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HomeMy WebLinkAbout2022-04-05; City Council; ; Assignment and Assumption Agreement for Traffic Signal Maintenance and Operations Services0 CITY COUNCIL ~ Staff Report Meeting Date: To: From: Staff Contact: April 5, 2022 Mayor and City Council Scott Chadwick, City Manager Nestor Mangohig, Senior Engineer nestor.mangohig@carlsbadca.gov, 442-339-2504 CA Review RMC Subject: Assignment and Assumption Agreement for Traffic Signal Maintenance and Operations Services Districts: All Recommended Action Adopt a resolution authorizing the City Manager or designee to execute the assignment and assumption agreement for traffic signal maintenance and operations services with Yunex LLC. Executive Summary/Discussion The City Council approved an agreement with Siemens Mobility Inc. for traffic signal maintenance and operations services on June 22, 2021. (Resolution No. 2021-153). Just over a week later, on July 1, Siemens re branded the branch of the company that provides those services as Yunex LLC. Staff have since drafted an agreement (Exhibit 2) that would allow Siemens to assign all its rights and obligations under the 2021 agreement to Yunex LLC with the written approval of the city. The 2021 agreement with Siemens did not authorize the City Manager to sign such an agreement on behalf of the city. Carlsbad Municipal Code Section 3.28.040(D)(3) requires the City Council's authorization for the City Manager or designee to sign the assignment and assumption agreement on behalf of the city. Staff recommend signing the agreement for several reasons, including: • Maintenance and operations services to continue as usual, with the company using the same staff and management. • The insurance requirements remain unchanged. • The indemnity requirements also remain unchanged. • Invoicing will reflect the parent company name of Siemens Mobility Inc. • Having the company's current name on the agreement also protects the city's rights in case of a potential dispute. Staff have identified no drawbacks to updating the city's relationship with the contractor by approving the agreement. April 5, 2022 Item #1 Page 1 of 8 In addition, if Yunex LLC becomes a subsidiary of a new company without a subsequent assignment and assumption agreement in place, such action would exceed the scope of the current traffic signal maintenance and operations contract and a lapse in maintenance and operations services could occur. Fiscal Analysis This item does not change any fiscal aspect of the current traffic signal maintenance and operations agreement and as such, there is no fiscal impact related to this item. Next Steps Upon City Council approval, the City Manager or designee will execute the assignment and assumption agreement indicating the city's consent as required in the 2021 agreement for traffic signal maintenance and operations services. Environmental Evaluation This action does not constitute a "project" within the meaning of the California Environmental Quality Act under Public Resources Code section 21065 in that it has no potential to cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. Public Notification This item was noticed in accordance with the Ralph M. Brown Act and was available for public viewing and review at least 72 hours prior to the scheduled meeting date. Exhibits 1. City Council resolution 2. Agreement for Traffic Signal Maintenance and Operations Services, Siemens Mobility Inc. (On file in the Office of the City Clerk) April S, 2022 Item #1 Page 2 of 8 RESOLUTION NO. 2022-080 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE CITY MANAGER OR DESIGN EE TO EXECUTE THE ASSIGNMENT AND ASSUMPTION AGREEMENT FOR TRAFFIC SIGNAL MAINTENANCE AND OPERATIONS SERVICES WITH YUN EX, LLC EXHIBIT 1 WHEREAS, on June 22, 2021, the city entered into an agreement with Siemens Mobility, Inc. to provide traffic signal maintenance and operations services, or 2021 Agreement, with the adoption of Resolution No. 2021-153; and WHEREAS, on July 1, 2021, Siemens Mobility, Inc. rebranded its Intelligent Traffic Systems branch, which includes their traffic signal maintenance and operations services, as Yun ex, LLC; and WHEREAS, the 2021 Agreement for traffic signal maintenance and operations services allows Siemens to assign its rights and obligations under the 2021 Agreement to a third party upon written approval of the city; and WHEREAS, the same staff and management working for Siemens continue to work for Yunex, insurance requirements remain unchanged, indemnity requirements remain unchanged; and WHEREAS, staff therefore drafted the Assignment & Assumption agreement, or A&A, to allow Assignor-Siemens to assign all its rights and obligations under the 2021 Agreement for current signal maintenance and operations services to Assignee-Yunex; and WHEREAS, Carlsbad Municipal Code Section 3.28.040{D)(3) requires City Council authorization to delegate authority to the City Manager or designee to sign the A&A because the 2021 Agreement with Siemens did not authorize the City Manager to sign an A&A or any other assignment agreement on behalf of the city. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the City Council hereby authorizes the City Manager or designee to execute the Assignment and Assumption Agreement for traffic signal maintenance and operations services, attached hereto as Attachment A. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 5th day of April 2022, by the following vote, to wit: AYES: NAYS: ABSENT: Hall, Blackburn, Bhat-Patel, Acosta, Norby. None. None. -tt)V FAVIOLA MEDINA, City Clerk Services Manager (SEAL) ASSIGNMENT AND ASSUMPTION AGREEMENT FOR ATTACHMENT A PSA21-1502TRAN TRAFFIC SIGNAL MAINTENANCE & OPERATING SERVICES THIS ASSIGNMENT A~ASSUMPTION ,\GREEMENT ("Assignment Agreement") is made and entered into this 1 day of ~ (\ \ 20..2.d:::.._, but effective August 19, 2021 by and between the City of Carlsbad, a political subdivision of the State of California ("City"), Siemens Mobility Inc., a Delaware corporation ("Assignor") and Yunex, LLC., a Delaware limited liability company,("Assignee"), and is made with reference to the following facts: RECITALS A. On June 22, 2021, the City and Assignor entered into that certain Professional Services Agreement concerning Traffic Signal Maintenance & Operating Services; Contract Number PSA21-1502TRAN, (the "Agreement"). B. Paragraph 25, SUCCESSORS AND ASSIGNS of the Agreement allows Assignor to assign rights and obligations under the Agreement upon written approval of the City. C. Assignor desires to assign its interest in the Agreement to Assignee. Further, Assignee desires to accept assignment of Assignor's interest in the Agreement and City consents to the assignment of the interest in the Agreement from Assignor to Assignee. NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and obligations set forth herein, the parties hereto agree as follows: 1. Assignment. Assignor hereby assigns to Assignee all of Assignor's rights and obligations as set forth in the Agreement. 2. Assumption. Assignee hereby assumes all of Assignor's rights and obligations as set forth in the Agreement. 3. City Consent. City hereby agrees and consents to the assignment of all of Assignor's rights and obligations as set forth in the Agreement to Assignee. 4. General Terms and Conditions. The following general terms and conditions shall apply to this Assignment Agreement. 4.1 Hold Harmless. In addition to the hold harmless provisions contained within the Agreement, and except as to the sole negligence, or willful misconduct of City, Assignee shall defend, indemnify and hold the City, its officers and employees, harmless from any and all loss, damage, claim for damage, liability, expense or cost, including attorneys fees, which arises out of or is in any way connected with this Assignment Agreement, notwithstanding that City may have benefitted from this Assignment Agreement. The hold harmless provision shall apply to any acts or omissions, wilful! misconduct or negligent conduct, whether active or passive, on the part of Assignee. The parties expressly agree that this section shall survive the expiration or early termination of this Agreement. 4.2. Counterparts. This Assignment Agreement may be executed in counterparts, each April 5, 2022 1 City Attorney Approved 07/11/16 Item #1 Page 5 of 8 PSA21-1502TRAN of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 4.3. Successors and Assigns. It is mutually understood and agreed that this Assignment Agreement shall be binding upon City, Assignor and Assignee and their respective successors. Neither this Assignment Agreement or any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of City. 4.4. Governing Law. This Assignment Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of California. 4.5. Venue. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Assignment Agreement shalt be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. 4.6. Notices. Service of any notices, bills, invoices or other documents required or permitted under this Assignment Agreement shall be sufficient if sent by one party to the other by United States mail, postage prepaid and addressed as follows: City: Assignor: Assignee: City Manager City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Siemens Mobility, Inc. Marc Buncher 2250 Business Way Riverside, CA 92501 Yunex, LLC Rodney Mathis 9225 Bee Cave Road Building B, Suite 201 Austin, TX 78733 4.7. Nondiscrimination. During the term of this Assignment Agreement, the parties shall comply with the state and federal laws regarding non-discrimination. 4.8 Authority. The parties executing this Assignment Agreement on behalf of City, Assignor and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the City, Assignor and Assignee, respectively, to the terms and conditions hereof. 4.9 Severability. Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Assignment Agreement and shall not affect any other provision, term, condition, covenant, and/or restriction, of this Assignment Agreement and the remainder of this Assignment Agreement shall continue in full force and effect. April 5, 2022 2 City Attorney Approved 07/11/16 ltem #1 Page 6 of 8 PSA21-1502TRAN 4.10 Effective Date. This Assignment Agreement shall be ffective upon the date and year first above written. ASSIGNOR: SIEMENS MOBIL~,.J,.,._. *By: ~ (sign here) MarcAtm~ ,,)Printnam · **By: ~ --...f.C.......L..J""c'-si..:.gn.J...<heC...re_) __ ....:.... __ Marsha Smith, CFO (print name/title) ASSIGNEE: YUNEX,LLC *By:~ .we/e) Rodney Mathis, President Dirk Rauber, CFO (print name/title) CITY Seo wick, City Manager ATTEST: for Faviola Medina City Clerk Services Manager If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups: *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. ROVED AS TO FORM: CELI . REWER, City Attorney Assistant City Attorney April 5, 2022 3 City Attorney Approved 07111/16 ltem #1 Page 7 of 8 Exhibit 2 Agreement for Traffic Signal Maintenance and Operations Services, Siemens Mobility Inc. (on file in the Office of the City Clerk) April 5, 2022 Item #1 Page 8 of 8