ATT 3 - Implementation Agreement Between the Western Riverside Council of Governments and the City of Murrieta

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IMPLEMENTATION AGREEMENT BETWEEN THE WESTERN

RIVERSIDE COUNCIL OF GOVERNMENTS AND THE CITY OF

MURRIETA TO IMPLEMENT THE MAINTENANCE AND REPAIR

PROGRAM FOR STREETLIGHTS

This Implementation Agreement (“Agreement”) is entered into as of April 1, 2018 (“Effective Date”) by and between the WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS (“WRCOG”), a joint powers authority formed under Government Code sections 6500 et seq., and the City of Murrieta (“Member Agency”), a public agency formed under the laws of the State of California. WRCOG and the Member Agency are sometimes collectively referred to in this Agreement as the “Parties” or individually as a “Party.”

RECITALS
WHEREAS, va rious cities within Riverside County and the County of Riverside entered into a Joint Powers Agreement on April 1, 1991, as amended from time to time, to create WRCOG (the “JPA”); and
WHEREAS, Member Agency is a signatory to the JPA; and
WHEREAS, Article VIII of the JPA permits any WRCOG member agency, when authorized by the Executive Committee, to execute an Implementation Agreement for the purpose of authorizing WRCOG to implement, manage and administer area -wide and regional programs in the interest of the local public welfare; and
WHEREAS, the JPA permits WRCOG, when authorized by an Implementation Agreement, to make and enter into such contracts, incur such debts and obligations, assess contributions from the members, and perform such other acts as are necessary to the accomplishment of the purposes of such agreement; and
WHEREAS, over the course of 2016 and 2017, WRCOG negotiated a template purchase and sale agreement, and other associated agreements, with Southern California Edison (“SCE”) to permit WRCOG’s member agencies to acquire streetlights from SCE; and WHEREAS, the Member Agency desires to acquire such streetlights from SCE and retrofit such lights with certain energy efficiency improvements; and WHEREAS, the Member Agency intends to enter into that Equipment Lease/Purchase Agreement dated April 10 , 2018 (as amended, the “Lease Agreement”) with Banc of America Leasing & Capital, LLC (together with its successors and assigns, “BALCAP”) in order to finance the acquisition, installation and retrofitting of streetlights within its jurisdiction; and WHEREAS, as a condition of such Lease Agreement, the Member Agency must properly maintain, repair and replace such streetlights during the term of the Lease Agreement; and WHEREAS, WRCOG and Member Agency believe that economies of scale can be achieved if maintenance, repair, retrofitting and replacement services of streetlights were provided

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to several of WRCOG’s member agencies under one or more agreements which would be administered by WRCOG; and
WHEREAS, WRCOG member agencies have the common power to enter into an agreement for the maintenance, repair, retrofitting and replacement of streetlights in their jurisdictions and administer such agreement; and
WHEREAS, WRCOG and the Member Agency desire to enter into this Agreement in order to authorize WRCOG to enter into one or more agreements with third party providers for the provision of maintenance, repair, retrofitting and replacement services of streetlights on behalf of Member Agency within the Member Agency’s jurisdiction and administer such agreements ; and

WHEREAS, the Executive Committee of WRCOG and the City Council of the Member Agency have each authorized WRCOG and the City Council, respectively, to enter into this Agreement; and

WHEREAS, WRCOG, the Member Agency, Wilmington Trust, National Association, a national banking association (together with any successor paying agent, the “Paying Agent”) , and BALCAP will enter into a Paying Agent Agreement dated April 10, 2018 (as in order to facilitate the orderly distribution of payments required under this Implementation Agreement and the Lease Agreement (as amended, “Paying Agent Agreement”); and

WHEREAS, the Member Agency, Wilmington Trust, National Association, a national banking association, as escrow agent, and BALCAP will enter into an Escrow and Account Control Agreement to fulfill the deposit requirements under the Lease Agreement (as amended, “Escrow Agreement”).

NOW, THEREFORE, the Parties hereby understand and agree as follows:

AGREEMENT

1. Maintenance, Repair, and Access

1.1 WRCOG shall enter into an agreement (the “Professional Services Agreement”) for the provision of retrofitting services and regular maintenance and repair service s for those streetlights listed in Exhibit A (the “Services”), attached hereto and incorporated herein located in Member Agency’s jurisdiction. Maintenance and repair activities shall consist of repair of electrical wiring and light fixtures, replacement of burned -out lamps, repair and replacement of damaged equipment caused by auto accidents and vandalism, and marking the location of underground electrical conduits for the Dig Alert: Underground Service Alert program, as needed. So long as the Lease Agreement is in effect and not later than three months prior to the termination of any such Professional Services Agreement, WRCOG shall either: (a) renew the Professional Services Agreement; or (b) enter into a Professional Services Agreement with a new vendor.

1.2 In addition, WRCOG shall enter into an agreement (the “Equipment Purchase Agreement”) for the purchase of all equipment associated with the Services.

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1.3 In addition to the Services, WRCOG shall enter into a future agreement (the “Re - lamping Services Agr eement”) to provide capital replacement services for such streetlighting, otherwise known as “Re -lamping Services.” Re -lamping Services may be provided under the Professional Services Agreement, through amendment to the Professional Services Agreement, or through a separate agreement.

1.4 WRCOG shall cause the Services to be performed to conduct activities on an as required basis. Non- emergency and emergency maintenance may be performed at Member Agency’s request, but will be subject to the provisions of Section 4 of this Agreement.

1.5 WRCOG shall provide streetlight system reviews and reports including a summary of system activities on an annual basis.

1.6 In order for the contractors to perform the Services and Re -lamping Services, Member Agency hereby grants to WRCOG a no-cost license and right to access the streetlights and adjacent Member Agency properties and rights -of-way for the sole purpose of performing the services under this Agreement. This license and right -of-access shall run concurrently with the Agreement. Notwithstanding the foregoing, WRCOG will require its contractors performing the Services and Re -lamping Services to follow each Member Agency’s encroachment and right -of- way access procedures. In complying with these procedures, Member Agency shall not charge the contractors a fee and will not unreasonably delay or deny the contractors access to the streetlights and adjacent Member Agency properties and rights-of-way.

1.7 Member Agency understands and agrees that WRCOG intends to retain one or more contractor (or contractors) for the performance of the Services and the Re -lamping Services.

WRCOG shall take all necessary steps to ensure Member Agency holds the right to enforce the terms of WRCOG’s agreement with said contractor (or contractors) as it pertains to the Services and the Re-lamping Services rendered in Member Agency’s jurisdiction. In retaining said contractor(s), WRCOG shall comply with all applicable laws, including any applicable public bidding requirements.

2. Member Agency Payments
The Member Agency shall make all payments in the amounts and at the times as required in the Paying Agent Agreement. Payments shall be made by the Member Agency to the fund established under the Paying Agent Agreement entitled “City of Murrieta Equipment Lease/Purchase Agreement, Account No. ___” (the “Collection Fund”) by wire transfer as follows:

2.1 Manufacturers Traders Trust Co., ABA #031100092, A/C #1001, A/C Name:

Corporate Trust.

2.2 The Member Agency shall pay all Rental Payments due under the Lease Agreement to the Paying Agent (for deposit into Collection Fund and further deposit into the Rental Payment Subaccount) at the times and in the amounts required in the Paying Agent Agreement, including Annex I thereto (and in any event no later than required under the Lease Agreement).

2.3 The Member Agency shall pay all fees, costs or expenses due and owing to the Paying Agent under the Paying Agent Agreement including in accordance with the column titled

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“Paying Agent Fee Subaccount” on Annex I attached thereto, together with any past due amounts due to the Paying Agent thereunder, to the Paying Agent for deposit into the Collection Fund and for further distribution as provided in the Paying Agent Agreement.

2.4 Member Agency shall make payments in an amount sufficient to pay the amount of the administrative fees due and payable to WRCOG under this Agreement at the times and in the amounts as required by the Paying Agent Agreement and in accordance with the col umn titled “Administrative Fee Subaccount” on Annex I thereto, together with any past due administrative fee amounts owing to WRCOG , to the Paying Agent for deposit into the Collection Fund and for further distribution as provided in the Paying Agent Agreement.

