HomeMy WebLinkAboutContract #: 1156 - From: 08-15-2018 To: 05-30-2018 - Cimcon Lighting - Town Manager/DPW APOL'>. SMART CROIN[TH AND REGIONAL COLLABORATION
ME Mtl POUTAN AAGA PLANNING COUNCIL
CONTRACT FOR GOODS AND SERVICES
BYAND BETWEEN
METROPOLITAN AREA PLANNING COUNCIL
AND
CiMCGN LIGHTING,INC.
This AGREEMEN,dated July 20, 2018, is made and entered into by and between CIMCON
Lighting, Inc.[ffVENDOR"], with its principal office located at 600 Technology Park Drive, Billerica„
Massachusetts 01821, and the Metropolitan Area Planning Council ["MAPC"],a public body
politic and corporate,established by Chapter 40B,Sections 24 through 29 of the Massachusetts
General Laws,with its principal office located at 60 Temple Place, Boston, Massachusetts
01.11,acting as the collective purchasing agent for the City of Beverly,Town of Tewksbury,Town
of Weymouth,and the following;regional planning agencies,on behalf of 848 municipalities that
they represent: Berkshire Regional Planning Commission,Cape Cod Commission,Central
Massachusetts Regional Planning Commission, Franklin Regional Council of Governments,
Martha's Vineyard Commission, Merrimack,Valley Planning Commission, Montachusett Regional
Planning Council, Metropolitan Area Planning Council, Nantucket Planning and Economic
Development Commission,Northern Middlesex Council of Governments,Old Colony Planning
Council, Pioneer Valley Planning Commission,Southeastern Regional Planning and Economic
Development District(to be referred to hereafter as the"BUYER" in their individual legal capacity).
Such collective purchasing has been accomplished pursuant to M.G.L.c. Chapter 7,Section 22B
of the Massachusetts General Laws and without liability to MAPC.
RECITALS
WHEREAS, MAPC has,on behalf of the above named BUYERS, has conducted a procurement to
enable BUYERS to purchase wireless streetlight control systems(RFP#MAP-DOER-12, hereinafter
("RFP"'));which procurement was conducted pursuant to M.G.L.c.SOB;and,
WHEREAS,VENDOR proposal has been evaluated and selected by the MAPC Evaluation Team to
provide wireless streetlight control systems to any of the above listed BUYERS;and,
NOW THEREFORE, in consideration the mutual covenants set forth herein and for other good and
valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties
hereto covenant and agree as follows:
Metroportan Area Plahniing Cour l 60 Temple Place I Boston,Massachusetts 02111 1617-933-0700 i 617-482-7185 flax I mapc.org
TERMS AND CONDITIONS
Article I
General Description of the Work
1. Pursuant to the Terms and Conditions of this AGREEMENT and those Special Terms and
conditions listed in Exhibit C1,the Request for Proposals["RFP"] - RFP#MAPC-DOER-12
referenced attached in Exhibit lam and the VENDOR'S Price Proposal and Technical
Proposal referenced in abibit D, MAPC hereby authorizes BUYERS to engage the VENDOR
to provide streetlight wireless control systems to the BUYERS.,
Article 11
Skervim Q—f the YENDOR
2. The VENDOR will provide the goods and/or services as described in the RFP and its
response thereto and VENDOR will review to confirm In accordance with the RFP and
associated documents and can deliver quantity in reasonable time as mutually agreed to
by the Buyer and Vendor and Vendor will accept the Municipal Subscription Form
referenced in the RFP.
3. There shall, be no amendment to this AGREEMENT without the written approval of MAPC.
4. MAPC shall be under no obligation to pay for any goods provided or services performed by
the VENDOR.
S. The VENDOR represents and warrants to MAPC as follows:
i. That it and all its personnel(whether employees,agents or independent)are
qualified and duly licensed as required by Massachusetts state law and/or local
municipal code to provide services and/or goods required by this AGREEMENT,
H. That it further agrees to perform services, including any manufacturing, in a
professional manner adheringto a reasonable standard of care and in accordance
with all applicable State or Federal laws, rules and regulations.
iff. That it will obtain any and all permits, bonds, insurances,and other items required for
the proper and legal performance of the work.
iv. That it is not a party to any AGREEMENT, contract or understanding, which would in
Exhibits B(the RFP)and D(Vendor's proposal)referenced herein shall be in name only. MAPC retains the
original copies of the KFF and the Vendor's Proposal. These documents are hereby incorporated and annexed to
this AGREEMENT.
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any way restrict or prohibit it from undertaking or performing its obligations
hereunder in accordance with the terms and conditions of this AGREEMENT.
