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HomeMy WebLinkAbout- CONTRACT - CONTRACT -JOINT PROCUREMENT - WEB BASED PROGRAM AGREEMENT TbisAGREEMENT is made and entered into this v?D day of 95�-6 , 2007, by and between Implicit PurchasePoolmg Solutions, L.P. (hereinafter referred to as "CONSULTANT') and City of Fort Collins (hereinafter referred to as "CLIENT"), for the purchase and maintenance of a software license for the Purchase Pooling Solutions Application delivered viawww transitpool com (hereinafter referred to as`Servicesr). WITNESSETH: WHEREAS, CLIENT is panccipatmgas an approved agency in the Federal TransitAdmmistration's (FTA) Cooperative ProcurementPilot Program (CPPP) as defined in Section 166 ofPublic LawNo 108-109, the Transportation, Treasury, and Independent Agencies Appropriations Act of 2004 and Section 167 of the Transportation,Treasuryand Independent Agencies Appropriations Act, 2005, and WHEREAS, CLIENT intends to procure heavy duty transit buses with other transit agencies participating in the CPPPutihzing a joint specification aid joint Request for Proposal (RFP), and WHEREAS, the CPPP directs cooperating agencies to maximize the use of Internet based software technology to develop specifications, aggregate equipment requirements, create cooperative specifications, and generatea cooperative RFP package, and WHEREAS, the CONSULTANT is experienced and is knowledgeable and can provide such a system, NOW,THEREFORE, in consideration ofthe promises, terms, and conditions contained herein, the parties agree as follows PART I - RESPONSIBILITIES OF CONSULTANT SEC 101 The CONSULTANTS Services consist of those services enumerated herein All of such Services shall be performed by the CONSULTANT, the CONSULTANTS employees, and any properly identified subcontractors or subconsultants tithe CONSULTANT. SEC. 102 The CONSULTANT shall be responsible and liable for the professional quality, timely completion, and coordination of all Services furnished by its subcontractors,subconsultants, principals,officers,employees, and agents under this AGREEMENT. The CONSULTANT shall perform its Services pursuant to this AGREEMENTinatechnically sound manner. The CONSULTANT warrants that its Services shall be of a professional quality and will conform to generallyaccepted industry practices The CONSULTANT also warrants that its Services, and CLIENT`s use of them, do not infringe the patent, trademark, copyright or other intellectual property or puprietary right of any third party. SEC_ 103 The CONSULTANT shall complete the Services, as described in the Scope of Work, which is attached hereto as Exhibit "A" and by reference incorporated into and made a part of this AGREEMENT, in a timely manner,as specified in this AGREEMENT SEC 104 The CONSULTANT agrees that all work comprising the Services will be performed in conformancewith applicable Federal, state, and local statutes, codes, ordinances, resolutions (080907) and regulations The CONSULTANT shall be responsible for complying with any and all such requirements at its sole cost and expense and without any increase in the price or timeframes specified in this AGREEMENT due to such compliance. If, during the term of this AGREEMENT, there are any changes or new laws, ordinances, statutes, rules or regulations not known or foreseeable at the time of signing this AGREEMENT which become effective and which affect the cost or time ofperformance of the AGREEMENT, the CONSULTANT shall immediately notify CLIENT in wnting and submit detailed documentation of such effect in terns of both time and cost of performing the AGREEMENT Except for an extension of time, no payment or compensation of any kind shall be made to the CONSULTANT for any costs incurred by such changed or new laws, ordinances, statutes, rules or regulations, including but not limited to those which may anse due to delay, disruption, acceleration or inefficiency However, CLIENT may electto review the cost impact, and may, in its sole discretion, make an equitable adjustment in compensation for an increase or decrease in tune, labor, materials and fees If any discrepancy or mconsistencyshall be discovered between this AGREEMENT and any law, ordinance, regulation, order or decree, CONSULTANT shall immediately report the same in writing to CLIENT who will issue such instructions as may be necessary. SEC 105 The CONSULTANT shall, without additional compensation, correct or revise any deficiencies, errors or omissions caused bythe CONSULTANT in its analysis, reports, and services in connection with the delivery of Services pursuant to this AGREEMENT Itisalso understood and agreed by both parties that if any error is found, the CONSULTANT will expeditiously make the necessary correctionpt no expense to CLIENT SEC 106 It is agreed that any and all documents prepared and submitted by the CONSULTANT to CLIENT, and all information required of the CONSULTANT by this AGREEMENT, shall become the property of CLIENT with the exception of user manuals and training materials, which shall remain the property of CONSULTANT In the event ofhe termination ofthis AGREEMENT, all reports, documents and files related to the Services shall become the property of CLIENT, and the CONSULTANT agrees to surrender all such documents to CLIENT The CONSULTANT may retain copies of information, reproducible copies ofdrawuigs and copies of other documents SEC. 107 The CONSULTANT will furnish to CLIENT, in a timely manner, copies of all correspondence to regulatory agencies, consulting firms, contractors, and local, State and Federal agencies relating to the Services performed under this AGREEMENT. SEC 108 The CONSULTANT agrees that its officers and employees will cooperate with CLIENT in the performanceof Services under this AGREEMENT and will be available for consultation with CLIENT at reasonable times with advance notice SEC 109 The rights and remedies of CLIENT provided for under this Section are in addition to any other rights and remedies prodded by law or under other sections of this AGREEMENT. (08a9a7) SEC. 110 The CONSULTANT s Services under this AGREEMENT shall be performed expeditiously and with the generally accepted professional skill and a level of care required for the orderly progress of the Services. SEC III The obligations and Services of subcontractors and subconsultants to the CONSULTANT shall be undertaken and performed in a professional manner and in the interest of CLIENT, and the CONSULTANT shall remain fully responsible for the proper performance of all obligations and Services under this AGREEMENT, notwithstanding the fact that such performance may be undertaken in part by a subcontractor or subconsultant to the CONSULTANT All subcontracts will incorporate in full all appropriate conditions and terms as set forth in this AGREEMENT SEC. 112 The CONSULTANT shall assign David Hartwick as the Project Manager to manage the performance of the CONSULTANT's Services on this project Should theProlectManager of the CONSULTANT be unable to complete his responsibility for any reason, the CONSULTANT shall replace him/her with a competent person subject to CLIENTS approval, which shall not be unreasonablywitliheld PART H - RESPONSIBILITIES OF CLIENT SEC 201 CLIENT agrees that its officers, employees, and representatives will cooperate with CONSULTANT in the performance of its Services under this AGREEMENT and will be availablefor consultationwith CONSULTANT at reasonable tunes with advance notice so as to not conflict with otter responsibilities SEC. 202 The Services performed by CONSULTANT under this AGREEMENT shall be subject to periodic review by CLIENT and/or its General Manager, CEO or equivalent executive, CLIENTS General Managermay delegate any oral] of the General Manager's responsibilities under thisAGREEMENT to appropriate staff members, and shall so inform CONSULTANT by written notice before the effective date of each delegation. SEC 203 To prevent an unreasonable delay in the CONSULTANT's work, the General Manager will endeavor to examine all reports and other documents and will render decisions and provide comments and advice to the CONSULTANT in a timely manner to avoid unreasonable delay It is understood that the General Manager's decisions, comments and advice do not relieve CONSULTANT from the responsibilityforthe professional quality of all work delivered and Services performed under this AGREEMENT SEC 204 CLIENT shall, without chargeJumish to or make available for examination or use by CONSULTANT as it may request, any relevant data which CLIENT has available and pertains to the Services to be performed under this AGREEMENT, including as examples only and not as a limitation copies of reports, plans, technical specifications, records, and information directly related to the Services. All such data furnished or otherwise made available by CLIENT shall remain property of CLIENT. The CONSULTANT, upon request, shall return any original data provided byCLTENT SEC.205 Upon written request by the CONSULTANT, CLIENT shall reasonably assist the CONSULTANT in obtaining data and documents from public officers or agencies and from (080907) private citizens and business firms whenever CONSULTANT determines that such material is necessary for the completion of he Services covered by this AGREEMENT SEC 206 The CONSULTANTwill not be responsiblefor accuracy of informationor data supplied by CLIENT or other sources, but will use such data to the extent such information or data would be relied upon by a reasonably prudent party. PART III- SCOPE OF WORK SEC 301 The Services to be performed by the CONSULTANT under this AGREEMENT shall consist of the work described inExhibrt "A" (Scope of Work) of this AGREEMENT SEC 302 CLIENT may at anytime, by written order, request changes within the general scope of this AGREEMENT and in the Services or work to be performed A change order shall be in sufficient detail to clearly show the CONSULTANT the work to be done and to provide a basis for assessing any impact on contract cost or schedule The CONSULTANT shall, within 10 calendar days from the date of receipt by the CONSULTANT of a change order, notify CLIENT in writing of any potential impact on contract cost or schedule, and shall provide CLIENT with its assessment of the feasibility of making the change proposed Ifthe CONSULTANT nob6e5 CLIENT that the change is not feasible, the parties shall meet as soon as possible to review the proposed change Followmgthesediscussions, CLIENT will either direct that the change proceed as stated in the original change order, issue a modified change order, or withdraw the change order. SEC. 303 If an original change order or modified change order causes an increase or decrease in the CONSULTANTs cost or time required for performance of any services under this AGREEMENT, the parties shall meetto discuss the proposed change and the compensation adjustment to be made An equitable adjustment shall be made in the compensation or schedule (or both), and this AGREEMENT shall be modified in writing accordingly. CLIENT shall thereafter issue a written change order implementing the changes in the Services or work to be performed If CLIENT and the CONSULTANT are unable to agree on an equitable adjustment in price or schedule (or both) in connection with a change order, the matter in dispute shall be submitted to resolution in accordance with Section 621 ofthis AGREEMENT. CLIENT shall thereupon issue a change order implementingthe changes in the work and the CONSULTANT shall proceed with the Services as changed, notwithstanding the pendency of such dispute, provided that the CONSULTANT's proceeding with the Services, as changed, shall not prejudice its position in the dispute resolution process SEC 304 No Services for which any additional compensation will be charged by the CONSULTANT shall be furnished without the prior written authorization of CLIENT Oral change orders to this AGREEMENT shall not be permitted SEC. 305 The CONSULTANT's compensationas defined in Part IV of this Agreement, "Compensation and Terms of Payment", is the total compensation payable under the terms of this AGREEMENT The CONSULTANT shall not provide services beyond the scope of this AGREEMENT unless those additional services and the compensation for those services have been defined in an approved change order or written amendment to this AGREENIIINT. (080907) 4 PART IV - COMPENSATION AND TERMS OF PAYMENT SEC 401 For the Services described in Exhibit "A", Scope of Work, CLIENT agrees to pay the CONSULTANT based on the Fee Schedule, which is Exhibit "B" to this AGREEMENT, attached hereto and incorporated as though set forth in full The fees set forth in Exhibit"B" include all fees for time and labor for salaries, overhead, materials, equipment, licenses, and a "not -to -exceed" amount for certain non -salary travel related and out of pocket expenses incurred by the- CONSULTANT in the performance of the Services under this AGREEMENT, including all subcontractor or subconsultant costs Direct non -salary expenses incurred by the CONSULTANT for work done under this AGREEMENT eligible for reimbursementby CLIENT include identifiabletravel expenses such as air fare, car rental, meals, hotel, taxi fare and parking CONSULTANTwill not be reimbursed for standard postage and local phone calls Deliveries byFedex,UPS, orsimrlar services are reimbursable CONSULTANT will not be reimbursed for items identified as direct non -salary expenses that are part of CONSULTANT's overhead It is expressly understood that the work and Services described in Exhibit "A" will be completed by the CONSULTANT, except where otherwise stated, and it shall be the CONSULTANT's responsibilityto ensure that all Services are completed in accordance with the terms ofthisAGREEMENT SEC.402 The CONSULTANT shall, as applicable, submit monthlyreportstoCLIENT onthe first day of each month detailing activities for any Professional Services requested by CLIENT and performed by CONSULTANT during the preceding manth. The report should itemize all fees, hours and costs and describe such