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HomeMy WebLinkAbout2019 CON San Diego Port Tenants Association, STC Traffic, and DENSO International - Traffic Signal DataCOOPERATIVE AGREEMENT Authorization for FSP Team Access to City of National City Traffic Signal Data for Freight Signal Priority Pilot Project Demonstration This COOPRATI VE AGREEMENT ("Agreement") is entered into this November 5, 2019 between the CITY OF NATIONAL CITY, a municipal corporation, herein referred to as "City", and San Diego Port Tenants Association, a California corporation ("SDPTA"), STC Traffic, Inc., a California corporation ("STC") and DENSO International America, Inc., a Delaware corporation ("DENSO"), collectively referred to as "FSP Team". Both the City and FSP Team are each sometimes referred in the agreement as "Party" and both the City and FSP Team are sometimes referred in this Agreement together as "Parties". RECITALS WHEREAS, FSP Team has proposed a Freight Signal Priority (FSP) Pilot Project Demonstration for corridor traffic signal operations beginning at Harbor Drive and Cesar E. Chavez Parkway and ending at Tidelands Avenue and Bay Marina Drive as depicted in Attachment A. WHEREAS, the FSP Team intends to sign Cooperative Agreements with other public entities such as Caltrans, the City of San Diego, and the Port of San Diego to ensure the proper execution of the FSP Pilot Project as a whole; WHEREAS, the City's portion of the FSP Pilot Project will run along Harbor Drive from Northern City Limits to Bay Marina Drive in the National City; WHEREAS, FSP Team is collaborating to develop strategies and systems for use in maximizing the efficiency of transportation end users and thus the overall capacity of existing transportation networks; WHEREAS, The FSP Team is also coordinating the demonstration of the FSP Pilot Project with the San Diego Unified Port District to study potential to reduce emissions of air pollutants and greenhouse gas emissions from freight movement along Harbor Drive. WHEREAS, City collects Real Time Traffic Signal Data and other related data; WHEREAS, FSP Team's proposed demonstration will require access to City Data; WHEREAS, the City Data may be made available to FSP Team at no cost to City; WHEREAS, the City Data are not confidential, nor identify any transportation end user specifically in any manner; WHEREAS, FSP Team desires permission to obtain access to the Real Time Traffic Page 1 of 13 Signal Data for use in conjunction with its demonstration; WHEREAS, FSP Team agrees to provide related inventories, signal performance metrics, and other formatted data products in exchange for access to these Real Time Traffic Signal Data; WHEREAS, the City agrees to provide FSP Team with Real Time Traffic Data subject to the terms and conditions in this Agreement; NOW THEREFORE, FSP Team and the City agree as follows: Section 1. Definitions "City Data" means collectively, Real Time Traffic Signal Data, Traffic Signal Timing Plan, and any other data provided to FSP Team by City under this Agreement. "Real Time Traffic Signal Data" means signal status and states, demand status and states, and other information available from the traffic signal controller or City's central signal system or City's Advanced Traffic Management System (ATMS). "Traffic Signal Timing Data" means signal timing plans, as -built intersection design, traffic signal plans, signal control plans, or other documents that identify the time -of -day plans. "Product" means the data derived from the Real Time Traffic Signal data and Traffic Signal Timing Data. Section 2. Authorized Representatives For the City, _ ROBERTO YANO_ is designated by City as an authorized representative (City Agent). For the FSP Team, _ SHARON CLOWARD_ is designated by SDPTA as an authorized representative (SDPTA Agent). _ JASON STACK_ is designated by STC Traffic as an authorized representative (STC Agent). _ BRYAN WELLS_ is designated by FSP Team as an authorized representative (DENSO Agent). Section 3. Purpose and Scope FSP Team desires access to the Real Time Traffic Signal Data, to include signal status and states, demand status and states, and other information available from traffic signal controller or ATMS. In addition, FSP Team desires access to time of day signal timing parameters. FSP Team will use these data to improve freight operations through Page 2 of 13 implementing Freight Signal Priority (FSP) technology and demonstrate the benefits along Harbor Drive from Northern City Limits to Bay Marina Drive. The intended use of the Product is for connected vehicle applications to improve the truck freight performance or efficiency, improve ride comfort for driver or operator, provide information to the driver or operator, monitor driving behaviors, or apply to automated features. FSP Team shall limit its use of the derived Product for applications that do not violate local, state, or federal laws, or uses that will not be used in a manner to encourage undesirable driver behavior for the City. The Product is not permitted for traffic law enforcement. Section 4. Access of Traffic Signal Timing Data City hereby grants FSP Team access to Traffic Signal Timing Data. FSP Team will work with City Agent to obtain data in the most efficient and non -intrusive manner from City, which may include access to City central system or ATMS. FSP Team will be provided with access to this Traffic Signal Timing Data at no cost, except FSP Team will be responsible for any costs associated with making the data available. Before installation of the Equipment (defined in Section 6 below), the FSP Team must also submit a proposed workplan or some other proposed schedule by which the FSP Team plans to deploy the Equipment (defined in Section 6 below) throughout the City. FSP Team shall properly install any associated software necessary to generate the Traffic Signal Timing Data at no cost to the City. If the City elects to retain the Equipment, as described in Section 6, the FSP Team will forward to City all software licenses, credentials, and other information necessary for the continued operation of the Equipment. If the City so retains the Equipment, the Parties will meet and confer in good faith about whether the City can also assume the cost of continued operation of such software. City reserves the right to limit access to such data to what is reasonably necessary to accomplish FSP Team's FSP Pilot Project Demonstration. Section 5. Access of Real Time Traffic Signal Data City hereby grants FSP Team non-exclusive, non -transferable, non-sublicensable, limited, and royalty free access to obtain and utilize its Real Time Traffic Signal Data pursuant to the terms of this Agreement. FSP Team will be provided with access to this Real Time Signal Data at no cost, except FSP Team will be responsible for any costs associated with making the data available. FSP Team will be responsible for all vendor costs associated with City's ATMS vendor making system modifications to make the Real Time Signal Data available. FSP Team shall have the right to use the data in any manner it deems appropriate in furtherance of its business purposes, including without limitation providing the derivatives of the data and Product to third parties, subject to the terms of this Agreement. The City is subject