Article III
Performance of the VENDOR
6. In the performance of services under this AGREEMENT,the VENDOR acts at all times as
an independent contractor. There is no relationship of employment or agency between
MAPC,on the one hand, and the VENDOR on the other,and neither party shall have nor
exercise any control or direction over the method by which the other performs its work or
functions aside from such control or directions as provided in this AGREEMENT which the
parties view as consistent with their independent contractor relationship.
7. The VENDOR agrees to be responsible for and warrantee the work of its subcontractors
listed in F2111bit E and to ensure their compliance with all legal,quality and performance
requirements of the Request for Proposals ["REP"] - attached ln.Exhibit B;and the
VENDOR'S Price Proposal and'Technical Proposal attached in Exhibit D,The VENDOR
agrees,that it may not use subcontractors not named in Exhibit E without the prior written
consent of MAPC,which consent will not unreasonably be withheld.
8. VENDOR agrees that it will meet with MAPC quarterly i(or a lesser period of time as
determined by MAPC)to discuss the status of any implementation and review any
concerns. Such meetings can be either in person at the MAPC office,or it may be
conducted remotely. VENDOR shall prepare a written status report and send such written
report to MAPC four(4) business days in advance of the meeting.
Article IV
Time Qf Performance an iquid,tefii Dapnnag-es
9. Time shall be of the essence in relation to VENDOR'S performance under this
AGREEMENT. VENDOR shall complete performance after reviewing and agreeing to the
delivery schedule as defined on the BUYER'S purchase order or other document
confirming its authorization to the VENDOR to proceed. Reasonable extensions shall be
granted by the BUYER at the written request of the VENDOR, provided the justifying
circumstances are documented by and are beyond the reasonable control of VENDOR and
without fault of VENDOR. in the event of such an extension,all other Terms and
Conditions of this AGREEMENT,except the dates of commencement and completion of
performance,shall remain in full force and effect between the parties unless modified in
writing.
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10. MAPC and VENDOR agree that the economic damage suffered by BUYER as a result of
delay in the successful implementation of BUYER'S streetlight wireless controls system is
not readily ascertainable. Where delay is solely attributable to VENDOR, BUYER may elect
to impose liquidated damages asset forth herein. Liquidated damages shall be due to
BUYER in the amount of 0.1%(one-tenth of one percent)of the face value of the
VENDOR'S quoted or modified purchase price for each day performance exceeds the
promised date(s). Such liquidated damages may be acknowledged in VENDOR'S final
invoice or taken by BUYER as a deduction to such final invoice. In the event that
VENDOR'S,final Implementation of its system falls to perform in accordance with the RFP
and VENDOR'S proposal, BUYER shall, in writing,advise VENDOR of such failure to comply.
VENDOR shall be given a 4(four)week period to cure such failure. If VENDOR has not
been able to cure such failure within 4(four)weeks post written notice, BUYER may invoke
liquidated damages,which shall include the assessment calculated above,as well as to
require VENDOR to assume fiscal responsibility to recompense BUYER for the cost of
cover to engage a subsequent VENDOR to provide streetlight wireless control system.
il. Any dispute in the amount of liquidated damages shall be submitted to arbitration by
either BUYER or VENDOR through the American Arbitration Association within 10 (ten)
business days of written notice given bythe party declaring impasse. BUYER and VENDOR
agree to fully comply with the arbitrator's decision within a reasonable time.
Article V
Revisions In ft Work to Be Performed
12. If during the VENDOR'S Time of Performance,BUYER requires revisions or other changes
to be made in the scope or character of the work to be performed, BUYER will promptly
notify VENDOR In writing. For any changes to the scope or character or work,VENDOR
shall provide BUYER with a written quote of change in price and/or change in time of
performance and shall proceed with such changes only upon written consent of BUYER,
which shall be construed as a modification to VENDOR's original purchase order.
13. BUYER will neither unreasonably request revisions, nor will it unreasonably withhold final
acceptance of delivered products.
Article VI
Term of AGREEMENT
14. The term of this AGREEMENT shall commence upon execution by MAPC,and it will
continue until May 30,2019,or until otherwise terminated as provided by this
AGREEMENT or the RFP. MAPC,in accordance with the RFP, may elect to exercise 2(two)
1(one)year options to extend this AGREEMENT.
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15. All Terms and Conditions of This AGREEMENT and any amendments thereto;the RFP;
VENDOR'S proposal and any amendments thereof,shall remain in full force and effect
during the entire Term of this AGREEMENT and any extension thereto. Notwithstanding
this provision,VENDOR may, in the event of MAPCs exercise of the second extension,
request that MAPC negotiate a reasonable cost escalation,which price cannot exceed 5%
of the cost at the time of the request. VENDOR shall make such request in writing and
demonstrate the basis for such price increase. MAPC will in good faith negotiate such
price increase request, However, MAPC will not guarantee that the requested price
increase will be accepted.
