance with generally accepted accounting principles, Contractor and its subcontractors shall maintain reasonably full and completebooks, documents, papers, accountingrecords, and other information (collectively, the records") pertainingto the costsof andcompletion of servicesperformedunderthis Agreement.
City and its authorizedrepresentativesshall have accessto and the right to audit and reproduce anyof Contractor'srecordsregardingtheservicesprovidedunderthisAgreement. Contractorshall maintain all such records for a period of at least three (3) years after termination or completion of 7 this Agreement. Contractor agrees to make available all such records for inspection or audit at its offices during normal business hours and upon three( 3) days' notice from City, and copies thereof shall be furnished if requested.
21. Compliance with all Laws/ Immi ration Laws.
a. Contractor shall be knowledgeable of and comply with all local, state and federal laws which may apply to the performance of this Agreement. b. If the work provided for in this Agreement constitutes a" public works," as that term is defined in Section 1720 of the California Labor Code, for which prevailing wages must be paid, to the extent Contractor's employeeswill perform any work that falls within any of the classifications for which the Department of Labor Relations of the State of California promulgates prevailing wage determinations, Contractorherebyagreesthat it, and any subcontractorunder it, shall pay not less than the specified prevailing rates of wages to all such workers. The general prevailingwagedeterminationsfor craftscanbe locatedon the websiteof the Departmentof Industrial Relations ( www. dir. ca. g;ov/ DLSR). Additionally, to perform work under this Contract, Contractor must meet all State registration requirements and criteria, including project compliance monitoring.
c. Contractor represents and warrants that Contractor:
1) Has complied and shall at all times during the term of this Agreement comply, in all respects, with all immigration laws, regulations, statutes, rules, codes, and orders, including, without limitation, the Immigration Reform and Control Act of 1986 IRCA); and
2) Has not and will not knowingly employ any individual to perform services under this Agreement who is ineligible to work in the United States or under the terms of this Agreement; and
3) Has properly maintained, and shall at all times during the term of this Agreement properly maintain, all related employment documentation records including, without limitation, the completion and maintenance of the Form I- 9 for each of Contractor' s employees; and
4) Has responded, and shall at all times during the term of this Agreement respond, in a timely fashion to any government inspection requests relating to immigration law compliance and/or Form I- 9 compliance and/or worksite enforcement by the Department of Homeland Security, the Department of Labor, or the Social Security Administration.
d. Contractor shall require all subcontractors or subconsultants to make the same representations and warranties as set forth in Subsection 21. c. e. Contractor shall, upon request of City, provide a list of all employees working underthis Agreementandshallprovide,to thereasonablesatisfactionof City, verification 8 that all such employees are eligible to work in the United States. All costs associated with such verification shall be borneby Contractor. Oncesuchrequesthasbeenmade, Contractormay not changeemployeesworking underthis Agreementwithout written notice to City, accompaniedby the verification required herein for such employees.
f. Contractor shall require all subcontractors or sub- consultants to make the same verification as set forth in Subsection 21. e.
g. If Contractor or subcontractor knowingly employs an employee providing work under this Agreement who is not authorized to work in the United States, and/ or fails to follow federal laws to determine the status of such employee, that shall constitute a material breach of this Agreementandmay be causefor immediatetermination of this Agreementby City. h. Contractor agrees to indemnify and hold City, its officers, officials, agents andemployeesharmlessfor, of andfrom anyloss, including but not limited to fines,penaltiesand correctivemeasuresCity may sustainby reasonof Contractor's failure to comply with said laws, rulesandregulationsin connectionwith theperformanceof this Agreement.
22. Governin Law and Venue. This Agreement shall be construed in accordance with and governedby the laws of the Stateof California and Contractor agreesto submit to the jurisdiction of California courts. Venue for any disputearising underthis Agreementshall be in Orange County, California.
23. Integration. This Agreement constitutes the entire agreement of the parties. No otheragreement,oral or written, pertainingto thework to beperformedunderthis Agreementshall be of any force or effect unless it is in writing and signed by both parties. Any work performed which is inconsistent with or in violation of the provisions of this Agreement shall not be compensated.
24. Notice. Except as otherwise provided herein, all notices required under this Agreement shall be in writing and delivered personally, by e-mail, or by first classU.S. mail, postage prepaid, to each party at the address listed below. Either party may change the notice addressby notifyingtheotherpartyin writing. Noticesshallbedeemedreceiveduponreceiptof same or within three (3) days of deposit in the U. S. Mail, whichever is earlier. Notices sent by e- mail shall be deemed received on the date of the e-mail transmission.