to the Public Records Act and this Agreement is not intended to Page 3 of 13 impede or impair City's requirements or obligations under that Act. If City receives a request for a copy of any information or documentation which FSP Team has indicated, by written notice to City, FSP Team considers confidential and proprietary, City shall notify FSP Team so that so that FSP Team may, at FSP Team's sole cost and expense, seek relief from compliance with such request. City reserves the right to limit access to such data to what is reasonably necessary to accomplish FSP Team's technology demonstration. Section 6. Ownership of and Rights to Data & Equipment The City retains all rights to the raw data, or Real Time Traffic Signal Data, being provided to FSP Team from the City, and from Caltrans, the City of San Diego, and the Port of San Diego. FSP Team shall own all rights to Product and any formatted, predictive, or derivative data generated from the raw data. Notwithstanding this ownership, FSP Team shall not unreasonably withhold its consent for the City to use any raw, formatted, predictive, or derivative data the FSP Team receives across any portion of the entire FSP Pilot Project Demonstration pictured in Attachment A during and after the term of this Agreement. 6.1 At all times during the Term of this Agreement, the FSP Team must, at their sole expense: 6.1.1 temporarily disable, relocate, or remove (and later replace) any physical equipment attached to the City's traffic poles ("Equipment") in order to accommodate any City capital improvement project or other right-of-way work that may occur where the Equipment is located; 6.1.2 maintain all Equipment in good working order. 6.1.3 make all adjustments or modifications to the Equipment associated with data retrievals at no cost to the City throughout the term of Agreement. 6.2 City may require removal of the Equipment at any time during the Term of this Agreement. 6.3 Upon termination of this Agreement, the FSP Team must remove, at their sole cost, all Equipment. However, the City may relieve the FSP Team of these removal obligations if the City provides the FSP Team written notice before termination, or within 90 days after the Agreement terminates, accepting ownership of the Equipment. Section 7. Reporting FSP Team shall provide City with periodic reports of signal performance metrics, or Upon request of the City, as data become available. Section 8. Indemnification FSP Team will indemnify, defend, save, and hold harmless the City and its elected Page 4 of 13 officials, officers, employees, agents, and volunteers from all liability, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, and claims, including but not limited to claims that arise from or relate to (i) a breach of FSP Team' representations and warranties, (ii) any personal injury, death or property damage caused by any alleged act, omission, error, fault, mistake or negligence of FSP Team, its employees, agents, or representatives in connection with or incident to FSP Team' performance under or related to this Agreement, and (iii) the infringement of any patent, copyright, trademark, trade secret or other proprietary right of any third party by FSP Team' use of the City Data provided under this Agreement. This indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, employees or volunteers. City will cooperate reasonably in the defense of any action, and FSP Team shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. Section 9. Employee Payments and Indemnification 9.1 Pers Eligibility Indemnification. If FSP Team's employee(s) providing services under this Agreement claim, or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS") to be eligible for enrollment in payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the City. FSP Team's employees providing service under this Agreement shall not: (1) qualify for any compensation and benefit under PERS; (2) be entitled to any benefits under PERS; (3) enroll in PERS benefits; (4) receive any employer contributions paid by City for PERS benefits; or (5) be entitled to any other PERS-related benefit that would accrue to a City employee. FSP Team's employees hereby waive any claims to benefits or compensation described in this Section 9. This Section 9 applies to FSP Team notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary. 9.2 Limitation of City Liability. Any payment made to FSP Team under this Agreement shall be the full and complete compensation to which FSP Team and FSP Team's officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither FSP Team nor FSP Team's officers, employees, agents, ad subcontractors are entitled to any salary or wage, or retirement, health, leave or other fringe benefits applicable to City employees. The City will not make any federal Page 5 of 13 or state tax withholding on behalf of FSP Team. The City shall not be required to pay any workers' compensation insurance on behalf of FSP Team. 9.3 Indemnification for employee Payment. FSP Team agrees to defend and indemnify the City for any obligation, claim, suit, or demand for tax, retirement contribution including any contribution to PERS, social security, salary or wages, overtime payment, or workers' compensation payment which the City may be required to make on behalf of (1) FSP Team, (2) any employee of FSP Team, or (3) any employee of FSP Team construed to be an employee of the City, for work performed under this Agreement. This is a continuing obligation that survives the termination of this Agreement. Section 10. Workers' Compensation The FSP Team shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Labor Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the City and its officers, employees, and volunteers from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the city or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the FSP Team under this Agreement. Section 11. Insurance The FSP Team, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractor(s), when applicable, to purchase and maintain throughout the term of this Agreement, the following insurance policies: A. ❑ If checked, Professional Liability Insurance (error and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles. The policy shall name the City and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the City and its officers, agents, employees, and volunteers as additional insured, a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement Page 6 of 13 that shall be incorporated into the policy. D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of FSP Team's employees and employers; liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this agreement. E. The aforesaid policies shall constitute primary insurance as to the City, its officers, officials, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the City's Risk Manager, at the address listed in subsection G below, of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the FSP Team shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. The Certificate Holder for all policies of insurance required by this Section shall be: City of National City c/o Risk Manager 1243 National City Boulevard National City, CA 91950-4397 H. Insurance shall be written with only insurers authorizes to conduct business in California that hold a current policy holder's alphabetic and financial size category rating of not less that A:VII according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved by the City's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carries, they must include on the most recent List of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements. I. This Agreement shall not take effect until certificate(s)- or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the City's Risk Manager. If the FSP Team does not keep all insurance policies required by this Section 11 in full force and effect at all times during the term of this Agreement, the City may treat the failure to main the requisite insurance as a breach of this Agreement and terminate the agreement as provided herein. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the City, city reserves the right to modify the insurance requirements of this Section 11, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. K. If the FSP Team maintain broader coverage or higher limits (or both) that the minimum limits shown above, the City shall be entitled to the broader coverage or higher limits (or both) maintained by the FSP Team. Any available insurance proceeds in excess of the specified minimum limits of the Page 7 of 13 insurance and coverages hall be available to the City. City makes no warranties concerning the quality or accuracy of the data provided under this Agreement. City does not warrant it will be able to continuously provide the data without interruption and expressly reserves the right to discontinue the data stream at any time. Notwithstanding anything to the contrary herein, City reserves the right to immediately discontinue the City Data stream without notice and at City discretion upon evidence of tampering or other unauthorized interference with the City Data. Except as expressly provided for herein, City makes no other representations or warranties. Section 13. Limitation of Liability Nothing in this Agreement excludes or limits either Party's liability for: (a) fraud or fraudulent misrepresentation; (b) breach of confidentiality; (c) indemnification obligations under Section 8(ii) or Section 8(iii) above; (d) claims for personal injury, including death, or damage to real property or tangible personal property arising from the negligence, reckless conduct or intentional acts of a Party, its officers, employees or agents; or (e) matters that cannot be excluded or limited under applicable law. Section 14. Term Unless terminated earlier in accordance with Section 15, this Agreement will begin on the latest date of the authorized agent signature (the "Effective Date") and continue for one (1) year. The Term Agreement may be extended by mutual agreement of all Parties in writing. Section 15. Termination Each Party shall have the right to terminate this Agreement by providing written notice to the other Party within thirty (30) days, unless identified otherwise in this Agreement. Section 16. Data Destruction Upon termination of this Agreement, FSP Team shall destroy all raw data whatever form or medium, including all copies thereof. FSP Team shall destroy the data no later than thirty (30) days following termination of this Agreement. Section 17. Prevailing Wages State Prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720, 1720.2, 1720.3, 1720.4, and 1771, as amended. FSP Team is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. Section 18. Notices Absent notice to the contrary in writing, all communications to FSP Team shall be sent to: Page 8 of 13 San Diego Port Tenants Association 2390 Shelter Island Drive, Suite 210 San Diego, CA 92106 Attn: Sharon Cloward San Diego Unified Port District 3165 Pacific Highway San Diego, CA 92101 Attn: Philip Gibbons STC Traffic, Inc. 5865 Avenida Encinas, Suite 142-B Carlsbad, CA 92008 Attn: Jason Stack DENSO International America, Inc. San Diego Technical Center 2251 Rutherford Road, Suite 100 Carlsbad, CA 92008 Attn: Bryan Wells Absent notice to the contrary in writing, all communications to the City shall be sent to: 1243 National City Boulevard National City, CA 91950 Attn: Roberto Yano cc: City Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 cmo@nationalcityca.gov or at any other address as any Party may, from time to time, designate by notice given in compliance with this Section. Section 19. Assignment Neither Party shall assign, transfer, subcontract, or delegate all or any part of this Agreement, or any interest therein, without the other Party's prior written consent, which shall not be unreasonably withheld. Section 20. Agreement Binding This Agreement shall be binding upon the successors of City Agent, FSP Team Agent, FSP Team, or City and assigns of the Parties hereto. Page 9 of 13 Section 21. Personal Liability Nothing in this Agreement may be construed to create any personal liability on the part of any officer or agent of either Party to this Agreement. Section 22. Choice of Law This Agreement shall be governed in all respects by and construed under the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. Section 23. Choice of Forum The Parties agree to institute any litigation concerning the enforcement or interpretation of the Agreement in either state or federal court in the County of San Diego, State of California. FSP Team hereby consents to the personal jurisdiction of these courts, waives any objection to venue in these courts, and waives any claim that either of these courts is an inconvenient forum. In no way may this section or any other term of this Agreement be construed as a waiver by the City of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States, or otherwise, from any Claim or from the jurisdiction ofany court. Section 24. Waiver Any waiver of any breach of any condition or covenant herein contained to be kept and performed by either Party shall not be deemed or considered as a continuing waiver, and shall not operate to bar or prevent the non -breaching Party from declaring a default for any succeeding breach, either of the same condition or covenant or otherwise. Section 25. Severability If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect. Section 26. Interpretation of the Agreement The Parties acknowledge that each of the Parties have participated in the drafting of this Agreement. No Party shall be considered to be the drafter of this Agreement for the purposes of interpretation. Section 27. Parties in Interest Nothing herein shall be construed to be to the benefit of any third party, nor is it intended that any provision shall be for the benefit of any third party. Section 28. Force Majeure Neither Party will be liable for failure or delay in performance to the extent caused by circumstances beyond reasonable control. Page 10 of 13 Section 29. Entire Agreement This Agreement constitutes the entire agreement between the Parties. This Agreement supersedes all proposals and oral and written agreements between the Parties on this subject. No modifications, alterations, changes, or waiver to this Agreement or any of its terms shall be valid or binding unless accomplished by a written amendment signed by both Parties. The remainder of this page intentionally left blank Page 11 of 13 IN WITNESS OF THIS, the Parties hereby execute this Agreement through their