Article VII
Orders, Invoices,and Pavments
16. Orders, invoices,and payment shall be processed and paid as specified in Sections 9.11,
9.15 and 9.16-Terms&Conditions of the RFP. For clarity, payment schedules and
invoicing will be mutually agreed to by the Buyer and Vendor prior to Vendor accepting
BUYERS purchase orders.
Article VII I
Asislin_MoA
17. Neither party shall assign,transfer or otherwise dispose of this AGREEMENT or any of its
rights hereunder or otherwise delegate any of its duties hereunder without the prior
written consent of the other party. Any such attempted assignment or other disposition
without such consent shall be null and void and of no force and effect.
Article IX
Indmnification
18. VENDOR agrees to indemnify and save MAPC,The Commonwealth of Massachusetts and
BUYERS harmless from suits, claims,or demands arlsing out of errors, omissions or gross
negligence by VENDOR(including all its employees or agents) in performing under this
AGREEMENT,or any breach of the terms of this AGREEMENT,which constitute an
obligation of VENDOR. VENDOR shall reimburse MAPC and BUYER for any and all
costs, damages, and expenses including reasonable attorney's fees which MARC
and BUYERS pay, or becomes obligated to pay, by reason of such activities or
breach up to three times the maximum of the amount of monies received from the
specific BUYER by the VENDOR of which the activities or breach relates to. The
provisions of this Section shall be in addition to and shall not be construed as a limitation
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on any other legal rights of MAPC, BUYERS,and The Commonwealth of Massachusetts
expressed or not expressed in the RFP and with respect to this AGREEMENT.
Article X
Insurance
-19. Before performing under this AGREEMENT,the VENDOR shall obtain,and shall maintain
throughout the term of this AGREEMENT, insurance at limits specified in the RFP and
provide written documentation of such in the form specified in the RFP.
20. The VENDOR shall give MAPC 20 days (twenty)written notice and copies of documentation
in the event of any change or cancellation of coverage.
Article X]
Termination 9-f Agreement
21. Either MAPC or the VENDOR may terminate this AGREEMENT for cause upon written
notice given by the non-defaulting party. For the purposes of this provision,"Cause"shall
include the failure of a party to fulfill any materlal duty hereunder in a timely and
satisfactory manner.
22. MAPC shall have the right to terminate this AGREEMENT for its convenience upon 14
(fourteen) calendar days of written notice.
23. MAPC and BUYER shall not be liable for payments for the services and/or expenses or lost
profits of the,VENDOR in the event of any termination other than for the products that are
previously accepted in the purchase order,currently being manufactured for fulfillment of
an accepted purchase order,completed awaiting shipping,or are in the process of being
shipped to BUYER at the time of termination.
24. The VENDOR shall remain liable for any damages, expenses,warrantees,or liabilities
arising under this AGREEMENT(including its indemnity obligations)with respect to work
performed pursuant to the AGREEMENT up to three times the maximum of the amount of
monies received from the specific BUYER by the VENDOR of which the activities or breach
rebates to.
Article X11
Entirety of Agreement
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25. This AGREEMENT,together with its Exhibits,the RFP referenced above and its Addenda,
the required supplemental documents and any additional Exhibits, constitute the entire
AGREEMENT between MAPC and the VENDOR with respect to the matters set forth therein
and may not be changed (amended, modified or terms waived)except by a writing signed
by both parties. Any notices required or allowed shall be sent by receipt-verified mail,
email,fax or courier to the persons designated in Exh-ibit A.
26. The provisions of the RFP and the VENDOR's Proposal are incorporated herein by
reference. In the event of any conflict among the named Documents,the documents shall
be construed according to the following priorities:
Highest Priority. Amendments to Contract(if any)
Second Priority: Contract
Third Priority: Addenda to the RFP(if any)
Fourth Priority: RFP
Fifth Priority: VENDOR'S Proposal
Article XIII
Severabilitv
27. In the event any provision of this AGREEMENT is found by a court of appropriate
jurisdiction to be unlawful or invalid,the remainder of the AGREEMENT shall remain and
continue In full force and effect,
Article XIV
Governing La)y and Jurisdiction
28. This AGREEMENT shall be governed by,construed and enforced in accordance with laws
of the Commonwealth of Massachusetts. MAPC,BUYER,and VENDOR agree to submit
their respective jurisdiction and venue to the state and federal courts in the
Commonwealth of Massachusetts to resolve any disputes or disagreements that may arise
under any provision of this AGREEMENT.
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(Remainder of Page Intentionally Left Blank)
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Article XV
Notice
29. Except as otherwise expressly provided in this AGREEMENT,any decision or action by
MIAPC relating to this AGREEMENT, its operation,or termination,shall be made only by
MAPC or its designated representative identified: in Exhibit
IN WITNESS' HEREOF,the parties have caused this AGREEMENT to be executed by their duly
authorized officers on the date written below.