CONTRACTOR" CITY"
Siemens Mobility, Inc. City of Orange
2250 Business Way 300 E. Chapman Avenue
Riverside, CA 92501 Orange, CA 92866- 1591
Attn.: Mr. Robert Paquette Attn.: Mr. Jimmy Rocha
Telephone: ( 951) 784- 6600 Telephone: ( 714) 532- 6477 E- Mail: robert. paquette@siemens. com E-Mail: jrocha@cityoforange. org 9 25. Counternarts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as original signatures.
IN WITNESS of this Agreement, the parties have entered into this Agreement as of the year and day first above written.
CONTRACTOR" CITY"
SIEMENS MOBILITY, INC., CITY OF ORANGE, a municipal corp ration a Delaware cor • tion
By. By.
Printed Name:
r
Mar A. Murphy, ayor
Title: ` e r
ATTEST:
Printed Name: ` . , v s
Title: 5
Pamela Coleman, City Clerk
APPROVED AS TO FORM:
Mary E. Bi ning
Senior Assistant City Attorney
NOTE: City requires the following signature( s) on behalf of the Contractor:
1) The Chairman of the Board, the President or a Vice- President, AND ( 2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR The corporate off' icer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary closein time to the execution of the Agreement, must be provided to City.
10 EXHIBIT " A"
SCOPE OF SERVICES
Description and Location of Work
The work to be doneconsistsin generalof on-call emergencyresponseservicesfor traffic signal systems, flashing lights, highway safety lighting and street lighting systems for the various locations that are the responsibility of the City of Orange.
Facilities
Contractor shall have available and readily accessible all required tools, equipment, apparatus, facilities, skilled labor services and materials to perform all work necessary to make a permanent or temporary repair for traffic signal systems, flashing lights and highway safety lighting in a proper workman- like manner." Contractor shall also maintain a single local telephone number where he can be reached 24 hours a day, seven days a week.
Personnel
Techniciansprovided by Contractor to perform work under this Agreement shall have minimum certification as a LEVEL II TRAFFIC SIGNAL TECHNICIAN issued by the International Municipal Signal Association ( IMSA). The certification must be held in good standing and shall be maintained current throughout the entire duration of the Agreement.
Response Criteria for Requested Services- Emergencv Response/ Snare Equipment Requirements
EmergencyResponseServicesaretop priority safetyconcern. Whennotified by City to respondto an emergencysituation, Contractorshall be at the site immediately with all possiblehastewithin ONE 1) hour of first notification.
The following eventsshall establishan emergencycondition andthe following action shall be taken:
Failure or malfunction of the traffic signal system or interruption of normal signal operations whether caused by damage from vehicle collisions, Acts of God, civil disorder, malicious mischief or other similar circumstances. Under these conditions Contractor shall use all the labor and materials necessaryto immediately restore a safe and efficient operation of City' s traffic signalandhighway lighting system. Generally,emergencymaintenanceinvolvesthereplacement of equipmentdamagedby Acts of God, civil disorder, vehicle collisions or vandalism, but such replacements may also stem from obsolescence or other unusual factors. The following list identifies the most common items of this work.
1. Install replacement signal poles and/or mast-arms.
2. Install replacement signal heads and frame work.
3. Install replacement cabinet assemblies.
4. Install replacement LED signal or pedestrian indication ( countdown) assemblies.
5. Respondto streetlighting related issuessuch as: pole knock downs, overheadwiring issues, and new pole footings
6. Replace, damaged signal wire with cable
Occasionally, miscellaneouswork, including, but not limited to, furnishing and/or installing various traffic signal equipment/ components, checicing operations and troubleshooting, and performing repairs, may berequired.
12 Y E F ur ii'
1T`f CLERK
CITY OF ORANGE
Y020AUG24 PM2: !
CONTRACT/ AGREEMENT TRANSMITTAL
ROUTE TO: CITY CLERK' S OFFICE
FROM: Francisco Vasquez for Larry Tay EXT. 5537
DEPT. HEAD APPROVAL: 8/ 19/ 2020
Of contract and funds) Date]
COUNCIL DATE: August 11, 2020( Agenda Item 3. 8)
If applicable)
SUBJECT: Professional Services Agreement with Siemens for On- Call Signal and Li htin Emer encv Repair Services
ACCOUNT NO: 100. 5074. 51700. 00000
TOTAL COST: $ 240, 000. 00
NOTES:
Q:Forms/ City Clerk/ contract transmittal
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Item #: 3. 8. 8/ 11/ 2020 File#:
20- 041
TO: Honorable Mayor and Members of the City Council THRU: Rick Otto, City Manager
FROM: Christopher Cash, Public Works Director
1. SUBJECT
Professional Services Agreement with Siemens Mobility Inc. for on-call signal and lighting emergency repair services.