authorized representatives. CITY OF NATION : - CITY, A M NICIPA Auth ure ate COORPORATION FSP Team Authorized Signature Date BA4//gV4W/9 Alejandra Sotelo-Solis Shardn Cloward Mayor APPROVED AS TO FORM: P. Morris -Jones y Robert i M. Con - ras Deput 'City Attorney President SDPTA L Authorized Signature /01:(,2e1//g Jason Stack President STC Traffic Inc. rized Signature / 64i/9 Date Bryan Wells Senior Manager Denso Page 12 of 13 Tenth Ave Marine Terminal Attachment A IMPERIAL AVE HARBOR BAY Int# Intersection 1 Harbor Dr & Cesar E. Chavez Pkwy 2 Harbor Dr & Sampson St 3 Harbor Dr & Schley St 4 Harbor Dr & 28th St 5 Harbor Dr & Belt St 6 Harbor Dr & 32nd St 7 Harbor Dr & Vesta St 8 Harbor Dr & 8th St 9 Harbor Dr & Civic Center Dr 10 Tidelands Ave & 19th St 11 Tidelands Ave & Bay Marina Dr Legend - - Study Area • Dole Company • Four Seasons Transfer Facility 0 Port Terminals Existing Traffic Signal Jurisdiction • City of San Diego • Caltrans District 11 • National City • • • • • • National City Marine Termina Page 13 of 13 • • • • ti OCEAN NEW BLVD • • • t t • ■ IMPERIAL ONE OA- RESOLUTION NO. 2019 - 145 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE THE COOPERATIVE AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND SAN DIEGO PORT TENANTS ASSOCIATION, STC TRAFFIC, INC. AND DENSO INTERNATIONAL AMERICA (FSM TEAM) FOR ACCESS TO CITY OF NATIONAL CITY TRAFFIC SIGNAL DATA FOR FREIGHT SIGNAL PRIORITY PILOT PROJECT DEMONSTRATION WHEREAS, on March 16, 2016, San Diego Port Tenants Association submitted the "Port of San Diego Sustainable Freight Demonstration Project" (GFO 15-604: Freight Transportation Projects at California Seaports) to the California Energy Commission (CEC); and WHEREAS, the project was awarded and funded through the CEC's Alternative and Renewable Fuel and Vehicle Technology Program: and WHEREAS, the project includes a demonstration of Freight Signal Priority (FSP) which provides traffic signal priority for commercial vehicles in order to reduce stops, fuel consumption and related emissions, and to improve travel time reliability and traffic safety at intersections; and WHEREAS, in order to achieve the FSP project goals and success, the City of National City with the San Diego Port Tenants Association, STC Traffic, Inc. and DENSO International America (FSP Team) have proposed a FSP Pilot Project Demonstration (FSP Pilot Project) for corridor traffic signal operations beginning at Harbor Drive and Cesar E. Chavez Parkway and ending at Tidelands Avenue and Bay Marina Drive; and WHEREAS, the FSP Pilot Project will study potential to reduce emissions of air pollutants and greenhouse gas emissions from freight movement along Harbor Drive; and WHEREAS, in order to facilitate the FSP Pilot Project, a Cooperative Agreement must be signed with other public entities to allow for the collection and sharing of Real Time Traffic Signal Data and other related data which would allow the FSP Team to collaborate on developing strategies and systems to use for maximizing the efficiency of transportation end users and the overall capacity of existing transportation networks; and WHEREAS, this Cooperative Agreement would allow the FSP Team to install physical equipment in the City's right-of-way that will allow the collection of Real Time Traffic Signal Data and other related data; and WHEREAS, the physical equipment may be removed and relocated if necessary by the FSP Team at their sole expense at the City's discretion; and WHEREAS, authorization of this Cooperative Agreement would permit the FSP Team to obtain access to the Real Time Traffic Signal Data in exchange for providing related inventories, signal performance metrics, and other formatted data products, subject to the terms and conditions of the Cooperative Agreement which will allow the FSP Team to use the data to improve freight operations through implementation of the FSP technology to improve truck freight performance or efficiency and ride comfort for drivers or operators. Resolution No. 2019 — 145 Page Two NOW, THEREFORE, the City Council of the City of National City authorizes the Mayor to Execute the Cooperative Agreement between the City of National City and San Diego Port Tenants Association, STC Traffic, Inc. and DENSO International America (FSM Team) for Access to City of National City Traffic Signal Data for Freight Signal Priority Pilot Project Demonstration. PASSED and ADOPTED this 5th day of , v- a ber, 2019. Aleja '• r. :tel: olis, Mayor ATTES Michael R. ►alla, City Clerk APPROVED AS TO FORM: . Morris -Jo es ity Attorney Passed and adopted by the Council of the City of National City, California, on November 5, 2019 by the following vote, to -wit: Ayes: Councilmembers Morrison, Quintero, Rios, Sotelo-Solis. Nays: None. Absent: Cano. Abstain: None. AUTHENTICATED BY: ALEJANDRA SOTELO-SOLIS Mayor of the City of National City, California MICHAEL R. DALLA City Clerk of the City of National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2019-145 of the City of National City, California, passed and adopted by the Council of said City on November 5, 2019. City Clerk of the City of National City, California By: CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: November 5, 2019 AGENDA ITEM NO. 12 _M TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute the Cooperative Agreement between the City of National City and San Diego Port Tenants Association, STC Traffic, Inc. and DENSO International America (FSM Team) for Access to City of National City Traffic Signal Data for Freight Signal Priority Pilot Project Demonstration. PREPARED BY: Luca Zappiello, Assistant Civil Engineer , PHONE: 619-336-4360 ole EXPLANATION: See attached. DEPARTMENT: Engineering/Public Works APPROVED BY: IANCIAL STATEMENT: ACCOUNT NO. N/A ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: APPROVED: APPROVED: Finance MIS STAFF RECOMMENDATION: Adopt Resolution authorizing the Mayor to execute the Cooperative Agreement between the City of National City and the FSP Team for Access to City Traffic Signal Data for Freight Signal Priority Pilot Project Demonstration. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: 1. Explanation 2. Attachment A 3. Cooperative Agreement 4. Resolution EXPLANATION On March 16, 2016, San Diego Port Tenants Association submitted the "Port of San Diego Sustainable Freight Demonstration Project" (GFO 15-604: Freight Transportation Projects at California Seaports) to the California Energy Commission (CEC). The project was awarded and is funded through the CEC's Alternative and Renewable Fuel and Vehicle Technology Program. The project includes a demonstration of Freight Signal Priority (FSP) — providing traffic signal priority for commercial vehicles in order to reduce stops, fuel consumption and related emissions, and to improve travel time reliability and traffic safety at intersections. In order to achieve the FSP project goals and success, the City of National City with the San Diego Port Tenants Association, STC Traffic, Inc. and DENSO International America (FSP Team) have proposed a FSP Pilot Project Demonstration (FSP Pilot Project) for corridor traffic signal operations beginning at Harbor Drive and Cesar E. Chavez Parkway and ending at Tidelands Avenue and Bay Marina Drive, as shown in Attachment A. In order to facilitate the FSP