2.5 Member Agency shall make payments owing with respect to Services provided by WRCOG under Section 1.1 hereof, at the times and in the amounts as required by the Paying Agent Agreement and accordance with the column titled “Annual Maintenance Subaccount” on Annex I attached to the Paying Agent Agreement, plus any amounts due and unpaid with respect to Services performed, to the Paying Agent for deposit into the Collection Fund and for f urther distribution as provided in the Paying Agent Agreement.

2.6 The Member Agency shall make payments for Re-lamping Services to the Paying Agent at the times and in the amounts as required by the Paying Agent Agreement and accordance with the column titled “Re-lamping Reserve Subaccount” on Annex I attached to the Paying Agent Agreement, plus any amounts due and unpaid with respect to Re -lamping Services performed, to the Paying Agent for deposit into the Collection Fund and for further distribution as provided in the Paying Agent Agreement . In the event of a deficiency in the Re-lamping Reserve Subaccount to make payment on any of amounts due for fees and costs associated with the Re -lamping Services for the Member Agency, the Member Agency shall deposit w ith the Paying Agent for deposit into the Collection Fund and for further distribution as provided in the Paying Agent Agreement an amount equal to the deficiency in the Re-lamping Reserve Subaccount.

2.7 The Member Agency hereby grants WRCOG the authority to provide the Paying Agent with instructions on requisitions from the Administrative Fee Subaccount , the Annual Maintenance Subaccount and the Re-lamping Reserve Subaccount. WRCOG shall maintain records of payment relating to expenditures from such funds and subaccounts and make such records available to the Member Agency upon request.

2.8 The Member Agency and WRCOG acknowledges that if insufficient funds are appropriated to make payments pursuant to the Lease Agreement or any payments required pursuant to this Agreement, the Paying Agent shall distribute funds from the Collection Fund as follows:

First, deposit moneys into the Rental Payment Subaccount to exclusion of all the other subaccounts until there exists in the Rental Payment Subaccount funds sufficient to pay all Rental Payments then past due and owing plus an amount sufficient to pay all Rental Payments then due and owing plus an amount sufficient pay the sum of the Rental Payment Interest Portion plus the Rental Payment Principal Portion coming due on the next succeeding Payment Date as reflected on Annex I to the Paying Agent Agreement , plus any past due amounts and interest thereon, fees, costs, expenses and any other amounts due to Lessor under the Lease Agreement or any related agreement;

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Second, after all amounts required to be deposited into the Rental Payment Subaccount have been deposited in full, deposit moneys into the Paying Agent Fee Subaccount to the extent available;
Third, after all amounts required to be deposited into the Rental Payment Subaccount and the Paying Agent Fee Subaccount have been deposited in full, deposit moneys into the Administrative Fee Subaccount to the extent funds are available; Fourth, after all amounts required to be deposited into the Rental Payment Subaccount, the Paying Agent Fee Subaccount and the Administrative Fee Subaccount have been deposited in full, deposit moneys to the Annual Maintenance Subaccount to the extent available;
Fifth, after all amounts required to be deposited into the Rental Payment Subaccount, the Paying Agent Fee Subaccount, the Administrative Fee Subaccount and the Annual Maintenance Subaccount have been deposited in full, deposit amounts in the Re -lamping Reserve Subaccount to the extent available.

Each subaccount shall be as described in the Paying Agent Agreement.

2.9 Notwithstanding anything to the contrary herein, so long as Member Agency transmits the amounts due hereunder to the Paying Agent by the respective due dates, Member Agency’s obligation with respect to such due amounts shall be satisfied. Subject to the terms of the Lease Agreement, Member Agency shall not be liable in any way for failure or delay by the Paying Agent to transfer such amounts to the proper recipients.

3. Initial Cut-Over Process and Installation of LED Lights Upon transfer of the streetlights to the Member Agency, pursuant to the Pole Agreement, WRCOG shall coordinate and manage the cut -over process involving the removal of SCE tags and replacement with new tags for tracking purposes. WRCOG shall also coordinate and manage the retrofitting of the streetlights identified in Section 1 of this Agreement with Member Agency- approved LED luminaires. The costs associated with this process shall be paid by Member Agency as a Transition Cost or Severance Cost (each as defined in the Pole Agreement, as defined in the Lease Agreement) through disbursements (approved by BALCAP) from the escrow account established in accordance with the Escrow Agreement.

4. Emergency Maintenance
WRCOG shall perform, only at the express request of the Member Agency, emergency maintenance activities for the streetlights identified in Section 1 of this Agreement. Emergency maintenance performed under the Services Agreement pursuant to this Section shall be charged to Member Agency directly on a reasonable time and materials basis. When emergency maintenance services are provided hereunder, WRCOG shall submit to Member Agency a monthly invoice by the 15th of the month immediately following the month in which the services were performed.

Member Agency shall then pay said invoice in full within thirty (30) days following its receipt of the invoice.

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5. Term, Termination, and Default

5.1 This Agreement shall commence on the Effective Date set forth above a nd continue in perpetuity unless and until otherwise modified or terminated by any Party under the terms of this Agreement.

5.2 Upon an event of non- appropriation pursuant to Section 5.3 hereof or written notice of not less than one fiscal year , either Party may terminate this Agreement without cause.

Termination shall not relieve the Party of its proportionate share of any debts or other liabilities incurred under this Agreement prior to the effective date of the Party’s notice of termination. Any termination of this Agreement shall be subject to Section 9.02 of the Lease Agreement.

5.3 Member Agency’s obligations to provide payments under this Agreement is subject to Member Agency’s annual budget process and the making of necessary budget appropriations in the fiscal year in which Member Agency would pay the obligations. In the event the governing body of the Member Agency does not make a budgetary appropriation for the payments under this Agreement for an upcoming fiscal year , Member Agency shall notify WR COG within 5 days of such decision to not appropriate , and this Agreement shall be terminated as of the commencement on such upcoming fiscal year.

5.4 So long as this Agreement is not terminated pursuant to Section 5.3 hereof, i f any payment due from Member Agency under this Agreement is not received by WRCOG within 10 days of the due date, the amount shall bear interest at 5.00% annually. In addition, Member Agency shall pay to WRCOG an additional sum of five percent (5.00%) of the overdue payment as a late charge for any amounts not in dispute . The Parties agree that this late charge represents a fair and reasonable estimate of the administrative costs that WRCOG will incur by reason of a late payment by Member Agency. Acceptance of any late payment charge shall not constitute a waiver from exercising any of the other rights and remedies available to WRCOG under this Agreement, at law or in equity, including, but not limited to, any interest charges imposed herein. Furthermore, if Member Agency has not made any payment due under this Agreement within thirty (30) days following the due date, WRCOG may terminate this Agreement for cause. Termination of this Agreement by WRCOG for cause shall not relieve Member Agency of its proportionate share of any debts or other liabilities incurred under this Agreement prior to the effective date of the WRCOG’s notice of termination.

6. Environmental Review
WRCOG shall be the lead agency under the California Environmental Quality Act for any environmental review that may be required under this Agreement.

7. Cooperative Effort
Member Agency shall cooperate with WRCOG by providing information and other assistance in order for WRCOG to meet its obligations hereunder.

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8. Miscellaneous Provisions

8.1 Notice. Any and all communications and/or notices in connection with this Agreement shall be either hand- delivered or sent by United States first class mail, postage prepaid, and addressed as follows:

WRCOG:

Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor. MS1032
Riverside, CA 92501-3609
Attn: Executive Director

MEMBER AGENCY:

City of Murrieta
1 Town Square
Murrieta, CA 92562
Attn: City Manager

8.2 Entire Agreement. This Agreement, together with the JPA and WRCOG By- laws, constitutes the entire agreement among the Parties. This Agreement supersedes any and all other agreements, either oral or in writing, among the Parties with respect to the subject matter hereof and contains all of the covenants and agreements among them with respect to said matters, and each Party acknowledges that no representation, inducement, promise of agreement, oral or otherwise, has been made by the other Party or anyone acting on behalf of the other Party that is not embodied herein.

8.3 Successors and Assigns . This Agreement and each of its covenants and conditions shall be binding on and shall inure to the benefit of the Parties and their respective successors and assigns. A Party may only assign or transfer its rights and obligations under this Agreement with prior written approval of the other Party, which approval shall not be unreasonably withheld.

8.4 Attorney’s Fees. If any action at law or equity, including any action for declaratory relief is brought to enforce or interpret the provisions of this Agreement, each Party to the litigation shall bear its own attorney’s fees and costs.