For MiAPC o d any VENDOR identified herein:
Signature Date
t
Name
Title
F r e VENCOR.,
-7b-
*Suture * Cate ;:....................
,Jamie Marian!
Cimcon Lighting, Inc. NA
CFO
Affix Corporate Seal
(or mark"nfa')
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EXHI BIT A
Notice Addressees
For MAPC: For the VENDOR:
Rebecca Davis Jamie Mariani
Name * Name
Deputy Director CFO
Title *Title
MAIRC imcon Ll ting. Inc.
Organization Organization
60 Temple Place 600 Technoloa Park Drive
Street Address *Street Address
Boston, MA.02111 Billerica. MA 01821
City,State,ZlP Street Address
OIZ,933.0708 978-320-4002
Phone Phone
617,482.7185
Fax Fax
rdavis@MAPC.org ism ie.mariani!Rcimconliohting.co,m
e-mail e-mail
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EMBIT B
Request for Proposals
RFP# MAPC-DOER-12 Wireless Streetlight Control Systems
(Incorporated by Reference)
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EXHIBIT
Special Terms&Conditions
1. VENDOR attests to and warrants any and all representations made in VENDOR's Complete
Price and Complete Non-Pfte Proposals including, but not limited to,any and all
representations and warranties made by it that exceed those of the manufacturers of
products and assemblies used in its manufacture of subject apparatus and fitments.
2. VENDOR shall indemnify BUYER for any and all loss of value of manufacturers'warranties
incurred prior to VENDOR's complete performance with regard to each individual BUYER.
S. For,any BUYER participating in the LED Streetlight Rapid Retrofit program administered by
MAPC,VENDOR shall work with MAPC and BUYER to provide documentation of dimming
schedules that,BUYER and MAPC can use to calculate energy savings to verify to the
Department of Energy Resources that the LED streetlight and wireless controls uses less
energy than the same LED streetlights with standard controls.
4. During the course of this contract, electric distribution utilities may introduce tariffs that
support reduced billing based on the use of dimming and On/Off control provided by wireless
controls.Such tariff may require BUYER to provide data to the electric distribution company
in as-yet-to-be specified formats-VENDOR shall work with MAPC and BUYERS and make
reasonable efforts to enable BUYERS to provide data in such format.
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ExHIBIT D
VENIV OR'S PR0POSAL IN RESPONSE_ I APED t - IRELESS STREETLI h17 Y TEM
JIUCORPORA.T'ED EY REFERENCE)
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allIBIT E
Vendor's Subcontractors
1.
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EXHIBIT F
Other Documents:
1. Insurance Guarantee(s)—(to be provided By Vendor for Contract Execution)
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MUNICIPAL SUBSCRIPTION TO COLLECTIVE PROCUREMENT CONTRACT
FOR THE PROVISION OF:
Wireless Streetlight Control Systems
The municipal corporation named below, by action of its duly authorized contracting authority,
hereby declares its engagement of the provider of the above listed goods and/or services. This
engagement is made subject to the terms and conditions of the contract cited below, entered
into by the Metropolitan Area Planning Council (MAPC), pursuant to M.G.L. c.7 s.22B, as a
collective procurement on behalf of the City of Beverly, Town of Tewksbury, Town of
Weymouth, and the 348 municipalities and their subdivisions represented by the following
regional planning agencies: Berkshire Regional Planning Commission, Cape Cod Commission,
Central Massachusetts Regional Planning Commission, Franklin Regional Council of
Governments, Martha's Vineyard Commission, Merrimack Valley Planning Commission,
Montachusett Regional Planning Council, Metropolitan Area Planning Council, Nantucket
Planning and Economic Development Commission, Northern Middlesex Council of
Governments, Old Colony Planning Council, Pioneer Valley Planning Commission,
Southeastern Regional Planning and Economic Development District, and subject to applicable
Massachusetts municipal procurement statutes, to which MAPC certifies compliance.
The municipality acknowledges and accepts that:
1) This agreement to consume and to provide the subject goods and/or services is made by
and between the municipality and the contractor, and that MAPC is not a party to nor liable
for any obligations arising from any consumptive transactions.
2) The municipality alone is responsible for payment to the provider for any goods and/or
services rendered through the contract.
3) The municipality alone is responsible for obtaining, from the provider, any and all bonds,
insurance and other certificates required for completion and consummation of the contract,
which were not provided as part of the bid or proposal.
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Contract MAPC-DOER-12 Streetlight Wireless Control Systems (Attached and
Number: fully incorporated by reference
For: Streetlight Wireless Control Systems
Vendor: CIMCON
Municipality: Town of North Andover
Address: 120 Main Street
North Andover, MA
01845
Signature:
Title: TownfAanager
Date: 10/25/2018
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