Pilot Project, a Cooperative Agreement must be signed with other public entities to allow for the collection and sharing of Real Time Traffic Signal Data and other related data. This Cooperative Agreement would allow the FSP Team to collaborate to develop strategies and systems for use in maximizing the efficiency of transportation end users and thus the overall capacity of existing transportation networks. The FSP Pilot Project will study potential to reduce emissions of air pollutants and greenhouse gas emissions from freight movement along Harbor Drive. The City Data, as defined in the Cooperative Agreement may be available to the FSP Team at no cost. Furthermore, City Data is not confidential and does not identify transportation end users. In addition, this Cooperative Agreement would allow the FSP Team to install physical equipment in the City's right-of-way that will allow the collection of Real Time Traffic Signal Data and other related data. It should be noted that physical equipment will be removed and relocated if necessary by the FSP Team at their sole expense at the City's discretion. By authorizing this Cooperative Agreement, the FSP Team would be permitted to obtain access to the Real Time Traffic Signal Data in exchange for providing related inventories, signal performance metrics, and other formatted data products, subject to the terms and conditions of the Cooperative Agreement. This will allow the FSP Team to use the data to improve freight operations through implementation of the FSP technology to improve -1- truck freight performance or efficiency and ride comfort for drivers or operators. Additionally, it would provide information to the driver or operator, monitor driving behaviors or apply automated features. -2- COOPERATIVE AGREEMENT Authorization for FSP Team Access to City of National City Traffic Signal Data for Freight Signal Priority Pilot Project Demonstration This COOPRATI VE AGREEMENT ("Agreement") is entered into this November 5, 2019 between the CITY OF NATIONAL CITY, a municipal corporation, herein referred to as "City", and San Diego Port Tenants Association, a California corporation ("SDPTA"), STC Traffic, Inc., a California corporation ("STC") and DENSO International America, Inc., a Delaware corporation ("DENSO"), collectively referred to as "FSP Team". Both the City and FSP Team are each sometimes referred in the agreement as "Party" and both the City and FSP Team are sometimes referred in this Agreement together as "Parties". RECITALS WHEREAS, FSP Team has proposed a Freight Signal Priority (FSP) Pilot Project Demonstration for corridor traffic signal operations beginning at Harbor Drive and Cesar E. Chavez Parkway and ending at Tidelands Avenue and Bay Marina Drive as depicted in Attachment A. WHEREAS, the FSP Team intends to sign Cooperative Agreements with other public entities such as Caltrans, the City of San Diego, and the Port of San Diego to ensure the proper execution of the FSP Pilot Project as a whole; WHEREAS, the City's portion of the FSP Pilot Project will run along Harbor Drive from Northern City Limits to Bay Marina Drive in the National City; WHEREAS, FSP Team is collaborating to develop strategies and systems for use in maximizing the efficiency of transportation end users and thus the overall capacity of existing transportation networks; WHEREAS, The FSP Team is also coordinating the demonstration of the FSP Pilot Project with the San Diego Unified Port District to study potential to reduce emissions of air pollutants and greenhouse gas emissions from freight movement along Harbor Drive. WHEREAS, City collects Real Time Traffic Signal Data and other related data; WHEREAS, FSP Team's proposed demonstration will require access to City Data; WHEREAS, the City Data may be made available to FSP Team at no cost to City; WHEREAS, the City Data are not confidential, nor identify any transportation end user specifically in any manner; WHEREAS, FSP Team desires permission to obtain access to the Real Time Traffic Page 1 of 13 -4- X, Tenth Ave Marine Terminal Attachment A AIAANNTEr rrENLL we HARBOR BAY Int# Intersection 1 Harbor Dr & Cesar E. Chavez Pkwy 2 Harbor Dr & Sampson St 3 Harbor Dr & Schley St 4 Harbor Dr & 28th St 5 Harbor Dr & Belt St 6 Harbor Dr & 32nd St 7 Harbor Dr & Vesta St 8 Harbor Dr & 8th St 9 Harbor Dr & Civic Center Dr 10 Tidelands Ave & 19th St 11 Tidelands Ave & Bay Marina Dr Legend - Study Area ® Dole Company ■ Four Seasons Transfer Facility Port Terminals Existing Traffic Signal Jurisdiction • City of San Diego • Caltrans District 11 National City • . . • OCEAN VIEW KW 1 ies • 1 1 Is 1 g 1 1 National City Marine Termina ` 1 1 1 1 1 t C 1 ■ ,IE[ll*l/IE a 111 -3- Signal Data for use in conjunction with its demonstration; WHEREAS, FSP Team agrees to provide related inventories, signal performance metrics, and other formatted data products in exchange for access to these Real Time Traffic Signal Data; WHEREAS, the City agrees to provide FSP Team with Real Time Traffic Data subject to the terms and conditions in this Agreement; NOW THEREFORE, FSP Team and the City agree as follows: Section 1. Defmitions "City Data" means collectively, Real Time Traffic Signal Data, Traffic Signal Timing Plan, and any other data provided to FSP Team by City under this Agreement. "Real Time Traffic Signal Data" means signal status and states, demand status and states, and other information available from the traffic signal controller or City's central signal system or City's Advanced Traffic Management System (ATMS). "Traffic Signal Timing Data" means signal timing plans, as -built intersection design, traffic signal plans, signal control plans, or other documents that identify the time -of -day plans. "Product" means the data derived from the Real Time Traffic Signal data and Traffic Signal Timing Data. Section 2. Authorized Representatives For the City, _ ROBERTO YANO_ is designated by City as an authorized representative (City Agent). For the FSP Team, _ SHARON CLOWARD_ is designated by SDPTA as an authorized representative (SDPTA Agent). _ JASON STACK_ is designated by STC Traffic as an authorized representative (STC Agent). _ BRYAN WELLS_ is designated by FSP Team as an authorized representative (DENSO Agent). Section 3. Purpose and Scope FSP Team desires access to the Real Time Traffic Signal Data, to include signal status and states, demand status and states, and other information available from traffic signal controller or ATMS. In addition, FSP Team desires access to time of day signal timing parameters. FSP Team will use these data to improve freight operations through Page 2 of 13 -5- implementing Freight Signal Priority (FSP) technology and demonstrate the benefits along Harbor Drive from Northern City Limits to Bay Marina Drive. The intended use of the Product is for connected vehicle applications to improve the truck freight performance or efficiency, improve ride comfort for driver or operator, provide information to the driver or operator, monitor driving behaviors, or apply to automated features. FSP Team shall limit its use of the derived Product for applications that do not violate local, state, or federal laws, or uses that will not be used in a manner to encourage undesirable driver behavior for the City. The Product is not permitted for traffic