2. SUMMARY
Proposals for signal and lighting emergency repair services were received and opened on June 29, 2020. The most qualified responder is Siemens Mobility Inc. The total cost for the three- year term is 240. 000.
3. RECOMMENDED ACTION
1. Award a three- year contract to Siemens Mobility, Inc. in the amount not- to- exceed $ 240, 000; and authorize the Mayor and City Clerk to execute on behalf of the City.
2. Authorize the City Manager to execute an optional two-year contract extension in the amount not to exceed $ 160, 000.
4. FISCAL IMPACT
The total expenditure for this three year contract is $ 240, 000 and will be funded through the General Fund ( 100).
5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
b: Provide and maintain infrastructure necessary to ensure the safety of the public.
6. DISCUSSION AND BACKGROUND
Emergency traffic signal and street lighting repair services are those beyond the scope of routine preventive maintenance performed by in-house staff, and generally require specialized equipment and resources that are not economical for the City to provide for itself. The types of incidents that constitute an emergency cond'ition include, but are not limited to, signal or street light pole "knock- downs," failure or malfunction of the traffic signal system, interruption of normal signal operation due to vehicle collisions, power outages, and other similar circumstances.
Siemens Mobility Inc. ( Siemens) has been successfully providing such services to the City since 2011. The City' s current agreement with Siemens, awarded in 2016, expires in August 2020, and has 1 City of Orange Page 1 of 2 Printed on 8/ 6/ 2020
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Item #: 3. 8. 8/ 11/ 2020 File#:
20- 041
already been extended for the maximum allowable term. Therefore, staff initiated a procurement process to solicit prospective firms to continue providing these services.
Staff issued a request for proposals in June 2020 to known, reputable traffic signal maintenance firms in the area: Bear Electric, Econolite, and Siemens. The City received proposals from each of the three, which were then reviewed by staff for qualifications, experience, submittal quality, project understanding and methodology, and cost. Based on the above criteria, Siemens' proposal ranked the highest due to the depth and proximity of available resources, familiarity with the City's traffic signal infrastructure, extensive municipal experience, and low hourly rates. Moreover; Siemens has demonstrated responsiveness and effectiveness in serving the City over the last nine years.
For perspective, Siemens' negotiated rates across the most frequently utilized services are approximately five percent above those of their current contract. The cost differential is reduced to three percent when considering that the current contract, if not expiring, contains provisions for a two percent annual cost escalation. A three percent increase is reasonable considering that Siemens' current rates were already low at the time of the 2016 contract execution, and the two percent annual escalation did not keep pace with increases in the consumer price index over the same time period.
Further, Siemens' proposed rates are fixed over the three-year term, with no provisions for any cost escalation. Lastly, Siemens' rates for frequently utilized services are between 15 and 18 percent below the other proposals.
The three- year contract is for an amount not- to- exceed $ 240, 000. If mutually agreeable, the contract also contains a provision for a two- year extension, not- to- exceed $ 160, 000, contingent upon Siemens' performance. Funding for Year 1 of the contract is included in the adopted Fiscal Year 2020- 21 Traffic Operations budget. Funding for the subsequent years will be requested through the annual budget adoption process.
7. ATTACHMENTS
Professional Services Agreement with Siemens Mobility, Inc.
RFP No 190- 59
2 City of Orange Page 2 of 2 Printed on 8/ 6/ 2020
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AGR-' 1o17./
SIEMENS
May 26, 2021
Mr. Jimmy Rocha
City of Orange
300 E. Chapman Ave
Orange, CA 92866- 1591
RE: Transfer of Siemens Mobility Contracts from Siemens Mobility, Inc. to Yunex LLC Dear Mr. Rocha,
On November 12, 2020, Siemens AG (" Siemens") announced that in the course of Siemens Mobility' s continued development, the unit Intelligent Traffic Systems (" ITS Business") will be carved out worldwide by the end of fiscal 2021 into separately managed entities under the new brand name Yunex Traffic.