in reasonable detail Backup material should include copies of any invoices and support material for eligible reimbursements SEC. 403 CLIENT shall pay the invoiced amount within 30 calendar days after the date of receipt of any invoice, provided that the invoice is properly completedind documented SEC.404 CONSULTANT understands that funds that will be used to compensate CONSULTANT for the Services under this AGREEMENT are funds provided by the United States Department of Transportation ("USDOT")and CLIENT If the United States DepartmentofTransportafion discontinues funding to CLIENT with respect to the Services provided under this Agreement, this AGREEMENT may be terminated by CLIENT upon written notice to the CONSULTANT If CLIENT terminates this AGREEMENT for lack of USDOT funding, such termination shall be treated as termination for convenience under Section 609 of this AGREEMENT SEC 405 CLIENT maywithhold or, an account of subsequently discovered evidence, nullify the whole or partof any payment made by CLIENT to the CONSULTANT to such extent as maybe necessary to protect CLIENT from loss or damage, or to compensate CLIENT, caused by, resultingfrom or ansing out of, including but not limited to, any, failure to perform Services in accordance with this AGREEMENT PART V - TEW E OF PERFORMANCE SEC 501 NOTICE TO PROCEED (080907) The parties to this AGREEMENT understand and agree that execution of this AGREEMENT by CLIENT is not a Notice -To -Proceed with the Scope of Work of this AGREEMENT. A Notice -To -Proceed will be issued by CLIENT to the CONSULTANT after receipt and approval of alt insurance certificates by CLIENT venfymg compliance with the insurance requirements specifiedin Section 606 of this AGREEMENT SEC. 502 CONSULTANT shall commence the performance of Services under this AGREEMENT when CLIENT issues a Notice -to -Proceed, and the Scope of Work shall be completed by the CONSULTANT no later than one year after the date of the Notice -to -Proceed, or the 31st day of August, 2008, whichever is later, This date for completion may only be extended by written change order executed byCLIENT or by amendment to this AGREEMENT This Agreement shall continue in full force and effect for one year, unless soonertermmated as herein provided In addition, at the option of CLIENT, the Agreement shall automatically renew for additional one year terms not to exceed four (4) such additional one year terms. PART VI - GENERAL PROVISIONS SEC 601 BOOKS AND RECORDS The CONSULTANT shall maintain all books, documents, papers,teclinical specifications, accounting reports and otherevidence relating to the Services, and shall permit the Secretary of Transportation, the Comptrollerof the United States (or their authorized representatives), CLIENT (and its authorized representatives),access to and the rightto inspect, audit and copy all such bboks, documents, papers, accounting reports, and other evidence still reasonable times during the AGREEMENT period and for two (2) years from the date offinal payment under this AGREEMENT CLIENT (or its authorized representatives) may perform audits so as not to interfere with the timely processing of invoices If an audit indicates that the CONSULTANT has been overpaid that overpaymentwill be credited against future invoices SEC 602 INDEMNIFICATION & HOLD HARMLESS The CONSULTANT agrees to protect, defend, indemnify and hold CLIENT, and its respective officers, employees, representatives, commission members and agents (individually, an "IndemnifiedPaity" and, collectively,the `TndemmfiedParhes"), and each of them, free and harmless from and against any and all losses, penalties, damages, settlements, costs, charges, professional fees or other expenses or liabilities of arising out of any and all claims, liens, demands, obligations, actions, proceedings or causes of action (hereinafter collectively "claims") to the extent arising out of the performance of the AGREEMENT (including, without limitation, the Software License and Services Agreement) by the CONSULTANT. Without limiting the generality of the foregoing, any and all such claims (i) relating to personal injury, (ii) that the Services violate or infringe a patent, trademark, copyright, trade secret, nondisclosure or other intellectualproperty or proprietary right, (in) that the use of the Services by an Indemnified Party violates or infringes a patent, trademark, copyright, trade secret, nondisclosure or other intellectual property or proprietary right, (iv) that the implementation of any recommendation of CONSULTANT by an Indemnified Party violates or infringes a patent, trademark, copyright, trade secret, nondisclosure or other intellectual property orpropnetary right, and (v) relating to violation of (O80907) any applicable statute, ordinance, administrative order, rule or regulation, or decree of any court, shall be included in the indemnity hereunder The CONSULTANT shall pay all costs necessaryto defend and shall protect, indemnify, and hold harmless the Indemnified Parties from any and all loss, damage, liability, attorneys fees, cost or other expense caused by the CONSULTANT, its employees, CONSULTANT's subcontractors,subconsultants, associates or agents to the extent arising out of the acts, errors or omissions of the CONSULTANT (or its associates, employees, subconsultants, subcontractors or other agents) while performing the Services under this AGREEMENT No limitationof liability (including, without limitation, any cap on damages) contained in this Agreement or in the Software License and Services Agreement shall apply to this SEC 602 SEC 603 DISCLAIMER OF LIABILITY CLIENT will not hold harmless or indemnify the CONSULTANT (or its associates, employees, subconsultants subcontractors or outer agents) for any liability whatsoever except in the event of willful misconduct or gross negligence on the part of CLIENT SEC 604 CONSULTANT RESPONSIBILITY The CONSULTANT shall at all times maintaincontrol over and have complete responsibility for all of the Services performed under this AGREEMENT. Any attempt by the CONSULTANT to assign or otherwise transfer any interest in this AGREEMENT, without the written consent of CLIENT, which consent shall not be unreasonably withheld, shall be void SEC. 605 SUBCONSULTANTS AND SUBCONTRACTORS The CONSULTANT shall submitto CLIENT, forreview and documentationpurposes, a list of all subconsultant and subcomractorAGREEMENTS A list of such agreements shall be included asExhibit "D"to this AGREEMENT The CONSULTANT will not enter into any agreement with any subcontractor or subconsultant not named in Exhibit `W' to this AGREEMENT, except with the prior written approval of CLIENT, which shall not be unreasonably withheld. SEC 606 INSURANCE The CONSULTANT, at its own expense, shall obtain and maintain, for the duration of the AGREEMENT, insurance against claims for injuries to persons or damages to property or other losses which may arise from or in connection with the performance of the work and Services hereunder by the CONSULTANT, or its agents, representatives, employees, subconsultants, or subcontractors of any tier The CONSULTANT will provide CLIENT with certificates of insurance for coverage as listed below and endorsements, establtshingcoverage required by this AGREEMENT within ten 10 calendar days after contract approval by CLIENT. The certificates of insurance for each insurance policy are to be signed by a person authorized by that insurer (080907) The CONSULTANT will: Maintain commercial general liability coverage at limits of no less than $1,000,000 combined single limit per occurrence and $1,000,000 annual aggregate for body injury (including death), personal injury and property damages The coverage shall be on an "occurrence" basis only and not on a "claims made" basis, and the coverage must be provided on ISO commercial liability or on ISO broad form comprehensive general liability forms with no exceptions to the coverage of bodily injury, personal injury, broad form property damages, premises operations, products and completed operations, contractual and independent contractors CLIENT, its officers, employees, representatives, agents, members and volunteers must be expressly covered as additional insured Maintain forthe duration of this AGREEMENT, automobile coverage at limits of no less than $1,000,000 combined single limn "per accident" for bodily injury and property damage for all non -owned automobiles, hued automobiles and, if any, owned automobiles. The coverage must include, but not be limited to claims for injuries to persons or damages to property which may arise from or in connection with the use of any auto in the performance of Services hereunder by the CONSULTANT, its agents, representatives employees, suhconsultants or subcontractorsof any tier CLIENT, its officers, employees, representatives agents, members and volunteers must be expressly covered as additional insured. C. Maintain professional liability insurance at limits of no less than $1,000,000 per occurrence and $1,000,000 annual aggregate to insure against claims for losses arising out of the , services rendered by the CONSULTANT, its agents, representatives or employees pursuant to this AGREEMENT. "Clauns made" insurance coverage will continue for a period of one year beyond the term of this AGREEMENT Any retroactive date must comcidemnthorpredate the date ofthis AGREEMENT and may not be advanced withoutCLIENT's consent. All deductibles and self -insured retention provisions shall be fully disclosed in the certificate of insurance No deductible or self -insured retention may exceed $100,060 without the written approval of CLIENT. If aggregate limits are unposed on bodily injury and property damage, then the amount of such limits must not be less than twice the amount of the limits required herein. All aggregates must be fully disclosed and the amount entered on the required certificateofinsurance Copiesof any notices given to the CONSULTANT with respect to exhaustion of hours of insurance shall also be provided to CLIENT The adequacy ofthe insurance supplied by the CONSULTANT, including the industry rating and financial health of each insurance company providing coverage, is subject to the approval o£LIENT CONSULTANT shall maintain worker's compensation insurance for its employees with policy limits of not less than the statutory requirements of the state where the CONSULTANT'S employees are employed The CONSULTANT's insurance under (a) and (b) shall be primary as respects CLIENT, its officers, employees, representatives, agents, members, and volunteers. Any other coverage available to CLIENT, its officers, employees, representatives, (080907) agents, members, and volunteers shall be excess over the insurance required of the CONSULTANT The insurance requirements specified herein do not relieve the CONSULTANT of its responsibility or Itmrtthe amount of its habilityto CLIENT or other persons and the CONSULTANT is encouraged to purchase such additional insurance as it deems necessary f The insurance certificate(s) supplied by the CONSULTANT must provide fora 30- day notice to CLIENT before the implementation of any insurance coverage cancellation This nonce requirement does not waive the insurance requirements contained herein In addition, the CONSULTANT shall notify CLIENT within 30 days of any reduction in coverage or limns SEC. 607 CONFLICTS OF INTEREST No employee,officer, or agent of CLIENT shall participate in the selection or in the award of administration of this AGREEMENT if a conflict of interest, real or apparent would be involved CLIEN'sofficers, employees, or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, subcontractors, subconsultants, or other parties to subagreements, SEC. 608 FEDERAL AND STATE CONDITIONS This project is funded in part by the Federal Transit Administration (FTA) Therefore, the Federal Conditions, as set forth in Exhibit "E" are applicable to this AGREEMENT. The CONSULTANT shall sign all attachments inExhibit`V. The terms and conditions outlined in Exhibit "F" regarding the prohibition against hiring illegal aliens are incorporatedherein SEC 609 TERMINATION FOR CONVENIENCE The performance ofwork under this AGREEMENT maybe terminated by CLIENT in accordance with this Section in whole, or from time to time in part, whenever CLIENT determines that such termination is in the best interest of CLIENT Any such termination shall be effected by delivery to the CONSULTANT a notice of termination specifying the extent to which performance of work under the AGREEMENT is terminated, and the date upon which such termination becomes effective. b Upon receipt of termination, and except as otherwise directed by CLIENT, the CONSULTANT shall: (1) stop work under this AGREEMENT onthe date and to the extent specified in the notice of termination; (2) place no further orders or subcontracts for materials, services, or facilities, except as may be necessary for completion of such portion of the work under this AGREEMENT as is not terminated; (3) terminate all orders and subcontractsto the extent thatthey relate to the performance of work terminated by the notice of termination, (4) assign to CLIENT in the manner, atthe times, and to the extent directed by CLIENT, all ofthe right, title, and interest ofthe CONSULTANT under the orders and subcontractsso terminated; (5) settle all outstanding liabilities and all claims ansmg out of such (080907) termination of orders and subcontracts, with the approval or ratification of CLIENT, to the extent CLIENTmayrequ ire, which approval or ratification shall be final for all the purposes of this Section, (6) transfer title to CLIENT and deliver in the manner, at the times, and to the extent, ifany directed by CLIENT, supplies, equipment, and other materials produced as apart of, or acquired in connection with the performance of the work terminated, and any information and other property which, if this AGREEMENT had been completed, would have been required to be furnished to CLIENT; (7) complete any such part of thework as shall not have been terminated by the notice