law enforcement. Section 4. Access of Traffic Signal Timing Data City hereby grants FSP Team access to Traffic Signal Timing Data. FSP Team will work with City Agent to obtain data in the most efficient and non -intrusive manner from City, which may include access to City central system or ATMS. FSP Team will be provided with access to this Traffic Signal Timing Data at no cost, except FSP Team will be responsible for any costs associated with making the data available. Before installation of the Equipment (defined in Section 6 below), the FSP Team must also submit a proposed workplan or some other proposed schedule by which the FSP Team plans to deploy the Equipment (defined in Section 6 below) throughout the City. FSP Team shall properly install any associated software necessary to generate the Traffic Signal Timing Data at no cost to the City. If the City elects to retain the Equipment, as described in Section 6, the FSP Team will forward to City all software licenses, credentials, and other information necessary for the continued operation of the Equipment. If the City so retains the Equipment, the Parties will meet and confer in good faith about whether the City can also assume the cost of continued operation of such software. City reserves the right to limit access to such data to what is reasonably necessary to accomplish FSP Team's FSP Pilot Project Demonstration. Section 5. Access of Real Time Traffic Signal Data City hereby grants FSP Team non-exclusive, non -transferable, non-sublicensable, limited, and royalty free access to obtain and utilize its Real Time Traffic Signal Data pursuant to the terms of this Agreement. FSP Team will be provided with access to this Real Time Signal Data at no cost, except FSP Team will be responsible for any costs associated with making the data available. FSP Team will be responsible for all vendor costs associated with City's ATMS vendor making system modifications to make the Real Time Signal Data available. FSP Team shall have the right to use the data in any manner it deems appropriate in furtherance of its business purposes, including without limitation providing the derivatives of the data and Product to third parties, subject to the terms of this Agreement. The City is subject to the Public Records Act and this Agreement is not intended to Page 3 of 13 -6- impede or impair City's requirements or obligations under that Act. If City receives a request for a copy of any information or documentation which FSP Team has indicated, by written notice to City, FSP Team considers confidential and proprietary, City shall notify FSP Team so that so that FSP Team may, at FSP Team's sole cost and expense, seek relief from compliance with such request. City reserves the right to limit access to such data to what is reasonably necessary to accomplish FSP Team's technology demonstration. Section 6. Ownership of and Rights to Data & Equipment The City retains all rights to the raw data, or Real Time Traffic Signal Data, being provided to FSP Team from the City, and from Caltrans, the City of San Diego, and the Port of San Diego. FSP Team shall own all rights to Product and any formatted, predictive, or derivative data generated from the raw data. Notwithstanding this ownership, FSP Team shall not unreasonably withhold its consent for the City to use any raw, formatted, predictive, or derivative data the FSP Team receives across any portion of the entire FSP Pilot Project Demonstration pictured in Attachment A during and after the term of this Agreement. 6.1 At all times during the Term of this Agreement, the FSP Team must, at their sole expense: 6.1.1 temporarily disable, relocate, or remove (and later replace) any physical equipment attached to the City's traffic poles ("Equipment") in order to accommodate any City capital improvement project or other right-of-way work that may occur where the Equipment is located; 6.1.2 maintain all Equipment in good working order. 6.1.3 make all adjustments or modifications to the Equipment associated with data retrievals at no cost to the City throughout the term of Agreement. 6.2 City may require removal of the Equipment at any time during the Term of this Agreement. 6.3 Upon termination of this Agreement, the FSP Team must remove, at their sole cost, all Equipment. However, the City may relieve the FSP Team of these removal obligations if the City provides the FSP Team written notice before termination, or within 90 days after the Agreement terminates, accepting ownership of the Equipment. Section 7. Reporting FSP Team shall provide City with periodic reports of signal performance metrics, or Upon request of the City, as data become available. Section 8. Indemnification FSP Team will indemnify, defend, save, and hold harmless the City and its elected Page 4 of 13 -7- officials, officers, employees, agents, and volunteers from all liability, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, and claims, including but not limited to claims that arise from or relate to (i) a breach of FSP Team' representations and warranties, (ii) any personal injury, death or property damage caused by any alleged act, omission, error, fault, mistake or negligence of FSP Team, its employees, agents, or representatives in connection with or incident to FSP Team' performance under or related to this Agreement, and (iii) the infringement of any patent, copyright, trademark, trade secret or other proprietary right of any third party by FSP Team' use of the City Data provided under this Agreement. This indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers, employees or volunteers. City will cooperate reasonably in the defense of any action, and FSP Team shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. Section 9. Employee Payments and Indemnification 9.1 Pers Eligibility Indemnification. If FSP Team's employee(s) providing services under this Agreement claim, or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS") to be eligible for enrollment in payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the City. FSP Team's employees providing service under this Agreement shall not: (1) qualify for any compensation and benefit under PERS; (2) be entitled to any benefits under PERS; (3) enroll in PERS benefits; (4) receive any employer contributions paid by City for PERS benefits; or (5) be entitled to any other PERS-related benefit that would accrue to a City employee. FSP Team's employees hereby waive any claims to benefits or compensation described in this Section 9. This Section 9 applies to FSP Team notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary. 9.2 Limitation of City Liability. Any payment made to FSP Team under this Agreement shall be the full and complete compensation to which FSP Team and FSP Team's officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither FSP Team nor FSP Team's officers, employees, agents, ad subcontractors are entitled to any salary or wage, or retirement, health, leave or other fringe benefits applicable to City employees. The City will not make any federal Page 5 of 13 -8- or state tax withholding on behalf of FSP Team. The City shall not be required to pay any workers' compensation insurance on behalf of FSP Team. 9.3 Indemnification for employee Payment. FSP Team agrees to defend and indemnify the