Transferred into separate companies, the ITS Business will be able to further pursue its growth strategy, shape the digital transformation of its industry and actively drive market consolidation. In this connection, the unit will leverage its market- leading position in installed systems and drive advances in digitalization.
Offering innovative, smart, and comprehensive mobility solutions for roads and cities, the ITS Business is the world's only supplier of solutions serving all the main regional standards worldwide. Most recently, the unit generated revenue of about€ 600 million. Since 2013, the compound annual growth rate for orders has totaled eight percent.
In the context of this global carve- out, Siemens Mobility, Inc. ( hereinafter " Siemens Mobility") will transfer its ITS Business in the United States to Yunex LLC on July 1, 2021.
The transfer of Siemens Mobility' s ITS Business to Yunex LLC includes the transfer of all contracts pertaining to Siemens Mobility's ITS Business, includingthe following contract(s) between Siemens Mobility and you:
Professional Services Agreement On- Call Signal and Lighting Emergency Repair Services All contract appendices as well as all rights and obligations are included in the contract transfer.
In the event that a contract cannot be transferred, Yunex LLC shall, from July 1, 2021 on, fulfill obligations arising out of such contract as a subcontractor acting on behalf of Siemens Mobility.
To the extent required by the contract referenced herein, this letter seeks your consent to the contract transfer and assignment and satisfies any notice requirement with respect thereto. This letter does not confer any new rights ( including any right to consent to or to receive prior notice of the transfer and assignment) that do not currently exist under the contract.
We kindly ask you to consent to the transfer and assignment of the contract to Yunex LLC. Furthermore, we ask you to waive any and all rights that the contract might possibly grant due to changes in the shareholder structure of the legal entity holding the contract. Please sign and send back the enclosed declaration of consent.
Siemens Mobility, Inc. 9225 Bee Cave Road, Building B, Suite 201 Tel.: + 1 512- 837- 8300 Intelligent Traffic Systems Austin, TX 78733 www. usa. siemens. com/ mobility
SI EM EIVS
In addition, we would like to inform you about the following:
Bank account details for Yunex LLC:
Account Name: Yunex LLC
Account Number: 54021624
ABA Routing Number: 031100209
Bank Name: Citibank N. A.
One Penn' s Way
New Castle, DE 19720
Swift Code: CITIUS33
We would ask you to please use these new bank account details only after July 1, 2021.
The employer identification number for Yunex LLC is 86- 2136678.
If you currently have (an) exemption certificate(s) on file with Siemens Mobility, Inc. will receive an email from fts us tax_ exemptions. us@siemens. com requesting updated exemption certificate( s) to be issued to Yunex LLC through Avalara' s CertCapture tool with their unique link to populate their exemption form online or upload their prepopulated form. Exemption certificates not received by July 1, 2021, will result in taxes being included in invoices.
We are also currently in the process of reapplying for any required Contractor's Licenses in our regions of operation under Yunex LLC. While we kindly ask you to provide us with the signed consent form at your earliest convenience, the assignment of your contract will only take place once the required licenses are in place.
Please use the following contact details for correspondence relating to contractual relationships:
Yunex LLC
Attn: Anchal Bansal
9225 Bee Cave Road
Building B, Suite 201
Austin, TX 78733, USA
Phone: + 1 770- 598- 4705
E- mail: anchal. bansal@siemens. com
Should you have any questions, please do not hesitate to contact us. Thank you in advance for your support and for your cooperation.
Sincerely yours,
Siemens Mobility, Inc.
Steven Teal Anchal Bansal
Attachment: Declaration of Consent
51 EM ENS
From:
Mr. Jimmy Rocha
City of Orange
300 E. Chapman Ave
Orange, CA 92866- 1591
To:
Yunex LLC
Attn: Anchal Bansal
9225 Bee Cave Road
Building B, Suite 201
Austin, TX 78733, USA
RE: Transfer of Siemens Contracts from Siemens Mobility, Inc ( hereinafter " Siemens Mobility") to Yunex LLC
Dear Ms. Bansal,
We hereby confirm that we have read and understood the information in the letter from Siemens Mobility dated May 26, 2021.
We consent to the transfer of the contract pertaining to Siemens Mobility's ITS Business between us and SiemensMobilitytoYunexLLC, asspecifiedintheaforementionedletterfromSiemensMobility.Wehereby waive any and all rights that the contract grants to us for the case of changes in the shareholder structure of the legal entity holding the contract.