8.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, as applicable. Venue shall be in Riverside County.

8.6 No Third Party Beneficiaries . Th is Agreement shall not create any right or interest in the public, or any member thereof, as a third party beneficiary hereof, nor shall it authorize anyone not a Party to this Agreement to maintain a suit for personal injuries or property damages under the provisions of this Agreement. The duties, obligations, and responsibilities of the Parties to this Agreement with respect to third party beneficiaries shall remain as imposed under existing state and federal law.

8. 7 Severability. In the event one or more of the provisions contained in this Agreement is held invalid, illegal or unenforceable by any court of competent jurisdiction, such portion shall be deemed severed from this Agreement and the remaining parts of this Agreement shall remain in full force and effect as though such invalid, illegal, or unenforceable portion had never been a part of this Agreement.

8.8 Headings. The paragraph headings used in this Agreement are for the convenience of the Parties and are not intended to be used as an aid to interpretation.

8.9 Amendment. This Agreement may be modified or amended by the Parties at any time. Such modifications or amendments must be mutually agreed upon and executed in writing by both Parties. Verbal modifications or amendments to this Agreement shall be of no effect. Any amendment of this Agreement shall be subject to Section 9.02 of the Lease Agreement.

IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Agreement to be in effect as of the date last signed below.

WRCOG
Western Riverside Council of Governments
By:

Executive Director
Date:
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Member Agency
City of Murrieta
By:

Kim Summers, City Manager
Date:

ATTEST:

By:

City Clerk
APPROVED AS TO FORM:

By:

City Attorney

8.8 Headings. The paragraph headings used in this Agreement are for the convenience of the Parties and are not intended to be used as an aid to interpretation.

IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Agreement to be in effect as of the date last signed below.

WRCOG
Western Riverside Council of Governments
By:

Executive Director
Date:

APPROVED AS TO FORM:

By:

General Counsel
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Member Agency
City of Murrieta
By~&-
Kim Summers, City Manager
Date:

ATTEST:

By: ~llt~J.,
., City Clerk
APPROVED AS TO FORM:

By: ~---
Ci~~

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EXHIBIT A

STREETLIGHTS

[ATTACHED BEHIND THIS PAGE]

EXHIBIT A

TO IMPLEMENTATION AGREEMENT

See Exhibit A
to Equipment Lease/Purchase
Agreement

PLACEHOLDER
[PLACEHOLDER] : (b)Equipment Purchase Agreement between WRCOG and Contractor (EPA)

PLACEHOLDER
[PLACEHOLDER] : (i) Appendix # 7 to Equipment Purchase Agreement 1 AMENDED AND RESTATED

WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS

PROFESSIONAL SERVICES AGREEMENT

1. PARTIES AND DATE.

This Amended and Restated Agreement is made and entered into this 27 day of March, 2018 (“Effective Date”), by and between the Western Riverside Council of Governments, a California public agency (“WRCOG”) and SIEMENS INDUSTRY INC., INTELLIGENT TRAFFIC SYSTEMS (“Consultant”). WRCOG and Consultant are sometimes individually referred to as “Party” and collectively as “Parties.”

2. DEFINITIONS, INCORPORATED DOCUMENTS, AND RECITALS.

2.1 Original Agreement
On or about December 18 , 2017, the Parties entered into that c ertain Professional Services Agreement for professional services for the Project (as defined herein) (“Original Agreement”). Parties now desire to amend and restate the Original Agreement to include additional language requested by the lender to the Member Agencies (as defined herein) consistent with that Equipment Lease/Purchase Agre ement entered into between each Member Agency and Banc of America Leasing & Capital, LLC (together with its successors and assigns, “Lessor”) in order to finance the acquisition, installation and retrofitting of streetlights within the Member Agency’s jurisdiction (as amended, the “Lease Agreement”) . The Parties expressly hereby agree that the Lease Agreement is not being incorporated into this Agreement and shall not be deemed a part of this Agreement.

2.2 Member Agency.
“Member Agency” means any and all member agencies participating in WRCOG’s street light program in accordance with an Implementation Agreement. The following local agencies are Member Agencies for the purposes of this Agreement:
• City of Eastvale
• City of Hemet
• Jurupa Community
Services District
• City of Lake Elsinore
• City of Menifee
• City of Moreno Valley
• City of Murrieta
• City of Perris
• City of San Jacinto
• City of Temecula
• City of Wildomar

2.3 Incorporated Documents.

2.3.1 Request for Proposal. The Request for Proposal No. 17-04 (“RFP”) issued by WRCOG on March 10, 2017 and the Consultant’s response to the RFP dated May 11, 2017 are incorporated herein by this reference.
2 2.3.2 Appendices and Exhibits . Each Member Agency shall execute its own Appendix, which shall cover the following for that Member Agency: Scope of Services (Exhibit A), Schedule of Services (Exhibit B), and Compensation (Exhibit C). The following Appendices, including their Exhibits, are attached hereto and incorporated herein by this reference:
• Appendix 1 – City of Eastvale

• Appendix 2 – City of Hemet

• Appendix 3 – Jurupa Community Services District

• Appendix 4 – City of Lake Elsinore

• Appendix 5 – City of Menifee

• Appendix 6 – City of Moreno Valley

• Appendix 7 – City of Murrieta

• Appendix 8 – City of Perris

• Appendix 9 – City of San Jacinto

• Appendix 10 – City of Temecula

• Appendix 11 – City of Wildomar

2.4 Consultant.

Consultant desires to perform and assume responsibility for the provision of certain professional services required by WRCOG and its Member Agencies on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing LED street light installation and ongoing operations and maintenance of street light systems, is licensed in the State of California, and is familiar with the plans of WRCOG and its Member Agencies.

2.5 Project.

WRCOG desires to engage Consultant to render such professional servic es for the installation of LED street lights and the ongoing operations and maintenance of the street light systems for Member Agencies. (“Project”) as set forth in this Agreement and the RFP.

3. TERMS.

3.1 Scope of Services and Term.
3 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to WRCOG and the applicable Member Agencies all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately perform LED street light installation and ongoing operations and maintenance of street light systems necessary for the Project (“Services”). The Services are more particularly described in the RFP and in Exhibit “A” to each Appendix attached hereto and incorporated herein by reference, and which are stated in the proposal to WRCOG and approved by WRCOG’s Executive Committee. All Services shall be subject to, and performed in accordance with, this Agreement, the appendices and 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 the Effective Date to December 1, 2022, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. WRCOG shall have the option to extend the term of this Agreement for two (2) additional one (1) year periods (“Option Term”) by notifying Consultant in writing prior to the end of the term of this Agreement, or any then- current Option Term, of its election to so exercise its option. The Option Term may be exercised by WRCOG on behalf of all or any number of Member Agencies, subject to prior written approval from the relevant Member Agency with respect to the extension of its respective Appendix . Compensation for work during any Option Term shall be at the rates set forth in Exhibit “C”, but otherwise all other terms and obligations of this Agreement shall continue to apply during any Option Term.

3.1.3 Assignability of Agreement . WRCOG reserves the right to assign this Agreement to other entities , subject to prior written approval from the relevant Member Agency with respect to an assignment of its respective Appendix . Assignment(s) will be subject to the same terms and conditions included in this Agreement. Other entities shall negotiate the pricing for the Services and supplies with the Consultant and include necessary provisions for management of their specific projects. WRCOG shall have no responsibility for the Consultant’s performance under any assignments.

3.2 Responsibilities of Consultant.

3.2.1 Control and Payment of Subordinates; Independent Contractor . The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. WRCOG retains Consultant on an independent contractor basis and not as an employee. Consultant retai ns 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 Consultant shall also not be employees of WRCOG or any Member Agency and shall at all times be under Consultant’s exclusive direction and control. Consultant 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. Consul tant 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.
4 3.2.2 Schedule of Services. Consultant shall perform the Services for WRCOG and the applicable Member Agencies expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit “B” to each Appendix at tached hereto and incorporated herein by reference. Consultant understands and agrees that in the event that the schedule for delivery of Services to any Member Agency, as identified in Exhibit “B” to any Appendix, is delayed, for any reason whatsoever including through the fault of WRCOG or the Member Agency, the delay shall not be used as a reason for delay on the part of the Contractor in meeting the schedule for delivery of Services to any other Member Agency.

Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant’s conformance with the Schedule, WRCOG and the applicable Member Agency shall respond to Consultant’s submittals in a timely manner. Upon request of WRCOG or any Member Agency, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services.

3.2.3 Conformance to Applicable Requirements . All work prepared by Consultant shall be subject to the approval of WRCOG and the applicable Member Agency.

3.2.4 Substitution of Key Personnel . Consultant has represented to WRCOG that certain key personnel will perform and coordinate the Services under this Agreement.

Should one or more o f such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of WRCOG. In the event that WRCOG and Consultant cannot agree as to the substitution of key personnel, WRCOG 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 WRCOG, or who are determined by the WRCOG 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 Consultant at the request of the WRCOG. The key personnel for performance of this Agreement are as follows: Alex Valenti, Bryan B erlin, Candace Gallaher, Michael Hutchens and Steven Teal.

3.2.5 WRCOG’s Representative. WRCOG hereby designates Rick Bishop, or his or her designee, to act as its representative for the performance of this Agreement (“WRCOG’s Representative”). WRCOG’s Representative shall have the power to act on behalf of WRCOG for all purposes under this Contract. Consultant shall not accept direction or orders from any person other than WRCOG’s Representative or his or her designee.

3.2.6 Consultant’s Representative. Consultant hereby designates Steven Teal , or his or her designee, to act as its representative for the performance of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant’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. 5 3.2.7 Coordination of Services . Consultant agrees to work closely with WRCOG staff in the performance of Services and shall be available to WRCOG’s staff, consultants and other staff at all reasonable times.

3.2.8 Standard of Care; Performance of Employees . Consultant 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. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to per form the Services, 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, Consultant shall perform, at its own cost and expense and without reimbursement from WRCOG or any Member Agency, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub- consultants who is determined by WRCOG or the applicable Member Agency to be 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 Servi ces in a manner acceptable to WRCOG or the applicable Member Agency, shall be promptly removed from the Project by the Consultant and shall not be re -employed to perform any of the Services or to work on the Project.

3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to W RCOG, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold WRCOG, its Member Agencies, and WRCOG’s and the Member Agencies’ officials, directors, officers, employees and agents free and harmle ss, pursuant to the 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.

3.2.10 Insurance.

3.2.10.1 Time for Compliance . Consultant shall not commence the Services under this Agreement until it has provided evidence satisfactory to WRCOG that it has secured all insurance required under this section, in a form and with insurance companies acceptable to WRCOG. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to WRCOG that the subcontractor has secured all insurance required under this section.

3.2.10.2 Minimum Requirements. Consultant shall, at its expens e, procure and maintain for the duration of the Agreement insurance against claims for injuries to 6 persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, em ployees or subcontractors.

Consultant 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. Coverage shall be at least as broad as the latest version of the following: (1) General Liability : Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001 or exact equivalent); (2) Automobile Liability: Insurance Services Office Business Auto Coverage (form CA 0001, code 1 (any auto) or exact equivalent); and (3) Workers’ Compensation and Employer’s Liability :

Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
(B) Minimum Limits of Insurance . Consultant shall maintain limits no less than: (1) General Liability: $5,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $5,000,000 per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $5,000,000 per accident for bodily injury or disease.

3.2.10.3 Professional Liability. Consultant shall procure and maintain, and require its sub- consultants to procure and maintain, for a period of five (5) years following completion of the Services, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less than $2,000,000 per claim. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically des igned to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend.

3.2.10.4 Insurance Endorsements . The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by WRCOG to add the following provisions to the insurance policies:
(A) General Liability.
(i) Commercial General Liability Insurance must
include coverage for (1) Bodily Injury and Property Damage; (2) Personal Injury/Advertising Injury; (3) Premises/Operations Liability; (4) Product s/Completed Operations Liability; (5) Aggregate Limits that Apply per Project; (6) Explosion, Collapse and Underground (UCX) exclusion deleted; (7) Contractual Liability with respect to this Agreement; (8) Broad Form Property Damage; and (9) Independent Consultants Coverage. 7 (ii) The policy shall contain no endorsements or
provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary t o the Agreement.
(iii) The policy shall give WRCOG, its directors,
officials, officers, employees, and agents insured status using ISO endorsement forms 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (iv) The additional ins ured coverage under the policy
shall be “primary and non- contributory” and will not seek contribution from WRCOG’s or any Member Agency’s insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage.
(B) Automobile Liability.
(i) The automobile liability policy shall be endorsed to state that: (1) WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, employees, agents and volunteers shall be cove red as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance coverage shall be primary insurance as respects WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or self -insurance maintained by WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way. (C) Workers’ Compensation and Employers Liability
Coverage.
(i) Consultant certifies that he/she is aware of the
provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) The insurer shall agree to wai ve all rights of
subrogation against WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Consultant. (D) All Coverages.
(i) Defense costs shall be payable in addition to the
limits set forth hereunder.
8 (ii) Requirements of specific coverage or limits
contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. (iii) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non- contributory basis for the benefit of WRCOG and each Member Agency (if agreed to in a written contract or agreement) before WRCOG’s or any Member Agency’s own insurance or self-insurance shall be called upon to protect it as a named insured.

The umbrella/excess policy shall be provided on a “following form” basis with coverage at least as broad as provided on the underlying policy(ies).
(iv) Consultant s hall provide WRCOG at least thirty
(30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non- payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to WRCOG at least ten (10) days prior to the effective date of cancellation or expiration. (v) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement. (vi) The foregoing requirements as to the types and
limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by WRCOG, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(vii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, WRCOG and its Member Agencies have the right but not the duty to obtain the insurance they deems necessary and any premium paid by WRCOG and its Member Agencies will be promptly reimbursed by Consultant or WRCOG (and the applicable Member Agency) will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, WRCOG may cancel this Agreement. WRCOG may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (viii) Neither WRCOG, its Member Agencies, nor
WRCOG’s or its Member Agencies’ directors, officials, officers, employees or agents shall be personally responsible for any liability arising under or by virtue of this Agreement. 9 3.2.10.5 Separation of Insureds; No Special Limitations . All insurance required by this S ection shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, employees, agents and volunteers.

3.2.10.6 Deductibles and Self -Insurance Retentions . Any deductibles or self-insured retentions must be declared to and approved by WRCOG. Consultant shall guarantee that, at the option of WRCOG, either: (1) the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, employees, agents and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.

3.2.10.7 Acceptability of Insurers . Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VI I, licensed to do business in California, and satisfactory to WRCOG and each Member Agency.

3.2.10.8 Verification of Coverage . Consultant shall furnish WRCOG and each Member Agency with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to WRCOG. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by WRCOG if requested. All certificates and endorsements must be received and approved by WRCOG before work commences. WRCOG reserves the right to require complete, certified copies of all required insurance policies, at any time.

3.2.10.9 Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to WRCOG that they have secured all insurance required under this section. Policies of commer cial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, employees, agents and volunteers as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, WRCOG may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.

3.2.11 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant 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) a dequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, 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 10 injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.

3.2.12 Surety Bonds . Consultant shall provide each Member Agency with a payment and performance bond (“Surety Bond”) executed by a surety company authorized to do business in the State, having a financial strength rating by A.M. Best Company of “A -” or better, and otherwise satisfactory to the Member Agency and naming the Member Agency as a co - obligee in a sum equal to the entire amount to become payable under the Appendix to this Agreement applicable to the Member Agency. Each bond shall be conditioned on the completion of the Services for that Member Agency and upon payment of all claims of subconsultants and suppliers. Consultant shall cause the surety company to add WRCOG and Banc of America Leasing & Capital LLC as a co- obligee on each Surety Bond, and shall deliver a certified copy of each Surety Bond to WRCOG and Banc of America Leasing & Capital LLC promptly upon receipt thereof by Consultant. Any proceeds from a Surety Bond shall be applied in accordance with such Surety Bond to the payment and perfor mance of the Consultant’s obligations in accordance with this Agreement and all Appendices and, if for whatever reason such proceeds are not so applied, then first to amounts due Lessor (as defined in the Lease Agreement) pursuant to Section 4.05 and 7.04 of the Lease Agreement , and any remaining amounts shall be payable to Lessee (as defined in the Lease Agreement).