City for any obligation, claim, suit, or demand for tax, retirement contribution including any contribution to PERS, social security, salary or wages, overtime payment, or workers' compensation payment which the City may be required to make on behalf of (1) FSP Team, (2) any employee of FSP Team, or (3) any employee of FSP Team construed to be an employee of the City, for work performed under this Agreement. This is a continuing obligation that survives the termination of this Agreement. Section 10. Workers' Compensation The FSP Team shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Labor Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the City and its officers, employees, and volunteers from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the city or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the FSP Team under this Agreement. Section 11. Insurance The FSP Team, at its sole cost and expense, shall purchase and maintain, and shall require its subcontractor(s), when applicable, to purchase and maintain throughout the term of this Agreement, the following insurance policies: A. D If checked, Professional Liability Insurance (error and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles. The policy shall name the City and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the City and its officers, agents, employees, and volunteers as additional insured, a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement Page 6 of 13 -9- that shall be incorporated into the policy. D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of FSP Team's employees and employers; liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this agreement. E. The aforesaid policies shall constitute primary insurance as to the City, its officers, officials, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the City's Risk Manager, at the address listed in subsection G below, of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the FSP Team shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. The Certificate Holder for all policies of insurance required by this Section shall be: City of National City c/o Risk Manager 1243 National City Boulevard National City, CA 91950-4397 H. Insurance shall be written with only insurers authorizes to conduct business in California that hold a current policy holder's alphabetic and financial size category rating of not less that A:VII according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved by the City's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carries, they must include on the most recent List of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements. I. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the City's Risk Manager. If the FSP Team does not keep all insurance policies required by this Section 11 in full force and effect at all times during the term of this Agreement, the City may treat the failure to main the requisite insurance as a breach of this Agreement and terminate the agreement as provided herein. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the City, city reserves the right to modify the insurance requirements of this Section 11, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. K. If the FSP Team maintain broader coverage or higher limits (or both) that the minimum limits shown above, the City shall be entitled to the broader coverage or higher limits (or both) maintained by the FSP Team. Any available insurance proceeds in excess of the specified minimum limits of the Page 7 of 13 insurance and coverages hall be available to the City. City makes no warranties concerning the quality or accuracy of the data provided under this Agreement. City does not warrant it will be able to continuously provide the data without interruption and expressly reserves the right to discontinue the data stream at any time. Notwithstanding anything to the contrary herein, City reserves the right to immediately discontinue the City Data stream without notice and at City discretion upon evidence of tampering or other unauthorized interference with the City Data. Except as expressly provided for herein, City makes no other representations or warranties. Section 13. Limitation of Liability Nothing in this Agreement excludes or limits either Party's liability for: (a) fraud or fraudulent misrepresentation; (b) breach of confidentiality; (c) indemnification obligations under Section 8(ii) or Section 8(iii) above; (d) claims for personal injury, including death, or damage to real property or tangible personal property arising from the negligence, reckless conduct or intentional acts of a Party, its officers, employees or agents; or (e) matters that cannot be excluded or limited under applicable law. Section 14. Term Unless terminated earlier in accordance with Section 15, this Agreement will begin on the latest date of the authorized agent signature (the "Effective Date") and continue for one (1) year. The Term Agreement may be extended by mutual agreement of all Parties in writing. Section 15. Termination Each Party shall have the right to terminate this Agreement by providing written notice to the other Party within thirty (30) days, unless identified otherwise in this Agreement. Section 16. Data Destruction Upon termination of this Agreement, FSP Team shall destroy all raw data whatever form or medium, including all copies thereof. FSP Team shall destroy the data no later than thirty (30) days following termination of this Agreement. Section 17. Prevailing Wages State Prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720, 1720.2, 1720.3, 1720.4, and 1771, as amended. FSP Team is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. Section 18. Notices Absent notice to the contrary in writing, all communications to FSP Team shall be sent to: Page 8 of 13 -11- San Diego Port Tenants Association 2390 Shelter Island Drive, Suite 210 San Diego, CA 92106 Attn: Sharon Cloward San Diego Unified Port District 3165 Pacific Highway San Diego, CA 92101 Attn: Philip Gibbons STC Traffic, Inc. 5865 Avenida Encinas, Suite 142-B Carlsbad, CA 92008 Attn: Jason Stack DENSO International America, Inc. San Diego Technical Center 2251 Rutherford Road, Suite 100 Carlsbad, CA 92008 Attn: Bryan Wells Absent notice to the contrary in writing, all communications to the City shall be sent to: 1243 National City Boulevard National City, CA 91950 Attn: Roberto Yano cc: City Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 cmo@nationalcityca.gov or at any other address as any Party may, from time to time, designate by notice given in compliance with this Section. Section 19. Assignment Neither Party shall assign, transfer, subcontract, or delegate all or any part of this Agreement, or any interest therein, without the other Party's prior written consent, which shall not be unreasonably withheld. Section 20. Agreement Binding This Agreement shall be binding upon the successors of City Agent, FSP Team Agent, FSP Team, or City and assigns of the Parties hereto. Page 9 of 13 -12- Section 21. Personal Liability Nothing in this Agreement may be construed to create any personal liability on the part of any officer or agent of either Party to this Agreement. Section 22. Choice of Law This Agreement shall be governed in all respects by and construed under