of termination, (8) and take such action as may be necessary, or as CLIENT may direct, forthe protection or preservation of the property relatedto this AGREEMENT which is in the possession of this CONSULTANT and in which CLIENT has or may acquire an interest Payments by CLIENT to the CONSULTANT for amounts owed by CLIENT pursuantto this Agreementshall be made by the date of termination Except as otherwiseprovided, settlementof claims by the CONSULTANT or recoveries by CLIENT under this termination for convenience clause shall be in accordance with the provisions set forth in 48 C F R Part 49, as amended from time to time. SEC. 610 TERMINATION BY MUTUAL AGREEMENT This AGREEMENT maybe terminated by mutual agreement of the parties Such termination shall be effective in accordance with a written agreement by the parties. Any other act of term mationshall be in accordance with the terminationby convenience or default provisions contained in Sections 609 and 611 and the cancellation clause in Section 612 of this AGREEMENT SEC. 611 TERMINATION FOR DEFAULT Subject to the provisions of subsection (c) of this Section, CLIENT may, by 10-day advance written notice of defaultto the CONSULTANT, tern matethe whole or any part of this AGREEMENT upon the occurrence of any of the following events if not cured to CLIENT's reasonable satisfaction within such 10 day period- (1) If the CONSULTANT fails to provide the Services in the manner required by this AGREEMENT or in accordance with the performance standards articulated herein; (2) If the CONSULTANT fails to perform any of the provisions of this AGREEMENT in accordance with its terms, or (3) If the CONSULTANT fails to make progress in the prosecution of the work under this AGREEMENT so as to endanger such performance b In the event that CLIENT terminates this AGREEMENT in whole or in part as provided in subsection (a) of this Section, CLIENT may procure, upon such terms and in such manner as CLIENT may deem appropriate, supplies or services similar to those so terminated. The CONSULTANT shall be liable to CLIENT for costs associated with the termination of this AGREEMENT, the procurement of replacement services by CLIENT, any excess costs of such similar supplies or (080907) 10 services, and any increase in the hourly rate as a result of the re -procurement of services from the date of termination to the expiration date of the original AGREEMENT The CONSULTANT shall continue the performance of this AGREEMENT to the extent not terminated under provisions of this Section. Any settlementof claims by the CONSULTANT under this termination Section shall be in accordancewith the provisions set forth in 48 C.F R Part 49, as amended from time to time SEC 612 CANCELLATION OF AGREEMENT In any of the following cases, CLIENT shall have the right to cancel this AGREEMENT without expense to CLIENT(1)theCONSULTANT isguilty ofmisrepresentatior;(2)this AGREEMENT is obtained by fraud, collusion, conspiracyor other unlawful means, or (3) this AGREEMENT conflicts with any statutory or constitutional provision of the State of Colorado or the United States of America This Section shall not be construed to limit CLIENTS right to terminate this AGREEMENT for convenience or defaultps provided in Sections 609 and 611, respectively SEC 613 INDEPENDENT CONTRACTOR The CONSULTANT represents that it is fully experienced and properly qualified to perform the Services provided for herein, and that it is properly equipped, organized, and financed to perform such Services. The CONSULTANT shall act as an independent contractorand not as the agent of CLIENT in performing the Services under this AGREEMENT The CONSULTANT shall maintain complete control over its employees and all of its subcontractors and subconsultants and shall be responsiblefor all acts, errors or omissions of its subcontractors and subconsultants and of persons either directlyor indirectly employed by them, as it is for the acts or omissionsof persons directly employed by the CONSULTANT. Nothing contained in this AGREEMENT shall create any contractual relationship between CLIENT and any subcontractoror subconsultant, agent or employee of the CONSULTANT or create any obligation on the part of CLIENT to pay or be liable for the payment of any sums to any subcontractor, subconsultant, agent or employee of the CONSULTANT. SEC. 614 ASSUMPTION OF RISK Any Services performed by the CONSULTANT under this AGREEMENT shall be at the sole risk and expense of the CONSULTANT, without regard to whether CLIENT conducts a prior review or approval of the Services to be provided. SEC 615 SUCCESSORS AND ASSIGNS Neither CLIENT nor the CONSULTANT shall assign, transfer, convey or otherwise dispose of this AGREEMENT or its interest in orto the same, or any partthereof,withoutthe prior written consent of the other party, which consent shall not be unreasonably withheld This AGREEMENT will be binding on any authorized successor on assign. SEC 616 COVENANT AGAINST CONTINGENT FEES (080907) 11 The CONSULTANT warrants that no person or selling agency has been employed or retained to solicit or secure this AGREEMENT based upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide permanent employees, For breach or violation of this warranty, CLIENT shall have the right to terminate this AGREEMENT without liability or, nits discretion, to deduct from amounts otherwise owed to CONSULTANT or to otherwise recover the full amount of such commission, percentage, brokerage or contingent fee SEC 617 GRATUITIES CLIENT may, by written notice to the CONSULTANT, terminate this AGREEMENT if it is found after notice and hearing by CLIENT that gratuities (in the form of cash, entertainment, gifts or otherwise) were offered or given by the CONSULTANT or any agent or representativeof the CONSULTANT to any officer or employee of CLIENT with a view toward securing a contract or securing favorable treatment with respect to the awarding, amending, or m aking of any determinations with respect to the performance of this AGREEMENT In the event this AGREEMENT is terminated as provided for in this Section, CLIENT shall be entitled to pursue the same remedies against the CONSULTANT as it could pursue in the event of a breach of this AGREEMENT by the CONSULTANT The rights and remedies ofCL1ENT provided in this section shall not be exclusive and are in addition to any other rights and remedies provided bylaw or under any other provision of this AGREEMENT SEC 618 SCOPE OF AGREEMENT This AGREEMENT shall include the provisions set forth herein and all exhibits hereto, including but not limited to the Software License and Services Agreement SEC.619 CERTIFICATION The individuals who have affixed their signatures below certify and attest each is empowered to execute this AGREEMENT and act on behalf of and bind the party in whose name this AGREEMENT is executed SEC 620 OWNERSHIP OF DOCUMENTS A All materials, information, products, work, documents, specifications, files, reports or other data or material, whether finished, unfinished or draft, developed, prepared, completed or acquired by the CONSULTANT for the Services to be performed under this AGREEMENT, including, without limitation, the original data, reports, correspondence, memoranda, specificationsand drawings shall become the property of CLIENT and shall be delivered to CLIENT upon completion ortermmation of this AGREEMENT, whichever occurs first (08e907) 12 B Upon termination of this AGREEMENT, all finished or unfinished materials, products, work, documents, files, specifications,reports or other data prepared by or for the CONSULTANT in connection with the Services provided under this AGREEMENT shall be submitted to CLIENT. C. All Licensed Software and any proprietary data, including any enhancements developed by CONSULTANT, will be delivered pursuant to CONSULTANT's Software License and Services Agreement with the provision that; notwithstanding the fact that some portion of the Licensed Software may be first produced and/or modified in the course of the contract, the only rights granted in the Licensed Software are those in the Software License and Services Agreement Acopyofthe Software License and Services Ageement is provided in Exhibit "C'. D The Software License and Services Agreement gives CLIENT the right to share access to and use of the CONSULTANT's Services (including, without limitation, the PurchasePoolmg Solutions online application) to its officer's, employees, representatives,agents,membersandvolunteers. The nghttoshare access toand use of the CONSULTANT's Services may not be furnished by CLIENT to any parties outside CLIENT's agency or organization without the express consent of CONSULTANT SEC 621 DISPUTE RESOLUTION Any dispute arising betweenCLIENT and CONSULTANT relating to thisAGREEMENT shall be resolved in accordance with this Section The parties shall attempt to resolve the dispute informally in meetings or communications between the CONSULTANT and CLIENT If the dispute remains unresolved 15 days after it first arises, the CONSULTANT may request CLIENT's Purchasing Agent to issue a recommended decision on the matter in dispute CLIENT`sPurchasingAgent shall issue the recommended decision in writing and provide a copy to the CONSULTANT. The recommendeddecision of CLIENT's Purchasing Agent shall become final unless, within 15 days ofreceipt of such recommended decision, the CONSULTANT submits a written request for review to CLIENT's Board of Directors or other executive or advisory group having similar decision making capacity In connection with any such review, the CONSULTANT and CLIENT's Purchasing Agent shall be afforded an opportumtyto be heard and to offer evidence on the issues presented If the dispute remains unresolved after review by CLIENT's Board of Directors, the parties may, by mutual agreement, seek arbitration by an independent party Ifthe patties mutually agree to arbitration,the dispute shall be resolved in accordance with standard procedures of the American Arbitration Association Iftheparties do not agree to submit the dispute to arbitration, either party may seek judicial resolution of the dispute in any court of competentjunsdiction inLarimer County, Colorado. Pending final resolution of a dispute under this Section, the CONSULTANT shall proceed diligently with performance of the Services in accordance with the CLIENT Purchasing Agent's recommended decision. SEC 622 APPLICABLE LAW (o80907) 13 Colorado State law shall govern the interpretation of this AGREEMENT The CONSULTANT shall also abide by all applicable City and Countynrdmances SEC 623 JURISDICTION The CONSULTANT, by entering into this AGREEMENT, consents and submits to the jurisdiction of the courts of the State of Colorado over any action at law, suit in equity, or other proceeding arising out of or relating tcthe performance of this AGREEMENT SEC 624 REMEDIES Any remedies that are available to CLIENT under this AGREEMENT shall be in addition to the remedies which may otherwise be available tcCL1ENT at law or in equity SEC 625 SEVERABILI7Y If any term, provision, covenant or condition of this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, all other terms, provisions, covenants and conditions of this AGREEMENT shall remain in full force and effect and shall in no way be affected, impaired, or invalidated SEC 626 TITLES The titles or captions set forth in this AGREEMENT are for general reference and convenience only, do notin anyway limit or amplify the terms and provisions hereof, and shall have no effect on its interpretation SEC 627 FORCE MAIEURE The CONSULTANT shall not be Iiable for any failure to perform ifacceptable evidence bas been submitted to CLIENT that failure to perform the AGREEMENT was due to causes beyond the control and without the fault and negligence of the CONSULTANT and which could not have been avoided or prevented through due diligence and the use of reasonable efforts by the CONSULTANT Example of such causes include acts of God, civil disturbances, fire, war, or floods, but does not include laborrelated incidents, such as strikes or work stoppages SEC 628 NOTICE Any notice required to be given hereundershall be deemed to have been given when received by the party to whom it is directed by personal service, hand delivery or U.S. Mail Return Receipt Requested at the following address TO CLIENT City of Fort Collins Purchasing 215 N. Mason, 2nd Floor Fort Collins, CO 80524 Attn Jim Hume (970)221-6776 (eso9on 14 with a copy to City of Fort Collins Traisfort 6570 Portner Road Fort Collins, CO 80525 Attn Dave Leicester (970) 221-6625 TO CONSULTANT Graham C Beachum, II,CEO Implicit PurchasePoolmg Solutions, L P 8080 North Central Expressway, Suite 1250 Dallas, Texas 75206 (214)891-7068 SEC 629 WAIVER OF TERMS AND CONDITIONS The failure of CLIENT or the CONSULTANT to enforce one or more of the terms of this AGREEMENT or to exercise any of its rights or privileges hereunder, or the waiver by CLIENT of any breach of such terms or conditions, shall not be construed as thereafter waiving any such terms, conditions, rights or privileges, and the same shall continue and remain in force and effect as If no waiver had occurred SEC 630 CONTRACT AMENDMENTS This AGREEMENT (and the Exhibits hereto) may only be amended or modified by written amendment agreed to and duly executed byCLIENT and the CONSULTANT IN WITNESS WHEREOF, the parties have caused this AGREEMENT to be executed the day and year first written above IMPLICIT PURCHASEPOOLING SOLUTIONS, L.P. By IMPLICIT SOLUTIONS, GP, LLC By RAHAM C BEACHUM, III President ATTEST (—/� By t C C Lt Q�( Cis Name M,e -aift KCK/ Title (N�O�T�A�RYP�[1pByld�Cp` '° <<4 xx ,• u mu 809 MY COW W.113Q2009 15 CITY OF FORT COLLINS V By Jame B O'Neill 11 Director of Purchasing & Risk Mgmt ATTEST an vL5 SCOPE OF WORK JOINT PROCUREMENT WEB BASED PROGRAM AGREEMENT Program Description: COOPERATIVE PROCUREMENT PILOT PROGRAM - HEAVY DUTY TRANSIT BUS POOL City of Fort Collins ("CLIENT") is currently participating in the Federal Transit Administration's (FTA) Cooperative Procurement Pilot Program ("CPPP") as