Place: 1 a 0. C,
Date: I'5 - APPROVED AS TO FORM
Signature:
Printed Name: G o M Y E. BINNING
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CITY OF ORANGE
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CONTRACT/ AGREEMENT TRANSMITTAL
ROUTE TO: CITY CLERK' S OFFICE
FROM: Francisco Vasquez for Larry Tav EXT. 5537
DEPT. HEAD APPROVAL: 8/ 25/ 2021
Of contract and funds) Date
COUNCIL DATE: N/ A
If applicable)
SUBJECT: Transfer of SiemensMobility Contracts from SiemensMobility, Inc. to Yunex LLC ACCOUNT NO:
TOTAL COST
NOTES:
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City of Orange
Public Works Departn ent
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Date: August 13, 2021
Too Rick Otto , City Manager
From: Christopher Cash, Public Works Directo
Subject: AGR 7017 - Approve Contractor Name Change from Siemens Mobility Ir c., to Yunex LLC
In August 2020, subsequent to a competitive procurement, the City Council approved a three- year agreement ( AGR- 7017) with Siemens Mobility, Inc. ( Siemens) to provide on-call signal and lighting emergency repair services. The City was recently informed that as part of a global corporate restructuring, Siemens would be transferring certain US-based services to Yunex, LLC, a Siemens business. To reflect this change, Siemens has requested that AGR- 7017 be formally transferred to Yunex LLC.
Becausecorporaterestructuringin the signaland lightingindustryoccursfairlyfrequentlyand typically wifihout compromise to service levels/quality, staff is supportive of the proposed transfer. Upon consultation with the City Attorney' s Office, the transfer can be approved by the City Manager via this memorandum. Please feel free to contact me if you have any questions or need additional information.
Approved
Rick Otto
City Manager
cc: Mary Binning
Sally Trejo
A R? o` 7. A. 1
FIRST AMENDMENT
TO
PROFESSIONAL SERVICES AGREEMENT
On- Call Signal and Lighting Emergency Repair Services] THIS FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT ( the First Amendment") is made and entered into as of qrC ' , 2022, by and between the CITY OF ORANGE, a municipal corporation (" City"), and YLTNEX LLC, a Delaware corporation Contractor"), with reference to the following:
A. City and Contractor entered into a Professional Services Agreement ( Agreement No. 7017) dated August 11, 2020, which is incorporated herein by this reference ( the " Original Agreement"); and
B. On September 15, 2021, City agreed to the assignment of the Original Agreement to Yunex LLC ( Agreement No. 7017A); and
B. City and Contractor desire to amend the Original Agreement to modify, amend and supplementcertainportions of the Original Agreementby increasingthe compensation.
NOW, THEREFORE, the parties hereby agree as follows:
Section 1. Defined Terms. Except as otherwise defined herein, all capitalized terms used herein shall have the meanings set forth for such terms in the Original Agreement.
Section 2. Cross- References. City and Contractor agree that all references in this First Amendment are deemed and construed to refer to the Original Agreement, as implemented by this First Amendment.
Section 3 Compensation. The total not- to- exceed compensation for the services to be renderedassetforthin Section2.aof theOriginalAgreementis increasedby THREEHLJNDRED THOUSAND DOLLARS and 00/ 100 ($ 300,000.00) and Section 2.a is hereby amended in its entirety to read as follows:
Contractor' s total compensation for all services performed under this Agreement, shall not exceed FIVE HUNDRED FORTY THOUSAND DOLLARS and 00/ 100 540,000.00) without the prior written authorization of City." Section 4. Integration. This First Amendment amends, as set forth herein, the Original Agreement and, except as specifically amended hereby, the Original Agreement shall remain in full force and effect. To the extent that there is any conflict or inconsistency between the terms and provisions of this First Amendmentandthetermsandprovisionsof the Original Agreement,the terms and provisions of this First Amendment shall control and govern the rights and obligations of the parties.
IN WITNESS of this First Amendment, the parties enter into this First Amendment on the year and day first above written.
CONTRACTOR" CITY"
YLTNEX LLC, a Delaware corporation CITY OF ORANGE, a municipal co oration By: By:
Printed ame: r Mark A. Murphy, Mayor
Title: f
ATTEST:
Printed Nam •
Title:
P ela Coleman, City Clerk
APPROVED AS TO FORM:
Mary E. B ing
Senior Assistant City Attorn
NOTE: If Contractor is a corporation, the City requires the following signature( s):
1) the Chairman of the Board, the President or a Vice- President, AND( 2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR
The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to the City. 2 G, R-7o1?, P.