3.3 Fees and Payments.

3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rende red under this Agreement at the rates set forth in Exhibit “C” to each Appendix attached hereto and incorporated herein by reference. The total compensation shall not exceed Five Million Nine Hundred Thirteen Thousand Seventy- Three Dollars ($5,913,073) over a five year contract period without written approval of WRCOG’s Executive Director and the applicable Member Agency. 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. Consultant shall submit to WRCOG a monthly itemized statement which indicates work completed and hours of Services rendered by Consultant. The statement shall describe the amount of Services and suppl ies provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the statement. At a minimum, Consultant shall provide a statement with sufficient detail to enable WRCOG or the Member Agency to make payment to Consultant from the appropriate account in accordance with the Paying Agent Agreement (as defined in the Lease Agreement) and/or Escrow Agreement (as defined in the Lease Agreement), as applicable (i.e., retrofit specific cost s to be identified separately from other Services under this Agreement).

WRCOG shall, within 45 days of receiving such statement, review the statement and pay all approved charges thereon.

3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by WRCOG.

3.3.4 Extra Work. At any time during the term of this Agreement, WRCOG may request that Consultant perform Extra Work. As used herein, “Extra Work” means any 11 work which is determined by WRCOG t o 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. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from WRCOG’s Representative.

3.3.5 Prevailing Wages. Consultant is aware of the requirements of California Labor Code Sections 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et 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. Since the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. WRCOG shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant 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 Consultant’s principal place of business and at the project site. Consultant shall defend, indemnify and hold the WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ 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.

3.4 Accounting Records.

3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of WRCOG or any applicable Member Agency during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant 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. WRCOG may , subject to prior written approval from the relevant Member Agency and by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. In addition, each Member Agency may, by written notice to WRCOG and Consultant, terminate its Appendix to this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to WRCOG or the applicable Member Agency, an d Consultant shall be 12 entitled to no further compensation. Consultant may not terminate this Agreement except for cause.

3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, WRCOG may require Consultant to provide all fini shed or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such documents and other information within fifteen (15) days of the request.

3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, WRCOG and its Member Agencies 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:

Consultant: 9225 Bee Cave Road, Building B, Suite 101
Austin, TX 78733
Attn: Steven Teal
Facsimile: (512) 421-6617

WRCOG: Western Riverside Council of Governments
4080 Lemon Street, 3rd Floor, MS 1032
Riverside, CA 92501
Attn: Rick Bishop
Facsimile: (951) 787-7991

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 Inspection of Installation Data and Maintenance Records.

3.5.3.1 During the course of this Agreement, and upon reasonable advance notice and during normal business hours, WRCOG and its Member Agencies may inspect and examine the installation data and maintenance records specifically created or collected by Consultant under this Agreement. Upon termination or expiration of this Agreement, Consultant will provide to WRCOG and its Member Agencies the installation data and maintenance records specifically created or collected by Consultant under this Agreement. The install ation data and maintenance records shall include all final installation data, customer service reports and inquiry activity, and maintenance records, but shall not be deemed to include any proprietary, confidential, or protected information, programs, platforms, and/or materials of Consultant.

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 Consultant in 13 connection with the performance of this Agreement shall be held confidential by Consultant.

Such materials shall not, without the prior written consent of WRCOG and the relevant Member Agency, be used by Consultant 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 Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use WRCOG’s or any Member Agency’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 WRCOG or the applicable Member Agency.

3.5.3.3 Infringement Indemnification. Consultant shall defend, indemnify and hold WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by WRCOG or any Member Agency of the Documents & Data, including any method, process, product, or concept specified or depicted.

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. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and re cover from the losing party reasonable attorney’s fees and all other costs of such action.

3.5.6 Indemnification. Consultant shall defend, indemnify and hold the WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ officials, officers, consultants, 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 acts, omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, i ncluding without limitation the payment of all consequential damages and attorneys’ fees and other related costs and expenses. Consultant shall defend, at Consultant’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 WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, consultants, employees, agents or volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, consultants, employees, agents or volunteers, in any such suit, action or other legal proceeding. Consultant shal l reimburse WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ directors, officials, officers, consultants, employees, agents and/or volunteers, for any and all legal expenses and costs, including reasonable attorneys fees, incurred by each of them in connection therewith or in 14 enforcing the indemnity herein provided. Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by WRCOG, its Member Agencies, and WRCOG’s and its Member Agencies’ director s, officials, officers, consultants, employees, agents or volunteers. This section shall survive any expiration or termination of this Agreement.

Notwithstanding the foregoing, to the extent Consultant’s Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.

3.5.7 Entire Agreement. This Agreeme nt contains the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties.

3.5.8 Governing Law . This Agreement shall be governed by the laws of the State of California. Venue shall be in Riverside County.

3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.

3.5.10 Right to Employ Other Consultants . WRCOG re serves the right for itself and its Member Agencies to employ other consultants in connection with this Project.

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 . C onsultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of WRCOG , subject to prior written approval from each applicable Member Agency to the exte nt such assignment, hypothecation or transfer could impact such Member Agency’s Appendix. 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 Consultant include all personnel, employees, agents, and subcontractors of Consultant, except as otherwise specified in this Agreement. All references to WRCOG include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. All references to Member Agencies include their electe d 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.
15 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 , subject to prior written approval from each applicable Member Agency to the extent such supplement, modification, or amendment impacts such Member Agency’s Appendix.

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 pa rty beneficiaries of any right or obligation assumed by the Parties with the exception of the Member Agencies, which are expressly considered to be third party beneficiaries and are entitled to enforce any and all rights and remedies held by the Member Agency itself or by WRCOG under this Agreement.

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 . Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Cons ultant 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 Consultant, 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, WRCOG shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of WRCOG, during the term of his or her service with WRCOG, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

3.5.19 Equal Opportunity Employment . Consultant represents that it is an equal opportunity employer and it s hall 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 t o initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of any WRCOG’s 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, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require ever y employer to be insured against liability for Workers’ 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. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party 16 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 signed in counterparts, each of which shall constitute an original.

3.6 Subcontracting.

3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of WRCOG , subject to prior written approval from the applicable Member Agency to the extent such work relates to such Member A gency’s Appendix. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.

[SIGNATURES ON FOLLOWING PAGE]

SIGNATURE
PAGE
TO

AMENDED
AND

RESTATED

WESTERN

RIVERSIDE

COUNCIL
OF

GOVERNMENTS

PROFESSIONAL

SERVICES

AGREEMENT
IN

WITNESS

WHEREOF,
the
Parties
hereby
have
made
and
executed
this
Amended
and
Restated
Agreement
as
of
the
date
first
written above.

WESTERN

RIVERSIDE

COUNCIL
OF

GOVERNMENTS
By
:
~
f
Ri~
'{
Executive
Director

SIEMENS

INDUSTRY
INC.,

INTELLIGENT

TRAFFIC

SYSTEMS
By: Title: ATTEST: By: Its:
* A
corporation
requires
the
signatures
of
two
corporate
officers.

If
the
above
persons
are
not
the
intended
signators,
evidence
of
signature
authority
shall
be
provided
to
WRCOG
.
[Signature
Page
to
A&R
Professional
Services
Agreement]

SIGNATURE PAGE
TO

AMENDED AND RESTATED

WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS

PROFESSIONAL SERVICES AGREEMENT
IN WITNESS WHEREOF, the Parties hereby have made and executed this Amended and Restated Agreement as of the date fast written above.

WESTERN RIVERSIDE COUNCIL

OF GOVERNMENTS
By:

Rick Bishop
Executive Direclor
APPROVED AS TO FORM:

By:

General Counsel
Best Best & Krieger LLP
SIEMENS INDUSTRY INC.,

INTELLIGEN' TRAFFIC SYSTEMS
By:

Title: Marcus Welz. CEO
ATTEST:

By: ::C· ,( 2•(' /✓---.;.._-
/ 7 r7
Title: David Buchfuehrer, CFO
"" A coiporation requires the signatures of two corporate officers.

One signature shall be that of the chairman of board, the president or any vice president and the second signature (on the attest line) shall be that of the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation.
lfthe above persons are not the intended signators, evidence of signature authority shall be provided to WRCOG. 17 APPENDIX#? City
of
Murrieta
This
Appendix
#7
to
Agreement
("Appendix")
by
and
between
WRCOG,
Consultant,
and
the
City
of
Murrieta
("Member
Agency")
is
made
and
entered
into
this
1st
day
of
April,
2018.