defined to Section 166 of Public Law No 108-199 the Transportation, Treasury, and Independent Agencies Appropriations Act of 2004 and Section 167 of the Transportation, Treasury, and Independent Agencies Appropriations Act, 2005 Pursuant to the Joint Procurement Web Based Program Agreement by and between Implicit PurchasePoohng Solutions, L P ("CONSULTANT") and CLIENT dated S� ZD w - "AGREEMENT"), to which this Exhibit "A" is attached and incorporated into, this Scope of Work identifies program and software application objectives, as well as various technical critena and system features pertaining to the Internet -based software (the "Licensed Software") to be provided by CONSULTANT to support the CPPP as described below In addition, this Scope of Work sets forth certain responsibilities of CONSULTANT and CLIENT in connection with the AGREEMENT Program Obiectives: The purpose of the CPPP is to determine the benefits of encouraging cooperative procurement of major capital equipment under sections 5307, 5309 and 5311 of FTA's authorizing legislation Five pilot projects have been authorized by Congress and identified by the FTA for participation m the CPPP. CLIENT is an FTA-approved participant in a cooperative procurement pool being formed and supported by CONSULTANT pursuant to the CPPP CLIENT is participating m the CPPP with other FTA-approved transit agencies for the primary purpose of purchasing heav duty transit buses In addition to directing agencies to develop joint specifications and issue a joint Request for Proposal ("RFP"), the CPPP directs the cooperating agencies, to the extent possible, to maximize the use of Internet -based software technology in order to develop specifications, aggregate equipment requirements, create cooperative specifications, generate a joint RFP and automate the request for approved equals process Svstem Goals: • Provide a tool to efficiently manage multiple usertechnical and contractual information to encourage multiple user cooperation and aggregation in capital equipment procurement. • To achieve procurement cost savings through cooperative purchasing, competitive pricing, equipment standardization, document standardization, and time and resource savings for participating purchasers and equipment manufacturers Licensed Software Obiectives: • The Licensed Software provided by CONSULTANT sliall be designed to generate a joint technical specification for capital equipment (i.e transit buses) with a menu of individualized component selections or biddable options derived from multiple pool participants The participants can either select a base equipment specification or enter alternative technical specifications for various components of the capital equipment (080907) Page 1 of 3 • The Licensed Software shall allow online users to generate a joint RFP document incorporating commercial terms and conditions, FTA requirements, and technical specification requirements, while allowing insertion of individual agency specific terms and conditions The Licensed Software shall allow individual users to track and highlight changes or modifications to the base specification throughout the RFP process. • The Licensed Software shall be designed to develop a list of deviations, or variables, from the base specification that provides for the customized requirements of each user Deviations from the base specification shall be transparent to all users • The Licensed Software shall provide a tool to assist participants with the evaluation of vendor proposals and base price plus optional item comparisons by providing a template or formula to break out the price of base equipment and the price of biddable options to calculate the final price of the individually configured equipment with or without selected options Technical Criteria: • The Licensed Software shall be accessed through an Internet website (portal) and shall be accessible for read, data entry, data modification, and data analysis by approved, licensed users • The Licensed Software shall be hosted by CONSULTANT in a dedicated hosting environment located where the hosting site provides all bardware/sofhvare and other technical infrastructure, ongoing maintenance and support. No interaction with CLIENT's current information technology infrastructure will be required or permitted. • CONSULTANT shall maintain control of all files, records, technical specifications, RFP's and other documents and communications generated by CLIENT and other users on its secure servers in connection with the use of the Licensed Software pursuant to this scope of work • The Licensed Software shall be designed to support a roles -based security model allowing assignment of access rights and permissions to be determined for individual users within the CLIENT organization The Licensed Software shall also support a roles -based security model, as required, for RFP respondents, i.e vendors, suppliers and/or manufacturers. • The Licensed Software shall be intended to support additional future specification driven capital procurement projects involving detailed technical specifications and the development of aloint RFP and shall not be restricted to the current CPPP procurement or to the purchase of transit buses. • User training for the Licensed Software shall be made available to CLIENT and include system features, data entry, data manipulation, data evaluation, document creation, document editing, document distribution and document retention for CLIENT and other participating users User help/support for CLIENT and other participating users shall be available via an online help feature and/or through telephone support provided by CONSULTANT during normal business hours Responsibilities of Parties • CONSULTANT shall provide oversight of the pooled procurement by designating a qualified individual to act as the multi -participant Pool Advisor. The Pool Advisor (080907) Page 2 of 3 shall function as the central contact and clearinghouse for all discussions, documents and decisions relating to the pooling process and the activities which result in the development and issuance of apint RFP For purposes of satisfying this requirement, CONSULTANT hereby names Jack Leary of JKL Solutions. Inc. "JKL" as Pool Advisor. JKL is an independent consulting firm representing client interests within the public transportation industry providing public and private sector organizations with specialized services involving the operations, management and construction of mass transit systems and facilities • CONSULTANT and/or Pool Advisor shall host meetings as may be reasonably necessary to coordinate information, make decisions related to the procurement process and provide a central point of contact for the processing of data and delivery to and from prospective RFP respondents CONSULTANT and/or Pool Advisor shall chair an Advisory Committee consisting of the General Manager, CEO, Procurement Officer or other official designee of CLIENT and which shall include similar representatives of other organizations or agencies participating in the pooled procurement. The Advisory Committee shall, among other things, endeavor to establish key dates and deadlines for the pooling process. CONSULTANT and/or Pool Advisor shall facilitate web services for the Advisory Committee collaboration process • CONSULTANT and/or Pool Advisor shall create or input into the Licensed Software a base capital equipment specification to be used as the starting base specification by pool participants. CLIENT will have the option to either accept the base specifications or specify individualized component selections, biddable options and/or its own unique local terms and conditions CONSULTANT and/or Pool Advisor shall chair a Technical Committee which shall be organized to review and monitor the processing of the technical bus specifications, review questions from prospective bidders, coordinate responses and make technical modifications as maybe necessary during the procurement process CONSULTANT and/or Pool Advisor shall request CLIENT and all other pool members to designate a member of their equipment engineering or vehicle maintenance staff to the membership of the Technical Committee • CONSULTANT and/or Pool Advisor shall facilitate through the Licensed Software the collaboration amongst the pool participants in regard to performance and technical issues to increase the collaborative value for each user participating in the pool CLIENT shall have the right to accept other than the lowest offer, reject any or all offers in part or in total for any reason, to accept any offer if considered best for its interest, and to waive informalities and minor irregularities in offers received. CLIENT may accept any item or group of items of any offer, unless the offeror qualifies the offer by specific limitations Unless otherwise provided, Client shall have the right to make an award on any item for a unit quantity less than the quantity offered at the unit prices offered unless the offeror specifies otherwise in the offer. (080907) Page 3 of 3 ill FEESCHEDULE The CLIENT shall be responsible for payment of the following fees pursuant to the JOINT PROCUREMENT WEB -BASED PROGRAM AGREEMENT (the "Agreement') A. Software License Fee A Software License fee shall be due by CLIENT as compensation to CONSULTANT for the use of the Licensed Software The Software License Fee, as applicable, shall be due and payable upon execution of the Agreement and delivery of the Licensed Software by CONSULTANT to CLIENT The total Software License Fee due by CLIENT shall be one percent (1 %) of the total purchase price of all capital items purchased by CLIENT in connection with the use of the Licensed Software The Software License Fee shall be calculated and paid as follows 1 There shall be a minimum annual Software License Fee due in the amount of $5,000.00 per year for the term of the Agreement, which shall be payable in advance on the effective date of the Agreement and on each anniversary date of the Agreement thereafter so long as the agreement is in effect 2. CLIENT also agrees to pay an additional Software License Fee amount which, if applicable, shall be calculated as follows one percent 0%) of the total purchase price of all capital items purchased by CLIENT in connection with the use of the Licensed Software less the total of any minimum annual Software License Fees paid by CLIENT pursuant to Section 1 above The portion of the Software License Fee described in this section shall only be due and payable at the tune a formal purchase order (or similar purchase authorization) is issued by CLIENT to a vendor in connection with the purchase of any capital pursuant to the use of the Licensed Software 3 The Licensed Software shall provide the following capabilities General Application • Use of the Licensed Software • Individual users assign application access rights to their personnel • Bulletin board communication with other users and/or pool members • E-mail notifications of key milestone information to pool members. Technical Specification Development: • Pool members enter mimmum and optional capital item quantity information • Pool members have access to a baseline technical specification • Pool members have viewing access to technical specifications of other participating pool members • The application allows for editing of baseline specification to meet individual pool member needs or requirements • Pool members can create and incorporate a detailed list of Biddable Options into RFP • Individual pool members can view a comparison of,their specification to the common specification of the pool, or the baseline specification Request For Proposal (RFP) Production and Publishing- * Allows for input of local terns and conditions by each pool member tasavml Page I of 4 • Automatic production of ajomt RFP with local requirements of pool members • Online publishing of a joint RFP, accessible by licensed vendors • RFP maybe delivered via hard copy if necessary RFP Response • Licensed vendors have online access to published RFP • Vendors can view common pool specifications as wells as individual agency specifications • Vendors can submit online questions and clarification requests • Pool members respond online to vendor submitted questions • Vendors can submit their requests online for Approved Equals • Pool members approve (or decline) the Approved Equals requests • Vendors can input their RFP response online • Vendors respond with separate pricing for all Biddable Options • Complete transparency of vendor questions, Approved Equals requests and pool member responses Bid Evaluation Toots • Pool members can access and view online RFP responses from vendors • Pool members can view a Pricing Analysis Report comparing vendor pricing, including pricing by each year in a multi -year procurement • Dynamic pricing, capabilities where pool members can select Biddable Options and review the impact of selected options on total unit price and total overall procurement price. • Pool members can evaluate proposals by defining the criteria and assigning weights to the criteria to be evaluated. Based on the scores input, the application will then automatically calculate the weighted scores for each vendor Bid Selection and Award • After pool members have reviewed and evaluated the proposals submitted by vendors, pool members may select the vendor which is determined to be in the best interest of the pool member for the contract award. The application provides a report showing the vendors, their scorecard result, unit quantities, unit pricing, and total pricing by year, if applicable. • Pool members shall contract individually with vendors as applicable and will use best efforts to expediently award contracts in accordance with their own usual, unique and specific procurement practices for final adoption B. Application Setup and Professional Services Fees 1. CLIENT shall be entitled to purchase and receive on an "as needed" basis professional consulting services provided by CONSULTANT or CONSULTANT's qualified designee These services may include data