CITY OF ORANGE
202P Eg 5 ' ii i I= 2 4
CONTRACT/ AGREEMENT TRANSMITTAL
ROUTE TO: CITY CLERK' S OFFICE
FROM: Francisco Vasquez for Larry Tav EXT. 5537
DEPT. HEAD APPROVAL: 02/ 25/ 2022
Of contract and funds) DateJ
COiTNCIL DATE : r03%0:8%2022'
If applicable)
SUBJECT: First Amendment to Professional Services Agreement with YLJNEX, LLC for On- Call Si rg_ial and Li htin encv Repair Services.
ACCOUNT NO: 100. 5074. 51700. 00000
TOTAL COST: $ 540. 000. 00
NOTES:
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Item #: 3. 10. 3/ 8/ 2022 File#: 22- 0070
TO: Honorable Mayor and Members of the City Council THRU: Thomas R. Hatch, Interim City Manager
FROM: Christopher Cash, Public Works Director
1. SUBJECT
First Amendment to Agreement with Yunex, LLC for On- Call Signal and Lighting Emergency Repair Services.
2. SUMMARY
The City is currently in the second year of a three- year agreement with Yunex, LLC, for an amount not- to- exceed $ 240, 000. During this time, the City has experienced copper wire theft that continues to result in street light outages and the need for emergency repairs. The contract capacity needs to be increased by $300, 000 to accommodate additional expenditures.
3. RECOMMENDED ACTION
Approve the First Amendment to Agreement with Yunex, LLC for On-Call Signal and Lighting EmergencyRepairServices, and authorizethe Mayorand City Clerk to executeon behalfof the City.
4. FISCAL IMPACT
The total expenditure for this First Amendment is $ 300, 000 and will be funded in Capital Projects 500) through Minor Traffic Control Devices ( 16302).
5. STRATEGIC PLAN GOALS
Goal 1: Provide for a safe community
B: Provide and maintain infrastructure necessary to ensure the safety of the public.
6. DISCUSSION AND BACKGROUND
Subsequent to a competitive procurement, the City entered into an Agreement with Siemens Mobility Inc. ( now Yunex, LLC,) in August 2020, to provide emergency signal and lighting repair services as needed. The Agreement is for an initial term of three years and an amount not- to- exceed $ 240, 000.
Contained within is an optional extension which authorizes the City Manager to extend the Agreement for an additional two years and an amount not- to- exceed $ 160, 000. Staff has not yet exercised the option to extend, as doing so would be premature since the initial term does not expire for another 18 months.
Unrelated to any future extension is the immediate need to increase the Agreement' s capacity by 300, 000 during the initial term, This increase is necessary to cover unexpected expenditures ( both actual and projected) associated with repairs that are due to recent and continuing copper wire thefts.
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Item #: 3. 10. 3/ 8/ 2022 File#: 22- 0070
If approved, the Agreement would be amended to reflect a not- to- exceed amount of $ 540, 000 ( the original $ 240, 000 plus the additional $ 300, 000) for the current three- year term. The optional two- '—' year extension would be preserved and considered at the appropriate time.
From time to time, many municipalities must confront copper street light wire thefts. While the problem can be chronic in the case of certain metropolitan areas, Orange has been largely unaffected for the past decade. Rather, local occurrences are expected to be episodic, occurring in waves for many months at a time. This particular wave began last summer as the price of commodities, including recycled copper, has risen to a level that encourages these activities. Public Works staff have been reporting all wire theft activities to the Police Department, and responding to follow- up requests for information that may ultimately lead to prevention and prosecution of related crimes. Staff have also begun to explore methods for securing the lighting infrastructure, including fortified utility boxes. However, because the thefts have been occurring at random locations, the City would have to fortify all of its street lighting infrastructure city-wide to ensure that areas being targeted by thieves are protected. Doing so requires capital investment that far exceeds the cost of wire replacement.
No budget appropriation is being requested at this time. Funding for the amendment is already available through one of the City's maintenance- type capital projects, Minor Traffic Control Devices 16302), which includes $ 150,000 appropriated as part of the FY 2022 mid-year budget adjustment.
The remaining $ 150,000 will be requested in increments, as part of the budget approval process and, if necessary, budget adjustment process for FY 2023. If the cessation of wire theft renders future budget requests unnecessary, a portion of the contract capacity added by this Amendment would remain unused.
7. ATTACHMENTS
First Amendment
Agreement with Siemens Mobility, Inc.
Transfer to Yunex, LLC
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