WRCOG,
Consultant,
and
Member
Agency
are
referred
to
herein
as
Parties.

1. Defined
Terms.

All
terms
used
herein
have
the
meanings
ascribed
to
them
in
the
Professional
Services
Agreement
between
WRCOG
and
Consultant
dated
March
27, 2018
with
the
exception
of
the
term
Member
Agency,
which
for
the
purposes
of
this
Appendix
#7
will
refer
to
the
City
of
Murrieta
only.

2. Agreement
Incorporated.

The
terms
and
provisions
of
the
Agreement
are
hereby
incorporated
into
this
Appendix.

3. Member
Agency
Exhibits.

The
Parties
hereby
agree
that
the
Scope
of
Services,
Schedule
of
Services,
and
Compensation
for
the
Project
as
it
relates
to
Member
Agency
are
defined
specifically
in
Exhibits
A,
B,
and
C,
attached
hereto
and
incorporated
herein
by
this
reference. IN

WITNESS

WHEREOF,
the
Parties
hereby
have
made
and
executed
this
Appendix
as
of
the
date
first
written
above.

WRCOG By:
__,.__
______
_
_____
_
Rick
Bishop,
Execut
e Director
APPRO
Consultant By:
--
---
---------
Marcus
Welz,
CEO
By:
--------------David
Buchfuehrer,
CFO
Member
Agency
By
:-----------
-
-
Kim
Summers,
City
Manager
ATTEST: By:
--------------City
Clerk

APPROVED
AS
TO
FORM:

By:
-----------
---
City
Attorney
Appendix
7 -
City
of
Murrieta
20323.00024
\30695872
.l
APPENDIX#7
City of Murrieta
This Appendix #7 to Agreement ("Appendix") by and beLween WRCOG, Consultant, and the City of Murrieta ("Member Agency") is made and entered into this 1st day of April, 2018.

WRCOG, Consultant, and Member Agency are referred to herein as Parties.

1. Defined Terms. All terms used herein have the meanings ascribed to them in the Professional Services Agreement between WRCOG and Consultant dated March 27, 2018 with the exception of the term Member Agency, which for the purposes of this Appendix #7 will refer to the City of Murrieta only.

2. Agreement Incorporated. The terms and provisions of the Agreement arc hereby incorporated into this Appendix.

3. Member Agency Exhibits. The Parties hereby agree that the Scope of Services, Schedule of Services, and Compensation for the Project as it relates to Member Agency arc defined specifically in Exhibits A, B, and C, attached hereto and incorporated herein by this reference.

IN WITNESS WHEREOF, the Parties hereby have made and executed this Appendix as of the date first written above.

WRCOG
By:------------
Rick Bishop, Executive Director
APPROVED AS TO FORM:

By:--------------
General Counsel
Consultant
By: ----'lt----------- M arc us Welz, CEO
By: -?· ,r ';: ,_y't. ~~-
,.,J.Ya'.vid Buc.,bfuehrer, CFO
Member Agency
By: ----------Kim Summers, City Manager
ATTEST:

By: --------------City Clerk
APPROVED AS TO FORM:

By:_
City Attorney
Appendix 7 -City of Murrieta
20323.00024\30695872. I
APPENDIX#7
City of Murrieta
This Appendix #7 to Agreement ("Appendix") by and between WRCOG, Consultant, and the City of Murrieta ("Member Agency") is made and entered into this 1st day of April, 2018.

WRCOG, Consultant, and Member Agency are referred to herein as Parties.

1. Defined Terms. All terms used herein have the meanings ascribed to them in the Professional Services Agreement between WRCOG and Consultant dated March 27, 2018 with the exception of the tenn Member Agency, which for the purposes of this Appendix #7 will refer to the City of Murrieta only.

2. Agreement Incorporated. The terms and provisions of the Agreement are hereby incorporated into this Appendix.

3. Member Agency Exhibits. The Parties hereby agree that the Scope of Services, Schedule of Services, and Compensation for the Project as it relates to Member Agency are defined specifically in Exhibits A, B, and C, attached hereto and incorporated herein by this reference.

IN WITNESS WHEREOF, the Parties hereby have made and executed this Appendix as of the date first written above.

WRCOG
By: -------------- Rick Bishop, Executive Director
APPROVED AS TO FORM:

By:------------
General Counsel
Consultant
By: --------------Marcus Welz, CEO
By:------------
David Buchfuehrer, CFO
Member Agency
~&=: Kim Summers, City Manage!.'
ATTEST:

APPROVED AS TO FORM:

By:~£2 :;::;y
Appendix 7 -City of Murrieta
20323.00024\30695872. I
Appendix 7 – City of Murrieta – Exhibit A
20323.00024\30695872.1
EXHIBIT “A”

SCOPE OF SERVICES
Siemens Intelligent Traffic System proposes the following scope of work for services related to the street lights located in the Western Riverside Council of Governments (WRCOG) subregion.

These services include the turnkey services related to installation of LED street lights and the ongoing operations and maintenance of the street light systems for member jurisdictions. These services are extended to the street lights currently owned by the member jurisdictions, th ose to be purchased from Southern California Edison and any additional assets that are installed within the contract period. Siemens extends this contract for 5 years for date of execution, with the option for additional extension if agreed upon by all p arties. All services included in the Scope of Services will be billed per the rates outlined in Exhibit C.

Project Development
The Project Development phase includes several key elements that must take place for member jurisdictions to effectively acquire street lights from Southern California Edison (SCE), efficiently convert to LED technology and begin operating and maintaining the system.

1. SCE Coordination- Facilitate the “Cut-Over” Process with SCE Siemens will assist WRCOG and member jurisdictions in c ommunication and scheduling with Southern California Edison representatives during the acquisition phase. Siemens will coordinate the development of an agreed upon schedule and geographic plan for the associated field work and cutover of assets from SCE to member jurisdictions. Specific scope includes:
• Participation in SCE calls
• Develop cut over schedule and work flow with SCE subcontractors • Provide review of “fielding” data from SCE and associated subcontractors • Update Street light database to include new street lights previously not included in valuations and other associated data corrections/modification/additions. • Track billing adjustments from SCE as street lights are acquired • Support WRCOG and its member jurisdictions with the Inventory, Inspection and Transition Activities as identified in the City’s Purchase and Sales Agreement (Agreement) with SCE

2. Street light pole tagging and field verification
Siemens will install street light pole tags during the installation of the LED street light fixture. The tags will either be furnished by WRCOG, member jurisdiction or by Siemens. The associated pole tags will be designed and approved with jurisdiction/regional street light numbering sequence by WRCOG and/or jurisdiction staff. Siemens will install pole tags and update the web based WRCOG database of information for each pole, referencing the associated pole number.

Siemens will verify street light asset attributes during the LED installation utilizing the web based WRCOG database. The information to be reaff irmed in the database upon conversion shall Appendix 7 – City of Murrieta – Exhibit A
20323.00024\30695872.1
include condition of asset, GPS coordinates for each asset, pole type, pole height, arm length, luminaire type, wattage, lamp type, voltage, general pole condition, service feed type: overhead or underground, city and SCE pole structure number (in the case the numbers are different) and description of point of demarcation between jurisdiction and SCE facilities.

3. Procurement Support- LED Material Selection and Design (optional) Siemens can provide support in the p rocess of selecting and procuring fixtures for the project and provide recommendations to the City for final approval. This service includes identifying material vendors, soliciting proposals from vendors and performing a detailed evaluation of material proposals submitted.

Fixture selection is typically based on a variety of factors that ultimately will lead to identification of the best solution for the customer. Some of the factors considered are:
• Fixture efficiency
• Demonstrated durability
• Material cost
• Availability/production lead times
• Design functionality
• SCE rebate eligibility
• Life-cycle cost
Concurrent with the evaluation of fixture alternatives, Siemens can provide additional design support. This includes evaluating basic standard lighting configurations which exist on various street types throughout a jurisdiction. This includes reviewing current existing light levels, performing photometric analysis and recommended replacement fixture standards to apply throughout the conversion process. The process of ordering and staging replacement LED fixtures will be greatly aided by establishing these conventions. These services will be billed at a time and material basis per the labor rates outlined in Exhibit C. In the event that Siemens provides procurement services, Siemens will waive the fees associated with this service.