analysis, development, preparation, conversion and/or input of CLIENT's commercial terms and conditions, technical specifications, deviations, local terms and conditions, textual revisions and other information and data necessary to be entered into the Licensed Software pursuant to the development of a joint request for proposal under the Agreement 2 CLIENT shall be entitled to receive version protection updates, upgrades, fixes and repairs, new releases or versions of the Licensed Software, including updated documentation, at such time as CONSULTANT makes such updates, upgrades and new releases or versions generally available to its customers within the specified time frame of the Software License and Services Agreement (090907) Page 2 of 4 {{ CLIENT shall be entitled to receive initial application setup and introductory training for the Licensed Software, including training manuals. The initial setup and training shall be delivered via telephone, email or other automated processes such as Webex Technical support is generally available Monday through Friday during normal business hours at CONSULTANTS generally published telephone number or designated email address. CLIENT agrees to pay to CONSULTANT as compensation for application setup and introductory training (as described above) an amount equal to $2,500.00 in advance on the effective date of the Agreement Upon request by CLIENT, application setup and training may also be delivered on -site at CLIENT's designated location if scheduled in advance by CLIENT at a rate of $150 per hour, including CONSULTANT's travel tune. Related travel expenses will be the responsibility of the CLIENT, subject to state or federal standardized terms C. Application Hosting Services 1 CONSULTANT shall host tite Licensed Software and all of CLIENT's data pertaining to the subject procurement on CONSULTANT's secure Internet servers 2 Hosted information shall include, but is not necessarily limited to • Individual CLIENT member technical specifications • Participating pool member technical specifications • Joint RFP with CLIENT and participating pool member requirements • List of vendor questions • CLIENT and participating pool member responses to vendor questions •- CLIENT and pool member online communications • Approved Equals requests from vendors • Individual CLIENT and pool member list of Approved Equals • Detailed list of Biddable Options • Vendor RFP responses • Vendor responses to Biddable Options • Pricing Analysis by vendor • Vendor scorecard • Vendor Summary Report 3. CLIENT shall be entitled to access the Licensed Software at all times while the Software License and Services Agreement remains in effect. CONSULTANT uses multiple providers for full redundancy of connectivity to its servers and ensures Hospital Grade Power Supply on multiple power grids. CONSULTANT provides a managed firewall to ensure security of site and application data. CONSULTANT's state-of-the-art data center is located in Dallas, Texas and utilizes card key entrance and video surveillance 4 CLIENT agrees to pay to CONSULTANT as compensation for Application Hosting Services an amount equal to 52.500.00 per year in advance on the effective date of the Agreement and on each anniversary date of the Agreement thereafter. D. Reimbursable Expenses CLIENT shall be responsible to reimburse CONSULTANT for documented necessary travel and out of pocket expenses to CLIENT's location, including airfare, ground transportation, parking, fuel, hotel, and meals. Expenses under this category shall be pre-authonzed by CLIENT in writing and shall be invoiced monthly, as applicable, by CONSULTANT. E. Additional Hourly Services (oso9u7) Page 3 of 4 If CLIENT in its sole discretion determines that any additional professional services are needed, an additional fee will be charged by CONSULTANT based on a set hourly rate of $150.00 with a not -to - exceed amount specified in writing by CLIENT Such Additional Hourly Services shall be pre - approved in writing by CLIENT and invoiced by CONSULTANT on a monthly basis after the services are rendered CLIENT shall be under no obligation whatsoever to purchase any Additional Hourly Services. F. Manuals and Documentation A User Manual for the Licensed Software shall to be provided to CLIENT free of charge by CONSULTANT. Manuals and documentation shalt be delivered electronically The remainder of this page has been left blank intentionally (0909M Page 4 of 4 SOFTWARE LICENSE AND SERVICES AGREEMENT This Software License and Services Agreement (the "Agreement") is made effective as of the Effective Date, by and between Implicit PurchasePoolmg Solutions, L P., a Texas limited partnership, with a principal place of business at 8080 North Central Expressway, Suite 1250, Dallas, Texas 75206- 1881 ("Implicit ), and City of Fort Collins ("Client") (each being referred to individually as a "Party" and collectively as the "Parties") RECITALS WHEREAS, Implicit and Client are parties to a Joint Procurement Web Based Program Agreement dated sd p ?w j (the "Joint Procurement —Web Based Program Agreement') WHEREAS, Implicit has the licensing rights to certain PurchasePoolmg Solutions software and on-line software -related services. WHEREAS, Implicit desires to provide to Client (as defined in Section 14 of this Agreement), and Client desires to obtain from Implicit, such software and on-line software -related services, in accordance with the terms and conditions of this Agreement NOW THEREFORE, in consideration of the terms and conditions of this Agreement, the 30111t Procurement — Web Based Program Agreement, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Implicit and Client, intending to be legally bound, agree as follows• TERMS I. Definitions. The following definitions apply for purposes of this Agreement 1.1 "Business Day" means any of Monday through Friday, other than holidays observed by Implicit 12 "Business Hour" means any hour between 8:00 a m. and 5.00 p in Central Time during Business Days 13 "Confidential Information" means (a) confidential or proprietary information that is either marked as such or, given the nature of the information or circumstances surrounding its disclosure, ought reasonably to be understood to be confidential or proprietary information of the Disclosing Party, and (b) with respect to Implicit as the Disclosing Party, the Licensed Materials 14 "Client" means, individually or collectively, City of Fort Collins, which is/are further defined in Exhibit A under the heading "Client (formation"), and which is/are participating as partner agencies in the Federal Transit Administration's Cooperative Procurement Pilot Program, as defined in Section 166 of Public Law No. 108-109, the Transportation, Treasury, and Independent Agencies Appropriations Act of 2004. 15 "Client Administrator" means the technical administrator as designated by the Client m Exhibit A under the heading "Client Administrator:" (MR07) Page 1 of 130 16 "Client Data" means all data originated by or for Client, and transmitted by Client to Implicit as part of Client's permitted use of the On -Line Services 17 "Consent" means the prior, express, and written consent of a Party, which consent may be withheld in such Parry's sole discretion 1 8 "Disclosing Party" is defined in Section 7 1. 19 "Effective Date" means the date upon which Implicit receives payment from Client. 1 10 "Excluded Support" means any the items or services that are not expressly described in Sections 5 1 through 5 4 1.11 "Initial Term" is defined in Section 10 1 1 12 "Licensed Materials" means any and all software made available by Implicit to Client in order for Client to use, access, or receive the On -Line Services and any and all published specifications for such software 1 13 "Licensed Software" is defined in Section 3 1 114 "Losses" means any and all claims, damages, losses, deficiencies, liabilities, penalties, charges, costs, and expenses, including reasonable attorney's fees. 1 15 "On -Line Services" means the services that are as described in Exhibit B under the heading "On -Lure Se -vices " 1 16 "Receiving Party" is defined in Section 7.1 1 17 "Renewal Term" is defined in Section 10 1. 1 18 "Support" means the support services described in Sections 5 1 through 5.4 1.19 "Term" means the Initial Term and any Renewal Term(s) 120 "User ID" means a unique identifier assigned by Implicit. 121 "User Password" means the password associated with a User ID. 2. On -Line Services. 2.1 Scone. Implicit shall provide the On -Line Services via the Internet to Client. 22 User IN and User Passwords (a) Client shall not access or use the On -Line Services without a valid User ID and a valid User Password. Implicit shall issue Client unique User ID's and User Passwords as necessary to allow for multiple Client users of the On -Line Services. Client's employees shall use their assigned User ID's when accessing and/or using the On -Line Services (080807) 2 of 10 (b) Client shall be responsible for (i) maintaining the strict confidentiality of the User IDs and the User Passwords consistent with its obligations under Section 7 of this Agreement, (u) instructing Client's employees not to allow use of any User ID or any User Password that is not expressly permitted, (iii) any and all Losses that may be incurred or suffered as a result of the failure of Client to maintain the strict confidentiality of a User ID or a User Passwords, and (iv) immediately informing Implicit verbally, and promptly informing Implicit to writing, (A) of any need to deactivate a User ID due to security concerns, (B) of any known or suspected misuse of a User ID or a User Password, or (C) of any loss or theft of a User ID or the deactivation of any User ID. (c) Implicit shall not be liable for any Kann, loss, or liability related to (i) the theft of User IDs or User Passwords (unless such theft is a result of Implicit's negligence) or (h) Client or any of its personnel, (A) misusing, or failing to use, a User ID or User Password, or (B) disclosure of any User ID or User Password that violates Section 7 of this Agreement (d) If (i) Client informs Implicit of a breach of security in connection with one or more User IDs, (n) Implicit reasonably believes that such a breach has occurred or is threatened, or (iii) Client or its personnel misuse any User ID or User Password, then, in each such event, Implicit may, without liability, immediately suspend providing the On -Line Services and Support until such breach, threat, or misuse is cured to Implicit's reasonable satisfaction 23 Connectivity Client shall obtain, and be responsible for maintaining, its Internet access and connectivity conforming to Implicit's then -current specifications reasonably necessary to receive access to, and use of, the On -Line Services. Implicit will not provide Client with computer; or dial -up access for the purpose of accessing the Internet 24 Internet Delays Implicit shall not be responsible for delays in file delivery or other services between the On -Line Services and Client's computers due to Internet availability, performance, or access that is beyond the control of Implicit 2.5 On -Line Services Interruptions Client agrees and understands that the On -Line Services are provided by Implicit on a best efforts basis and that occasional interruptions in the On -Line Services may occur Subject to the previous sentence, Implicit shall use commercially reasonable best efforts to make the On -Line Services available during the Term. Licenses. 3 1 Licensed Software For any and all proprietary software and/or third -party software contained in, or used or accessed in connection with, the Licensed Materials (the "Licensed Software"), Implicit grants to Client a non-exclusive and non -transferable license to use or access (as applicable) such Licensed Software, but only in connection with the authorized use of the On -Line Services and in accordance with this Agreement 32 Limitations Client (including its personnel and all other persons under its control) shall not disassemble, decompile, reverse engineer, download, copy, disclose, sell, assign, lend, lease, license, sublicense, or otherwise transfer or provide the On Line Services or the Licensed Materials or any component of, right in, or access to, the On -Line Services or the Licensed Materials to any other person or entity for any purpose, except as expressly provided in this Agreement. 33 Use. Client shall use the On -Line Services and the Licensed Materials only for the processing of its respective internal businesses. Client shall not (a) permit any third -party (including (ososm) 3 of 10 any contractors thereof) to use the Licensed Materials or (b) use the Licensed Materials in the operation of a service bureau, application service provider, or commercial timesharing service 4. Ownership. 4.1 Licensed Materials. Except for the licenses granted to Client pursuant to Section 3 Implicit and the applicable third -party licensors (a) own all right, title, and interest in and to the Licensed Material or (b) have licensing rights to such Licensed Materials All rights in and to the Licensed Materials not expressly granted to Client in this Agreement shall remain in Implicit and the applicable third -party licensors 42 Client Data (a) Client owns the Client Data The Client Data is deemed to be Confidential Information Implicit may use the Client Data only for purposes of providing the On -Line Services to Client in connection with this Agreement. Without limiting Implicit's obligations under Section 7 of this Agreement, Implicit shall use reasonable efforts to restrict access to the Client Data to Client and its personnel who have a need to know In the event the On -Line Services specifically require Implicit to maintain the Client Data, Implicit shall maintain the Client Data in accordance with Implicit's then -current back-up and archiving practices, OTHERWISE, IMPLICIT IS NOT RESPONSIBLE FOR MAINTAINING ANY CLIENT DATA (b) IN NO EVENT SHALL IMPLICIT BE RESPONSIBLE OR OTHERWISE LIABLE FOR ANY THIRD-PARTY'S UNAUTHORIZED ACCESS TO THE CLIENT DATA, UNLESS SUCH UNAUTHORIZED ACCESS IS THE RESULT OF IMPLICIT'S WILLFUL MISCONDUCT OR OTHER VIOLATION OF SECTION 7 OF THIS AGREEMENT. Support. Implicit shall provide the following Support to Client during the Tenn 5.1 Help Desk. Implicit shall be available during Business Hours to answer questions from, and provide general advice to, the Client Administrator concerning the On -Line Services and the Licensed Software 52 Error Corrections. Implicit shall use commercially reasonable best efforts to correct a material failure of the Licensed Software to substantially perform in accordance with the then - current published specifications for the Licensed Software 5.3 Maintenance and Support During the Term of this Agreement, as requested by Client Administrator, Implicit shall provide Client technical maintenance and support, including, without limitation the maintenance and support services set forth in the Scope of Work attached as Exhibit A to the Joint Procurement— Web Based Program Agreement. 