the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. Section 23. Choice of Forum The Parties agree to institute any litigation concerning the enforcement or interpretation of the Agreement in either state or federal court in the County of San Diego, State of California. FSP Team hereby consents to the personal jurisdiction of these courts, waives any objection to venue in these courts, and waives any claim that either of these courts is an inconvenient forum. In no way may this section or any other term of this Agreement be construed as a waiver by the City of any form of defense or immunity, whether it is sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States, or otherwise, from any Claim or from the jurisdiction ofany court. Section 24. Waiver Any waiver of any breach of any condition or covenant herein contained to be kept and performed by either Party shall not be deemed or considered as a continuing waiver, and shall not operate to bar or prevent the non -breaching Party from declaring a default for any succeeding breach, either of the same condition or covenant or otherwise. Section 25. Severability If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect. Section 26. Interpretation of the Agreement The Parties acknowledge that each of the Parties have participated in the drafting of this Agreement. No Party shall be considered to be the drafter of this Agreement for the purposes of interpretation. Section 27. Parties in Interest Nothing herein shall be construed to be to the benefit of any third party, nor is it intended that any provision shall be for the benefit of any third party. Section 28. Force Majeure Neither Party will be liable for failure or delay in performance to the extent caused by circumstances beyond reasonable control. Page 10 of 13 -13- Section 29. Entire Agreement This Agreement constitutes the entire agreement between the Parties. This Agreement supersedes all proposals and oral and written agreements between the Parties on this subject. No modifications, alterations, changes, or waiver to this Agreement or any of its terms shall be valid or binding unless accomplished by a written amendment signed by both Parties. The remainder of this page intentionally left blank. Page 11 of 13 -14- IN WITNESS OF THIS, the Parties hereby execute this Agreement through their authorized representatives. CITY OF NATIONAL CITY, A MUNICIPAL Authorized Signature Date Alejandra Sotelo-Solis Mayor APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney COORPORATION FSP Team Authorized Signature ai•dn C /0////q President SDPTA Authorized Signature Dae By: Roberto M. Contreras Jason Stack Depot) City Attorney President S FC Traffic Inc. care !!�� /O/}�� Auth zed Signature Date Bryan Wells/geoi 1.taI4 t„v e Senior Manager Denso/R+p,c Page 12 of 13 .•. .r ..• .:.01•1YW,0.,fteaO16. '%'.# 'r.CY.V44J/'+40.4......ww+w...a •.. a:x..we.t...v..�. ..x .. .�....... .�,.u..u. w -15- • Tenth Ave Marine Terminal • Attachment A WAKE,' sr IMPERIAL AVE HARBOR BAY Int# tntersection 1 Harbor Dr & Cesar E. Chavez Pkwy 2 Harbor Dr & Sampson St 3 Harbor Dr & Schley St 4 Harbor Dr & 28th St 5 Harbor Dr & Belt St 6 Harbor Dr & 32nd St 7 Harbor Dr & Vesta St 8 Harbor Dr & 8th St 9 Harbor Dr & Civic Center Dr 10 Tidelands Ave & 19th St 11 Tidelands Ave & Bay Marina Dr Legend - - Study Area ■ Dole Company • Four Seasons Transfer Facility Port Terminals Existing Traffic Signal Jurisdiction • City of San Diego • Caltrans District 11 D National City NATIONAL AVE • • REL- T. • • • OCEAN VIEW RIVO National City Marine Termina + t Page 13 of 13 IMPERIAL AVE -16- RESOLUTION NO. 2019 - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE THE COOPERATIVE AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND SAN DIEGO PORT TENANTS ASSOCIATION, STC TRAFFIC, INC. AND DENSO INTERNATIONAL AMERICA (FSM TEAM) FOR ACCESS TO CITY OF NATIONAL CITY TRAFFIC SIGNAL DATA FOR FREIGHT SIGNAL PRIORITY PILOT PROJECT DEMONSTRATION WHEREAS, on March 16, 2016, San Diego Port Tenants Association submitted the "Port of San Diego Sustainable Freight Demonstration Project" (GFO 15-604: Freight Transportation Projects at California Seaports) to the California Energy Commission (CEC); and WHEREAS, the project was awarded and funded through the GEC's Alternative and Renewable Fuel and Vehicle Technology Program; and WHEREAS, the project includes a demonstration of Freight Signal Priority (FSP) which provides traffic signal priority for commercial vehicles in order to reduce stops, fuel consumption and related emissions, and to improve travel time reliability and traffic safety at intersections; and WHEREAS, in order to achieve the FSP project goals and success, the City of National City with the San Diego Port Tenants Association, STC Traffic, Inc. and DENSO International America (FSP Team) have proposed a FSP Pilot Project Demonstration (FSP Pilot Project) for corridor traffic signal operations beginning at Harbor Drive and Cesar E. Chavez Parkway and ending at Tidelands Avenue and Bay Marina Drive; and WHEREAS, the FSP Pilot Project will study potential to reduce emissions of air pollutants and greenhouse gas emissions from freight movement along Harbor Drive; and WHEREAS, in order to facilitate the FSP Pilot Project, a Cooperative Agreement must be signed with other public entities to allow for the collection and sharing of Real Time Traffic Signal Data and other related data which would allow the FSP Team to collaborate on developing strategies and systems to use for maximizing the efficiency of transportation end users and the overall capacity of existing transportation networks; and WHEREAS, this Cooperative Agreement would allow the FSP Team to install physical equipment in the City's right-of-way that will allow the collection of Real Time Traffic Signal Data and other related data; and WHEREAS, the physical equipment may be removed and relocated if necessary by the FSP Team at their sole expense at the City's discretion; and WHEREAS, authorization of this Cooperative Agreement would permit the FSP Team to obtain access to the Real Time Traffic Signal Data in exchange for providing related inventories, signal performance metrics, and other formatted data products, subject to the terms and conditions of the Cooperative Agreement which will allow the FSP Team to use the data to improve freight operations through implementation of the FSP technology to improve truck freight performance or efficiency and ride comfort for drivers or operators. Resolution No. 2019 — Page Two NOW, THEREFORE, the City Council of the City of National City authorizes the Mayor to Execute the Cooperative Agreement between the City of National City and San Diego Port Tenants Association, STC Traffic, Inc. and DENSO International America (FSM Team) for Access to City of National City Traffic Signal Data for Freight Signal Priority Pilot Project Demonstration. PASSED and ADOPTED this 5th day of November, 2019. Alejandra Sotelo-Solis, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk SAN DIEGO PORT TENANTS ASSOCIATION (SDPTA), STC TRAFFIC, AND DENSO INTERNATIONAL AMERICA (FSP TEAM) Cooperative Agreement Access to City's Traffic Signal Data for Freight Signal Priority Pilot Project Demonstration Judy Hernandez (Engineering/Public Works) forwarded duplicate original Agreements to all Parties.