Project Implementation
The implementation phase addresses the various tasks needed to convert each newly acquired street light with a suitable LED fixture and process all data, billing and rebate applications.

Siemens will develop a City specific project plan which will include pre -construction meetings, staging of material, installation, and other acquisition and retrofit project milestones.

1. Procurement Support- LED Material Purchasing (optional) Siemens can direct purchase associated material for the project as approved by the WRCOG and member jurisdiction. This procurement support extends to all associated materials, such as LED fixtures, photocells, pole tags, lighting contr ols, poles, mast arms and all other associated street light system components. Siemens can receive, warehouse and manage all material prior to installation and process all warranty information with manufacturers as needed. Warranty Appendix 7 – City of Murrieta – Exhibit A
20323.00024\30695872.1
information will be ret ained by Siemens with appropriate copies provided to the member jurisdiction for future use.

2. LED Fixture Installation
Siemens will coordinate and complete all aspects of the conversion of HID fixtures to LED fixtures. This includes coordinating with WRCO G staff regarding procurement, receiving materials at a jurisdiction facility during typical working hours, providing equipment and labor for the complete installation of LED fixture and associated materials and field update of WRCOG provided web based GIS database.

Prior to beginning conversion efforts, Siemens will coordinate all traffic control requirements with the member jurisdiction to gain approval for approved methods for various street configurations, including allowable working hours on arterials, in commercial areas and in residential neighborhoods. MUTCD standards will be adhered to.

Installation progress will be tracked on a daily basis by the project’s Siemens Field Supervisor and Project Manager, and a brief status report that includes projec t status and any current issues will be provided to WRCOG and the jurisdiction on a weekly basis.

3. House Side Shield Installation
Siemens will install manufacturer approved house -side shields on LED street lights, as instructed by member jurisdiction. All requests for shields will be reviewed and approved by member jurisdiction staff prior to installation. Siemens can collaborate with member jurisdiction on specific strategies for implementing house side shields during the LED conversion. Siemens will install house-side shield on up to 10% of new LED street lights upon request, within the first year. Full cost of material and labor included in retrofit costs.

Siemens recommends that house side shields for LEDs be installed at sites where HPS fixtures currently have them. The like -for-like replacement can increase customer satisfaction and reduce the amount of visits to the same location.

4. HID Fixture Disposal
Siemens will be responsible for all fixture disposal and recycling. Disposal of existing luminaries and any other discarded materials will follow all applicable California Recycle and Disposal Laws. Siemens will produce a recycling plan, to be approved by the member jurisdiction.

Following disposal, a manifest of disposal will be provided to the member jurisdiction, that specifies what was recycled, what was sent to the landfill, and how hazardous material was disposed of. Siemens reserves the right to select disposal and recycling firms. This includes use of approved bins and locations for temporary hol ding locations of fixtures, etc. All disposal costs, fees, etc. are included in the retrofit costs.

5. Record Documents
Following the completion of the implementation phase and City acceptance, Siemens will generate project close out documentation. This includes (but is not limited to) the following:

Appendix 7 – City of Murrieta – Exhibit A
20323.00024\30695872.1
• Final Installation Data
• A summary report of the LED installation database information updated throughout the installation. This is based on the WRCOG provided web based database. • As-built documentation (as-needed)
• As-built schedule of the project and a comparison of the actual installation vs. the • scheduled baseline.
• A summary of any scope changes that occurred
Siemens will prepare and submit the final rebate documentation to th e utility. In addition, Siemens will verify that the billing rate change has been submitted and accepted, and that the utility bill is correct.

Once the rebate is secured, the billing is verified then a final project closeout report will be generated. This will consist of a complete inventory database of the installed system with GIS locations and attributed of the LED street light system. Furthermore, this report will also include the final results of the rebate allocation, the energy savings to date an d the final estimated energy savings for future years, summarizing the final results of the project.

Maintenance Phase
This phase will begin once a member jurisdiction pays SCE for a group of assets. This will be done in phases to be determined by SCE, the City and Siemens.

The maintenance phase will transition from initial maintenance of the existing poles with HID fixtures to maintenance of existing poles with new LED fixtures as the project progresses.

Siemens will provide maintenance services for all fixtures acquired by the City from SCE and provide a monthly bill prorating the fixtures acquired throughout the previous month, by technology and fixture type.

General Maintenance will consist of all operations and repairs starting at the pull box or bott om of street light pole where the fuse holder or secondary power source necessary to keep all street lights operations, and associated wiring within the street light circuit.

1. Customer Service
Siemens will develop and implement a customer service portal fo r each member jurisdiction to effectively manage all incoming street light inquiries from public and from the member jurisdiction. General customer services include:
• 24/7 telephone and web based reporting service
• Web portal access for member jurisdiction and designated representatives • Quarterly reporting/summaries of customer inquiry activity • Customer service feedback survey

Appendix 7 – City of Murrieta – Exhibit A
20323.00024\30695872.1

2. Routine Street light Maintenance Duties
A base monthly fee is established for maintenance of the street light system on a per month, per light basis. Siemens will respond to standard maintenance calls within 5 working days. The fee will reflect the total number of lights being served along with and adjustments for special fixtures/poles.

Routine Maintenance tasks include but are not limited to:
• RMA of LED Fixture (Shipping and handling)
• Warranty management of defective LEDs
• Traffic Control
• General Cleaning During Call Out
• Outage Nights Checks
• Photocell Replacement
• Fuse Replacement
• Fuse Holders Replacement
• Hand Hole Covers (up to 0.05% of stock, annually)
• False Calls
The fee is expected to be all inclusive, with the sole exceptions being those items identified in the extraordinary maintenance section. Annual services include:
• System problem assessment/diagnostics
• Repair and replacement of damaged/inoperable fixture material o For HID fixtures this can include repair or replacement of constituent parts. Such as lamps, ballasts, starters, reflectors, diffusers, etc. o For LED fixtures this can include repair or replacement of constituent parts. Such as drivers, lenses, and LED arrays. Typically LED fixtures will be covered under warranty and will be processed accordingly.
• Photocell repair and maintenance
• Hand hole cover replacement of standard hand hole covers. Limited to 0.05% of stock annually.
• Coordination with 3
rd party attachment licensees
• Quarterly review of system operation (night check)
• General cleaning of fixture during maintenance call out • Customer service portal operations
• LED fixture warranty processing

3. Extraordinary Street light Maintenance Duties
Siemens recognizes that there will be situations that can and will occur during the maintenance phase of the project that are best addressed individually based on the actual occurrence and not covered under a monthly fixture price. Items such as accidents resulting in the street lights being damaged and replaced or the need for specialized shielding devices are expected to occur, tho ugh the frequency may vary considerably. These items are being defined as Appendix 7 – City of Murrieta – Exhibit A
20323.00024\30695872.1
extraordinary maintenance and not included in the base monthly fee for standard maintenance.

The following items have specifically been identified as extraordinary maintenance:
• 24/7 emergency response and securing field location for basic public safety. This would typically include pushing pole out of the right -of-way or from private property, taping off the area of the debris, capping/taping live wires, checking street light cir cuit and documenting all work activities for insurance purposes. • Pole knockdown repair. Services can include:
o removal of all associated spoils and debris from original installation o installation of new street light pole and associated system components o installation of associated foundation
o Adjacent concrete repair/cap replacement
• House side shield installation (if occurs after year one) • Overhead wiring replacement
• Pole graffiti abatement
• Pole painting
• USA Dig Alert services

Appendix 7 – City of Murrieta – Exhibit B
20323.00024\30695872.1
EXHIBIT “B”

SCHEDULE OF SERVICES
Streetlight Timeline
Acquisition
Process
SCE sends
to CPUC
CPUC
approval
date
Est.