54 Improvements During the Term of this Agreement, Implicit shall provide to Client any and all improvements, modifications, revisions, or updates to the Licensed Software that Implicit may make with respect to the Licensed Software 6. Compensation, 61 On -Line Services and Support. The compensation payable by Client for the On - Line Services and Support is set forth in the Joint Procurement— Web Based Program Agreement. (080807) 4 of 10 6.2 Excluded Sunnort Client shall compensate Implicit for any Excluded Support that Implicit provides at Client's request at Implicit's then -current time and materials rates plus reasonable expenses, provided, however, that nothing in this Agreement requires Implicit to provide any Excluded Support On or before the fifth day of each month following a month in which Implicit provides Excluded Support, Implicit shall deliver an invoice to Client for all Excluded Support that Implicit provided at Client's request during such previous month Client shall pay to Implicit the amount set forth in such invoice within 30 days following Client's receipt of such invoice 63 Past Due Amounts All past due amounts owed by Client shall bear interest until paid in full at the rate of 1.5% per month 7 Confidentiality. 71 Use and Disclosure Without the Consent of a party disclosing Confidential Information (the "Disclosing Party") or as otherwise provided in this Agreement, the party receiving such Confidential Information (the "Receiving Party") shall never disclose, copy, or use any Confidential Information of the Disclosing Party in any manner other than by disclosing such Confidential Information: (a) To an employee of the Receiving Party who has a need to know such Confidential Information as contemplated by this Agreement, or (b) As required to be disclosed by operation of law, provided that the Receiving Parry has promptly notified the Disclosing Party of any legal process requiring production of such Confidential Information prior to compliance with such process and has taken all reasonable precautions, including seeking a protective order if so requested by (and at the expense of) the Disclosing Party, to insure confidential treatment of any Confidential Information so disclosed 72 Degree of Care. The Receiving Party shall treat the Disclosing Party's Confidential Information with the same degree of care as the Receiving Party accords to the Receiving Party's own Confidential Information, but in no case less than reasonable care 7.3 Notification. The Receiving Party shall promptly advise the Disclosing Party if the Receiving Party learns of any unauthorized use or disclosure of the Disclosing Party's Confidential Information. 74 xclusions. Except for information that is required by law to remain confidential, Confidential Information of the Disclosing Party does not include information or materials that are (a) publicly available without violation of this Agreement or any other obligation of confidentiality, (b) already known by the Receiving Party without any obligation of confidentiality, (c) independently developed by the Receiving Party without any use of, or reference to, the Disclosing Party's Confidential Information, or (d) subsequently disclosed to the Receiving Party by a third -party without restriction and the disclosure by the third -party does not violate any obligation of confidentiality. 7.5 Ownership Unless otherwise provided in this Agreement, the Disclosing Party shall continue to own all of the Disclosing Parry's Confidential Information. 7.6 Return. The Receiving Party shall_ promptly return to the Disclosing Party, at the Disclosing Parry's sole cost and expense, all Confidential Information of the Disclosing Party upon the (080807) 5 of 10 earlier to occur of (a) a written request by the Disclosing Party or (b) termmahon of this Agreement for any reason by any Party. 77 Eemtable Remedies A breach of this Section 7 by the Receiving Party may cause irreparable harm and injury to the Disclosing Party for which money damages are inadequate. In the event of such breach, the Disclosing Party shall be entitled to seek injunctive relief, in addition to all other available remedies. 78 Suspension If Client breaches or threatens to breach this Section 7 Implicit may, without liability, immediately suspend providing the On -Line Services and Support until such breach or threatened breach is cured to Implicit! s reasonable satisfaction 8, Idemnificahon. The indemnification provisions contained in the Joint Procurement — Web Based Program Agreement, including, without limitation, Sections 602 and 603 of the Joint Procurement— Web Based Program Agreement, shall apply to this Agreement Warranties. Disclaimers and Limitations. 91 Warranties Implicit warrants and represents that (a) it has full title to and/or the right to license the Licensed Materials, Licensed Software and On -Line Services, and that Client's use of them in accordance with this Agreement will not infringe upon the patent, copyright, trademark, trade secret or other intellectual property or proprietary rights of any third party, (b) the Licensed Materials, Licensed Software and On -Line Services will perforin substantially in accordance with the specifications set fortis in Exhibit B to this Agreement; and (c) the Licensed Materials, Licensed Software and On -Line Services do not and will not contain any intentional feature which would in any way unpair or damage the operation of the Licensed Materials, Licensed Software or On -Line Services and/or any of Client's other software, other data and/or hardware, including without limitation (i) software locks, drop dead devices, back doors, time bombs, or other software routines which may disable a computer program automatically with the passage of time or under die positive control of a person other than Chent, or (it) any form of virus, a Trojan horse, worm or other software routine or hardware component which may (y) permit unauthorized access or (z) disable, erase or otherwise harm software, hardware or data 9.2 Disclaimers EXCEPT AS PROVIDED IN SECTION 9.1 OF THIS AGREEMENT, IMPLICIT MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WRITTEN OR VERBAL EXCEPT AS PROVIDED IN SECTION 91 OF THIS AGREEMENT, IMPLICIT DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON -INFRINGEMENT EXCEPT AS PROVIDED IN SECTION 9.1 OF THIS AGREEMENT, THE ON-LINE SERVICES AND THE LICENSED MATERIALS ARE PROVIDED "AS IS," "WHERE IS," AND "WITH ALL FAULTS " IMPLICIT DOES NOT WARRANT THAT THE OPERATION OF THE ON-LINE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. 93 Limitations. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANYONE ELSE ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT FOR INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9.4 Benefit of Bargain. THE LIMITATIONS IN THIS SECTION 9 REPRESENT THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN THE (080907) 6 of 10 PRICING UNDER THIS AGREEMENT AND ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES 10. Term and Termination. 10.1 Term This Agreement shall commence on the Effective Date and shall remain in force for a period of one (1) year from the Effective Date ("Initial Term', unless earlier terminated as permitted herein Upon the expiration of the Initial Term, the Agreement shall be automatically renewed on an annual basis ("Renewal Term") for each year thereafter, unless either Party has notified the other Party in writing at least 60 days prior to the end of the Initial Term or then -current Renewal Term, as applicable, of the non -renewal of this Agreement. This Agreement is subject to termination pursuant to Section 10 2 102 Termination (a) Sections 609 through 612 of the Joint Procurement — Web Based Program Agreement shall also apply to this Agreement (b) If the Joint Procurement — Web Based Program Agreement expires or is terminated or canceled for any reason, this Agreement shall also terminate 10.3 Effect of Termination Upon termination of this Agreement, (a) Client shall immediately discontinue use of the On -Line Services, the Licensed Materials, and Support and (b) all licenses granted to Client pursuant to this Agreement shall terminate immediately and without further notice Termination of the licenses granted in Section 3 shall be in addition to, and not in lieu of, any legal or equitable remedy available to Implicit. 11 Miscellaneous. 11 1 Force Maieure Neither Party shall be in default of this Agreement by ieaoon of any failure of its performance under this Agreement if such failure results, whether directly or indirectly, from a cause beyond its reasonable control, including any (a) international, federal, state, or local law, statute, or regulation, (b) act of God, (c) war or terrorism, (d) civil disturbance, (e) act of any government, or (f) failure of any third -party. 11.2 Amendments This Agreement may be changed, waived, or discharged only pursuant to a written agreement between the Parties. 11.3 Binding Effect This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns 11.4 Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument Faxed copies of manually executed signature pages to this Agreement are fully binding and enforceable without the need for delivery of the original manually executed signature page 11 5 Severabdity If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and (080e07) 7 of 10 effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 116 Notices (a) Any notices or communications to be given under this Agreement by either Party to the other Party shall be deemed to have been duly given if given in wittmg and (i) personally delivered, (n) sent by nationally recognized overnight courier, (iu) sent by facsimile (with electronic confirmation), or (iv) sent by mail, certified, postage prepaid with return receipt requested, in each case, at the address for such other Party set forth below: (i) If to Implicit, addressed to Implicit Solutions, L P , 8080 North Central Expressway, Suite 1250, Dallas, Texas 75206-1881, Attention- Graham C Beachum III, Facsimile. 214-891-8122, and (ii) If to Client, addressed to the contact information set forth in Exhibit A under the heading "Client Information " (b) Notices delivered personally, by courier, or by facsimile shall be deemed communicated as of actual receipt. Mailed notices shall be deemed communicated as of 10-00 a in on the third business day after mailing Any Parry may change such Parry's address for notice under this Agreement by giving five days, prior written notice to the other Party of such change in the manner provided in this Section 1 ]_6 117 Dispute Resolution The Dispute Resolution procedures set forth in Section 621 of the Joint Procurement— Web Based Program Agreement also apply to this Agreement 118 Equitable Remedies Notwithstanding the provisions for arbitration in this Agreement, either Parry may proceed to any state or federal courts in Colorado having competent jurisdiction, for the purpose of obtaining equitable relief, including, but not limited to temporary restraining orders, temporary injunctions, and/or specific performance. 11.9 Continuity During Dispute In the event there is a dispute between Client and Implicit, Implicit shall continue to perform the On -Line Services described in Section 2 11 10 Choice of Law This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the state of Colorado (without regard to such state's conflicts of laws rules) Venue of any action relating to, or arising out of, this Agreement that is not otherwise subject to arbitration shall lie exclusively in the courts located in Colorado 11 11 Costs Each Party shall pay all of such Party's own expenses relating to the negotiation and preparation of this Agreement, including the fees and expenses of such Party's counsel 11 12 Third -Party Beneficiaries This Agreement does not create, and shall not be construed as creating, any right enforceable by anyone not a Party (080807) 8 of 10 11.13 Assignment Client may not assign or sublicense this Agreement (or delegate Client's rights, duties, or obligations under this Agreement) without limpticit's written agreement, which shall not be unreasonably withheld 11 14 Entire Agreement This Agreement (including the exhibit(s) to this Agreement) and any master or similar agreement entered into by Implicit and Client that expressly incorporates this Agreement by reference,(a) embody the entire agreement and understanding between the Parties relating to the subject matter of this Agreement and (b) supersede all prior agreements and understandings relating to the subject matter of this Agreement. 11.15 Interpretation In the interpretation of this Agreement, except where the context otherwise requires, (a) "including" or "include" does not denote or imply any limitation, (b) "or" has the inclusive meaning "and/or," (c) "and/or" means "oil' and is used for emphasis only, (d) 'T, refers to United States dollars, (e) the singular includes the plural, and vice versa, and each gender includes each other gender, (f) captions or headings are only for reference and are not to be considered in interpreting this Agreement, (g) "Section" refers to a section of this Agreement, unless otherwise stated in this Agreement, and (h) all references to times are times in Central Time. 11.16 No Waiver The waiver or failure of a Party to exercise in any respect any right provided for under this Agreement shall not be deemed a waiver of any further right under this Agreement by such Party 1117 Survival. This Section 11 and Sections 1. 