Financial
Closing
SCE
Transition
Start
Phase 1
Transition
(retrofit
start)
Phase 2 (if
needed)
Phase 3 (if
needed)
Phase 4 (if
needed)
Retrofit, O&M, LED fixture, and
financing GOALS
Retrofit, O&M
service selection
GOAL
Finance Closing
and LED
selection GOAL
LED fixture delivery date GOAL
City of
Murrieta
Complete Complete April 10 SCE
dependent;
est. Mid-
May, 2018
SCE
dependent;
est. Fall
2018

Appendix 7 – City of Murrieta – Exhibit C
20323.00024\30695872.1

EXHIBIT “C”

COMPENSATION

BILLING RATES

Item Description Unit Cost
Project Development
1 Street light
pole ID tag
This includes the labor for installation of a unique
pole ID tag for each pole. Pole tags will be affixed to poles with an adhesive, no riveting or drilling will be performed. The pole tags will be installed at the same
time as the LED fixture conversion.
$10.00/pole
Project Implementation
2 LED
replacement
Cobra head
This includes the costs for labor, equipment (trucks,
lifts, tools, traffic control, etc.) and materials needed to replace existing cobra head fixtures with a new
LED fixture. Includes update of WRCOG database
with model number installed and installation date.

This also included the cost for disposal of HID
materials.
$57.00/
Each
3 LED
replacement
Decorative
This includes the costs for labor, equipment (trucks,
lifts, tools, traffic control, etc.) and materials needed to replace existing post top fixtures with a new LED
fixture. Includes update of database with model
number installed and installation date. The cost per
pole shall not include the cost of the actual fixture.
$114.00/
Each
4 House side
shield
installation
As Separate
call
This includes the costs for installation only of new
house side shields including labor, equipment (trucks,
tools, etc.) and incidental materials needed for the
installation. Includes update of database. The cost
does not include the cost of the shield itself.
$64.00/
Each
Routine Maintenance- Pre-LED Conversion
5 HPS Fixture
Maintenance –
Cobra (labor,
materials,
equipment)
This includes the monthly costs for maintenance of
all HPS cobra head fixtures during the period from
acquisition of poles through retrofit with new LED
fixture. Costs include all labor, materials and
equipment needed to keep the existing fixtures
functioning properly until the new LED fixtures are
installed. This includes all anticipated costs for repairs $1.55/
each/month

Appendix 7 – City of Murrieta – Exhibit C
20323.00024\30695872.1
and maintenance during that time including bulb
replacements, ballast replacements, field calls etc. as assumed and prorated across the HPS inventory.
6 HPS Fixture
Maintenance –
Post Top Acorn
(labor,
materials,
equipment)
This includes the monthly costs for maintenance of
all HPS post top fixtures during the period from
acquisition of poles through retrofit with new LED
fixture. Costs include all labor, materials and
equipment needed to keep the existing fixtures
functioning properly until the new LED fixtures are
installed. This includes all anticipated costs for repairs and maintenance during that time including bulb
replacements, ballast replacements, field calls etc. as assumed and prorated across the HPS inventory.
$3.50/
each/month
7 HPS House
side shield
installation
(labor,
materials,
equipment)
This includes the cost for each HPS house side shield
installation that may be requested during the pre-
retrofit stage. Costs include all labor, equipment and
materials including the cost of the shield. These
would be billed on an individual basis (not monthly or
per pole being maintained).
$64.00/
Each
Maintenance- Post LED Conversion
8 LED Fixture
Maintenance
Cobra head
This includes the cost for all regular maintenance and
associated tasks to maintain the cobrahead fixtures in
the street light system. Detailed scope is included in
the Part 1. Scope of Work document above.
$0.65/
each/month
9 LED Fixture
Maintenance
Decorative
This includes the cost for all regular maintenance and
associated tasks to maintain the post top fixtures in
the street light system. Detailed scope is included in
the Part 1. Scope of Work document above.
$2.00/
each/month
10 LED
Replacement
Cobra head
This includes the costs for labor, equipment (trucks,
lifts, tools, traffic control, etc.) and materials needed to replace existing cobra head fixtures with a new
LED fixture. Includes update of WRCOG database
with model number installed and installation date.

This also included the cost for disposal of HID
materials.
$57.00/
Each
11 LED
Replacement
Decorative
This includes the costs for labor, equipment (trucks,
lifts, tools, traffic control, etc.) and materials needed to replace existing post top fixtures with a new LED
fixture. Includes update of database with model
number installed and installation date. The cost per
pole shall not include the cost of the actual fixture.
$114.00/
Each
12 House side This includes the costs associated with the $64.00/

Appendix 7 – City of Murrieta – Exhibit C
20323.00024\30695872.1
shield
installation
installation of a house side shield on a LED fixture
excluding the cost of the actual shield. The costs
should include labor, equipment, tools and incidental
materials needed to complete a standard installation.

This assumes a standard cobra head style fixture and
a factory standard shield available for purchase (does
not include custom installations and decorative
fixtures).

Each
Extraordinary Maintenance
(Reference pricing only- this scope will be quoted on time and material basis) 13 Knockdown
pole
replacement
No foundation
This includes the costs associated with the
replacement of an entire street light pole, luminaire
arm, fixture and wiring typically associated with a
street light knockdown that does not require
replacement of the foundation. This is based on the
following assumptions: a 30 foot, marbelite pole with
a standard 150 watt equivalent LED cobra head
fixture.

The City understands that there will be considerable
variation in costs for these repairs under the contract and anticipates work being authorized individually
through a quote process.

Appendix 7 – City of Murrieta – Exhibit C
20323.00024\30695872.1
14 Knockdown
pole
replacement
with
foundation
This includes the costs associated with the
replacement of an entire street light pole, luminaire
arm, fixture and wiring typically associated with a
street light knockdown that does require
replacement of the foundation. This is based on the
following assumptions: a 30 foot, marbelite pole with
a standard 150 watt equivalent LED cobra head
fixture.

The City understands that there will be considerable
variation in costs for these repairs under the contract and anticipates work being authorized individually
through a quote process.

These repairs will not be completed as part of an
initial emergency response. Costs are based on a
single replacement with work completed during
normal work hours scheduled within the requested
repair interval.
$6,925.00/
Each
15 Pull box lid
replacement
This includes the cost of labor, materials and
equipment to purchase, supply and replace a pull box
lid with a fiberlyte lid due to damage or missing lid.
$165.00/
Each
16 Pole graffiti
abatement
This includes the estimated cost per pole to remove
or cover reported graffiti. Costs include labor,
equipment and materials needed to complete each
individual abatement assuming time required to
abate graffiti is less than 30 minutes. Work limited to under 4SF and/or lower than 7ft.

$65.00/
Each
17 Overhead
wiring
replacement
Total cost to repair or replace damaged overhead
wiring. Cost provided per foot of wire being replaced.

Costs include labor, equipment and materials to
complete the repair during normal working hours.

The City understands that there will be considerable
variation in costs for these repairs under the contract and anticipates work being authorized individually
through a quote process.

$15/foot, or
lump sum
as quoted
18 Pole painting
This includes the costs on a per occurrence (per pole)
basis for all labor, equipment and materials needed
to prep and paint a standard metal street light pole
(assume 30 foot). It is assumed that a minimum of 5
poles and a maximum of 20 poles would be
$479.00/
Each

Appendix 7 – City of Murrieta – Exhibit C
20323.00024\30695872.1
scheduled for painting as a group.
19 USA Dig Alert
Siemens typically prices this service out on a per
occurrence basis. This includes the following:

Siemens technician identifies the point of
demarcation on site using field equipment. This is
typically limited to approximately 100-150 linear ft
per call out.
$225.00/
Each

Siemens will evaluate maintenance contract values annually and discuss any needed adjustments with member jurisdictions. Siemens typically utilizes the US Consumer Price Index to calculate annual escalations.

Schedule of Values- Time and Material Rates

1. Labor Regular Time* Overtime* Premium Time*
Maintenance
Superintendent $105.00 $135.00 $160.00
Foreman $105.00 $135.00 $160.00
Electrician $98.00 $125.00 $145.00
Laborer $85.00 $115.00 $135.00
Energy Engineer $180.00 N/A N/A

2. Equipment Rate per Hour
Bucket Truck $28.00
Service Truck $25.00

3. Material Mark up (from actual invoice cost)
Street light LED Retrofit Installation
Materials 15%
Street light Maintenance Materials 15%
* Work hours are as follows:
o Regular Hours – 7:30am to 4:00pm Monday Thru Friday except Holidays o Overtime

1. Monday thru Friday after 4:00pm (for the first four hours)

2. Saturday for the first 12 hours worked
o Premium Time

1. Monday thru Saturday After 12 working hours

2. Sunday & Holidays all day (24 hours)

Murrieta City CouncilDecember 19, 2023

Murrieta City Council
December 19, 2023