4, 6 7, 8. 9, and 10 shall survive termination of this Agreement [Balance of page intentionally blank] (080807) 9 of 10 IN WITNESS WHEREOF, this Agreement is entered into by the Parties to be effective on the Effective Date IMPLICIT: IMPLICIT PURCHASEPOOLING SOLUTIONS, LP By Implicit Solutions GP, LLC By� G HAM C BEACHUM III President ATTEST u (080807) 10 of 10 CLIENT: CITY OF FORT COLLINS B v Q lime B O'Neill 11 Director of Purchasing and Risk Management ATTEST �AR �V� G:• NOTARY `_ -491- PUBLIC N9 • � R a C,i' Exhibit A Software License and Services Agreement Terms and Conditions 1 Payment Terms. The compensation payable to Implicit for the On -Line Services and Support for this Agreement is set forth in the Joint Procurement - Web Based Program Agreement entered into by Implicit and Client that expressly incorporates this Agreement by reference 2. Client Information. Client's information is. (a) Name City of Fort Collins ("Client") (b) Address- P O Box 590 Fort Collins, CO 80522 (c) Send notices to the attention of Jim Hume City of Fort Collins Purchasing 215 N Mason, 2" 1 Floor Fort Collins, CO 80524 (d) Fax number. (970) 221-6707 3 Client Administrator. The Client Administrator's contact information is (a) Name. Jim Hume, Senior Buyer (b) Phone number (970) 221-6776 (c) Email address Jhume@fcgov.com (080807) PAGE A•1 Exhibit B Software License and Services Apreement On -Line Services PurchasePoolme Solutions Software Product Capabilities for use by Transit Aeencies in the Acquisition of Transit Buses Transitpool com is a browser based web -application that manages "the process" of pooling multiple transit agencies for the acquisition of transit buses This is done via an internet software application and a service that 1 Facilitates through web -based services the collaboration amongst the transit agency members of the pool in regard to performance and technical issues to increase the collaborative value add for each agency participating in the pool, 2 Provides for input of an online base specification to be used or modified by pool members, 3. Publishes a list of deviations (variables) that provides for the customized requirements of each agency; 4 Facilitates agency collaboration with manufacturers to provide feedback on specifications and requirements, 5 Facilitates "pre-RFP" conference calls amongst pool members and/or transit bus manufacturers, 6 Provides web -based services to define the weighting factors for the evaluation criteria to be included in the RFP, 7 Aggregates and creates an acceptable standard RFP package for transit agencies to issue to manufacturers in accordance with their own approval, notification, and other local terms, conditions and requirements, 8 Facilitates and supports all aspects of online collaboration and discussions amongst agencies and between agencies and manufacturers regarding. a Requests for clarifications, changes, approved equals, and permitted exceptions to the RFP; b. Amendments to the RFP, c. Providing software assistance to transit agencies in reviewing technical proposals for conformance with the specifications, d. Facilitating communications with manufacturers to resolve questions, identify proposal deficiencies, and minimize any variations from the pooling concept, e. Supporting the preparation of a request for best and final offers (BAFO) for agencies to issue to manufacturers, and (080807) £ Providing software tools to be used by transit agencies in evaluating proposals and awarding contracts 9. And providing, at transit agency's request, technical assistance for explanations and recommendations regarding• a The pooled procurement process, b Base specification, individual agency specification, and deviations (variations), PurchasePooling Solutions is currently delivered via www.transitpool com, as an mternet portal procurement application that utilizes a proprietary software engine to aggregate technical vehicle specifications, local/regional laws, local requirements, pricinglcost matrices, and commercial terms and conditions, as well as many other requirements associated with transit vehicle procurement The basis of the software solution is multiple members (transit authorities) using the portal as a template to input their vehicle requirements A "pool" begins by selecting the type of vehicle the authorities desire to procure The portal application provides a common interface for the gathering of each agency's unique and customized requirements Once pool specifications are established, the application engine applies several algorithms and database queries to generate various matrices that allow for the comparison of each agency's individual requirements and specifications to that of the base specification of the pool. This comparison allows for the pool members to see the common needs of their agency versus other pool members as well as the common needs of the group as a whole The application guides the members through not only the creation of their online specification, but provides the framework for interactive collaboration as the authorities evaluate the various matrices. The web -based application delivers a joint RFP with biddable options derived from multiple agencies entering individual specifications into the web -based technology. The software has the unique and proprietary ability to recognize the preferences of each participating agency and realize their unique requirements throughout the process The web -based program also provides the bid evaluation pricing matrix to calculate multiple bus specifications and equipment configurations for price comparisons and final cost The online access will allow die pool administrator to designate permission and "role based" security access The functionality of this application is divided into separate areas based on the "roles" the users have been assigned Those roles are: 1. Admin User — Maintains the Standard Bus Procurement Guideline document in the application. This user performs all administrative tasks such as creating users, setting milestone pool dates, activating and closing pools, editing users, creating and inputting the base vehicle specification, which is used as a starting point for the pool specification 2. Agency User (active pool) - Regular User that belongs to a pool These users participate by entering their preferences via the technical specifications forms, text revisions entries, and custom entries Agency Users also have the ability to utilize software tools to evaluate option pricing and to evaluate proposals based on specified, weighted criteria 3. Vendor User (active pool) —This is a limited access "role based" user and would not be able to access the specification building process. This user may be provided access to the application in order to create the data necessary to support the bid evaluation functionality, and to create any approved equals requests or other requests for clarification. (oaosm) LIST OF SUBCONSULTANTS E]RWIT E (City of Fort Collins) FEDERAL CONDITIONS - GENERAL 1. FEDERAL CONDITIONS It is a requirement of the Federal Government that activities financed, in part, with Federal funds and performed by athird party contmctorand its subcontractors on behalf of a Federal grantee must be carried out in accordance with Federal requirements Activities performed resultingfrom the original contractto this and any other prior or subsequent contract amendmentsthereto are financed, in part, by a grant from the United States DepartrnentofTransportation (DOT), eitherthe Federal TransitAdmin istration (FTA) or the Federal Highway Administration (FHWA), and are therefore subject to the applicable grant terms, conditions, and regulations. Accordingly, any contractorand its subcontractorsperforming activities under this contract must adhere to the Federal regulations stated herein as a condition of satisfactory performance. All subcontracts and subcontractors employed as a result ofthis contract are subject to the same conditions and regulations as set forth herein unless specifically exempted. The prime contractor shall ensure that its subcontractors at all tiers are made aware of and comply with these Federal regulations The prime contractor will be held liable for compliance failures by its subcontractors. Failure to comply will render the prime contractor responsible for damages and/crontracttermination NOTE to distributors, dealers, and manufacturerrepresentativesrespondingto this solicitation in lieu of the manufacturer they represent* Certifications contained herein shall be separately prepared and signed by the BIDDER/PROPOSER and THE MANUFACTURER. One set of certifications must be prepared and signed by the bidder/proposer, and one set of certifications must be prepared and signed by the manufacturer the bidder/proposer represents It is the bidders/proposersresponsibilitytoobtain the prepared and signed certificationsfrom the manufacturer and include them in the bid/proposal Bids/proposals failing to include both sets of prepared and signed certifications will be rejected as being nonresponsive. 2. BUY AMERICA (Applicable to bids/proposals $100,000 or more) The Buy America requirement provides that Federal funds may not be obligated for mass transportation projects unless steel, cement, and manufactured products, as defined by the U.S Federal Government, used in such projects are produced in the United States Asa condition of responsiveness, the bidder must submit as part of its bid a completed "Buy America Certificate" in accordance with 49 U S C. Section 5323(1) and with 49 CFR Part 6616. The submission of a false certification is a criminal act and in violation of 18 U.S Code 1001 Therefore, any Contractor who submits a written response to this procurement solicitation must certify and submit either the compliance or the non-compliance "Buy America Certificate" attached hereto Failure tosubmit this certificationwillrender the bidders/proposers entire submission non -responsive and thereby disqualified. A bidder/proposer who seeks to establish grounds for an exception to this requirementmust follow the procedure in the section entitled 'Exceptions. 3 DISADVANTAGED BUSINESS ENTERPRISE PROGRAM A. General — City of Fort Callms, recipient of federal financial assistance from the Federal Transit Administration (FTA) and the Federal Iirghway Administration (FI4WA), is committed to and has adopted a Disadvantaged Business Enterprise (DBE) Program in accordance with 49 C F.R Part 26, issued by the U S. Department of Transportation (DOT). It is the policy of City of Fort Collins to ensure nondiscrimination in the award and administration of U S DOT -assisted contracts and to create a level playing field on which Disadvantaged Business Enterprises (DBEs) can compete fairly for contracts and subcontracts relating to City of Fort Collins construction, services, supplies, equipment and professional service/consultant activities To this end, City of Fort Collins has developed procedures to remove barriers to DBE participation in the bidding and award process and to assisDBEs to develop and compete successfully outside of the DBE program In connection with the performanceofthis contract, the Contractorwill cooperate with City of Fort Collins in meeting these commitments and objectives. 2 DBE Goal - For a bid/proposal to be determined responsive, a bidder/proposer must demonstrate that it can meet the percentage indicated in the Special Provisions: DBE Participation Goal in the performanceofthis contract, or if it cannot, that rtperformed sufficient good faith efforts to meet this goal. A bidder/proposerwho is not responsive shall be meligible for award of contract. The DBEgoal remains in effect throughout the term of the contract 3 Eligibilityof DBEs - In order to insure that firms participatingas DBE's on Federally funded contracts are owned and controlled by socially and economically disadvantaged individuals, City of Fort Collins requires firms to be certified by certification procedures in compliance with Department of Transportation guidelines Only those DBE firms certified by this agency are eligible to be counted towards DBE goals in this contract City of Fort Collins requires that any DBEs listed by bidders or proposers for participation in the contract be certified as eligible DBEs as of the time of bid opening/proposal closing date. City of Fort Collins isavailabletoassist potential contractors inascertammgtheirDBE status 4. Verification Regarding DBEs Form Assurance- All bidders/proposers shall certify in their bid/proposal on the Verification RegardingDBE's form their intent to meet or exceed the established goal or demonstrate good faith efforts to meet the goal b Certificate Copies - Bidders/proposers are also required to submit detailed information regarding intended participation by DBE's firms on the Verification Regarding DBE's form. Ifthe bidder/proposerrs a certified DBE, a copy oftheirDBE certification or if the bidder/proposers subcontractingwith certified DBEs, a copy of their DBE certification(s) must be included. 5. Good Faith Efforts- When the DBE goal cannot be met, the bidder/proposermust document and submit Justification stating why the goal could not be met and demonstrating good faith efforts taken to meetthe DBE goal in their bid/proposal Such good faith efforts shall be in compliance with 49 C F R. Part 26, Appendix A (available upon request) Failure to document on the Verification Form 1) certified DBEs which meet or exceed the targeted goal, if any, or 2) failure to document good faith efforts, will render a bid/proposal non -responsive. 6 Counting DBE Participation Towards DBE Goals -DBE participation shall be counted toward meetmg the DBE goal in accordance with 49 C F R Part 26, Section 26 55 (available upon request) Definitions - Disadvantaged Business Enterprise or DBE means a for -profit small business concern - a That is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by ore or more such individuals; and b. Whose management and daily busness operations are controlled by one or more of the socially and economically disadvantaged individuals who own it Small business concern means, with respect to firms seeking to participate as DBEs in DOT -assisted contracts, a small business concern as defined pursuant to Section 3 of the Small Business Act and SmallBusiness Administration regulations implementuigrt (13 C F R part 121) that also does not exceed the cap on average annual gross receipts specified in 49 C.F R, Section 26 65(b). Socially and economhcallydisadvantaged individual means any individual who is acitizen (or lawfully admitted permanent resident) of the United States and who is a Any individual who arecipnentfindstobeasocially and economically disadvantaged individual on a case -by -case basis b Any individual in the following groups, members of which are rebuttablypresumed to be socially and economically disadvantaged: 1 `Black Americans," which includes persons having origins in any of the Black racial groups ofAfrica; 2 "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race, 3 'Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians, 4. "Asian -Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei, Samoa, Guam,theUS Trust Territories ofthe Pacific Islands (Republic of Palau), the Commonwealth ofthe Northern Marianas Islands, Macao, Fiji, Tonga, Kirbad, Tuvalu, Nauru, Federated States of Micronesia, or Hong Kong, 5. "Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal or Sri Lanka, 6 Women; Any additional groups whose members are designated as socially and economrcallydisadvantaged by the SBA, at such time as the SBA designation becomes effective B. CONTRACT PROVISIONS Special Provisions: DBE Participation Goal — City of Fort Collins has established a goal of 7.6% of the contract amount forthe utilization of firms owned and controlled by socially and econormcally disadvantaged persons This goal remains in effect throughout the term of the contract General Provisions: I DBE Obligation- Pursuant to 49 C F R Part 26 13, the Contractor is required to make the following assurance in its agreement with City of Fort Collins and to include this assurance in any agreements it makes with subcontractors in the performance of this contract - The Contractoror Subcontractor shall not drscnminateon the basis ofrace, color, national origin, or sex mthe performance ofthis contract The Contractorshall carry out applicable requirements of 49 C F R Part 26 in the award and administration of US DOTassrsted contracts Additionally, all of the requirements described in City of Fort Collin's Disadvantaged Business Enterprise Program, (available upon request) shall be met A contract that has a specific DBE participation goal is included in the Special Provisions above 2. Comphanca Failure by the Contractoror Subcontractorto carry out these requirements is a material breach ofthis contract, wh ich may result to the term matron of this contractor such other remedy, as City of Fort Collins deems appropriate (see section f) 3 Inclusion of DBE Requirements The Special Provisions and General Provisions 1 and 2. must be included in every subcontract, so that such provisions shall be binding upon each subcontractor, regular dealer, manufacturer, consultant, or service agency 4. Replacement/Substitutions ofDBE s The Contractoris required to have a valid arrangementwith the DBE(s) designated to fulfill the contract goal DBE participants have been identified in the Contractor's bid documents The Contractor may not terminate for convenience a ME subcontractor listed in thbrd and then perform the work of the terminated subcontractwrth its own forces or those of an affiliate, without the prior written consent ofCity of Fort Collins } 1 0 u b0 d � u C c 6. L a 9 7 q O Q A c_ L ai L d Y 9 C L L c •y c L O O O d H y 3�w d `o d P. a aui 3 m u A � L O R E � v Y (dj F O r O y p L .O u iYi e C d � % " z 02 Vod z� ds .. r L U : L c 7 u A W i u A u m L L a M u < u d 4 R o � � � c n c o y d u « aEi o L � u LD y R hL y L O da d R 4 R 0o a E c � � o � R L d m R 9 � d R � R h C u E c ` o R m c a d $ E 9 d O c z T R R R V u V L V h ti T C � a u e d � L « c o u � c � R L 0 W L L 0 0 � m m o « o E o � o L a c o d o L c y R d c u i sR L y � C O R L V O O y W O d � u h R L V R R 0 4`i F u � O R _ q d ppd a 4 w L « O � c C N cOi O O C � o h R r c c n c E e i y s t nq R � O C C R R W h R a=� � e 3 TN To, m Y aR E w V u d+ d W F V m h C. When a DBE subcontractor is terminated, or fails to complete its work on the contract for any reason, the Contractor is required to make good faith effortsto find another DBE subcontractor to substitute for the original DBE. These good faith efforts shall be directed at finding another DBE to perform at least the same amount of work under the contract as the DBE that was terminated, to the extent needed to meet the contract goal d. If the Contractor or a non -DBE firm performs the work originally committed to a DBE, the Contractor shall submit a revised work plan to City of Fort Collins detailing how the DBE goal will be met If the Contractor fails to meet the goal or to make good faith efforts to meet the goal, sanctions may be applied against the Contractor 5. Reporting Requirements- The Contractor shall provide all information and reports required bygjtx of Fort Collins and shall perm it access to its books, records, accounts, other sources of information and its facilities as may be determined by City of Fort Collins to be pertinent to ascertain compliance with the regulations or directives Monthlyreports of DBE paymentsto DBE firs shall be submitted to City of Fort Collins on the DBE Contract Compliance Form ivith each invoice for payment submitted for the life of the contract Invoices will not be processed for approval unless the report is attached Monitoring and Enforcement- Contractors are required to make good faith effortsto meet the DBE goal of the contract with DBEs that are certified. The DBE firms must perform a commercially useful function in order to be counted towards the goal Firms who fail to meet the goal must demonstrate that they have exerted good faith efforts to meet the goal The definition of "commercially useful function" and "good faith efforts" shall, in the discretion of City of For Collins meet criteria set forth by the Department of Transportation under 49 C.F R Part 26 Failure by the Contractor to comply with its DBE contractual obligations shall constitute a substantial breach of the contract. If City of Fort Collins determines that the Contractor is in breach of the contract, it shall give the Contractor thirty (30) days notice to comply. Should the Contractor fail to cure the breach, City of Fort Collins may terminate the contract, or withhold all applicable paymentsfrom the Contractor, and may enforcethe contract and sue to collect any damages resulting from the Contractors breach. The foregoing is in addition to any other remedies authorized bylaw. 4. RESTRICTIONS ON LOBBYING (Applicable to bids/proposals $100,000 or more) Section 319 of Public Law 101-121 generally prohibits using Federally appropriated funds to pay for influencing Federal government officials in connection with specific grants and contracts Lobbying is not prohibited Using Federally appropriated funds to pay for lobbying is prohibited Section 319 also requires that each person who requests orreceivesa Federal contract, grant, cooperative agreement, loan, or a Federal commitment to insure or guarantee a loan must disclose lobbying In addition, any recipient of a sub -grant, contract, or subcontract exceeding $100,000 is required to certify compliance and submit discbsure fors if appropriate. § ( z■ 2 �j $)\7k/ /e§�§ M/eom »0 /))§ §z _Cc §\�( oS2/ \ \ � ® ) qe)— //\� ,\ a ^ \ } } En} The term "recipient" is defined in the law to include all contractors and subcontractors at any tier of the recipient of fundsreceived in connectionwith aFederal contract, grant, loan, or cooperative agreement Manufacturers or their authorized sales representative ofvehicles and related equipment are thus included Therefore, any Contractorwho submits a written response to this procurement solicitation must certify and submit the "Certification Regarding Lobbying"on page FC-19 Failure to Submitthis Certificationwill render the Contractor's entire submission nonresponsive and thereby disqualified 5. DEBARMENT AND SUSPENSION (Applicable to bids/proposals $100,000 or more) The terms of the U S. Department of Transportation regulation, "Suspension and Debarment of Participants in DOT Financial AssistancePrograms,"49CF.R Part 29, are applicable to any agreement or contract resulting from this procurement solicitation Therefore, any Contractor who submits a written response to this procurement solicitation must sign and submit with the response the "Certificate Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion — Lower Tier Covered Transactions" on page FC-20 Failure to submit this Certificate will render the Contractor's entire submission non -responsive and thereby disqualified In addition, any contractorentering into a contractor agreementwith City of Fort Collins resultmgfrom this solicitation and who subsequently anticipates entering into any subcontract exceeding $100,000 associated with this solicitation shall require the prospective subcontractor(s) to sign and submit the Certificate mentioned immediately above to City of Fort Collins prior to executing the subcontract(s) The subcontract(s) shall not beexecuted until after City of Fort Collins has given the prime contractor written notice to do so. This procedure is necessaryto establishto the satisfactionof City of Fort Collins that a potential subcontractor has not been debarred or suspended 6. PROTEST PROCEDURES 1 CITY OF FORT COLLINS PROTEST PROCEDURES Procurement protest procedures of City of Fort Collins are published elsewhere in this solicitation. These are the procedures to follow regarding a protest to this procurement solicitation 2. FEDERAL TRANSIT ADNUMSTRATION PROTEST PROCEDURES The Federal TransitAdmmistration(FTA) may entertain a protest only ifthe protest alleges that City, of Fort Collins failed to have or follow written protest procedures Such a protest must be filed, in accordance with FTA Circular4220 ID, as updated, with the FTA not laterthan five (5) working days after City of Fort Collins renders a final protest decision, or five (5) working days after the protestor knows or has reason to know that City of Fort Collins has failed to render a final decision Underthe following conditions, City of Fort Collins may proceed with the procurement in spite of a pending protest(1) The items described to be procured are urgently required; (2) Delivery or performance will be unduly delayed by failure to make the award promptly, or, (3) Failureto make prompt award will otherwise cause undue barn toCity of Fort Collins or the Federal Government 7. EMPLOYEE PROTECTIONS The requirementsofthe clauses in 29 C F.R Section 5.5(b) or the immediatelyfollowing subsections (I- 4)ofthis are applicable to any contract resulting from this solicitation subject to the overtime provisions of the contract work hours and Safety Standards Act and not to any of the other statutes cited in 29 C.F R Section 5 1 The Contractor and subcontractors shall maintain payrolls and basic payroll records during the course ofthe work and shall preserve them for a period ofthree years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates` of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid The records to be maintained under this clause shall be made available by the Contractor and subcontractors for inspection, copying, or transcription by authorized representatives of the FTA or FHWA as applicable, the U S DOT, or the Department Labor, and the Contractor and subcontractors will permit such representatives to interview employees during working hours on the job 1 Overtime Requirements No Contractor or subcontractors contracting for any part of the contract work which may require or involve the employmentof laborers or mechanics shall require or permit any such laborer or mechanic in any work week in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at arate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such work week 2 Violation Liability for Unpaid Wages Liqudated Damages In the event of any violation of the requirements of 29 CT R Section 5.5(b)(1), the Contractor and any subcontractors responsible therefore shall be liable for the unpaid wages. In addition, such Contractor and subcontractors shall be liable to the United States (in the case of work done under contractfor the District of Columbia or a territory, to such districtor to such territory)for liquidated damages Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employedin violation of 29 C.F.R. Section 5.5(b)(1) in the sum of $10 00 for each calendar day on which such individual was required or permittedto work in excess of the standard workweek of forty hours without payment of the overtime wages required by 29 C F.R. Section 5 5(b)(1) ' 3. Withholding of Unpaid Wages and Liquidated Damages The Federal Transit Administration or the Federal Highway Administration or City of Fort Collins shall upon its own action or upon written request of an authorized representativeofthe Department of Labor withhold or cause to be withheld from any moneys payable on account of work performed by the Contractor, or any subcontractors under any such contract or any other federal contict with the sameprime Contractor or any otherfederally-assisted contractsubleetto the contractwork hours and safety standards act which is held by the same prune Contractor, such sums as may be determmedto be necessary to satisfy any liabilities of such Contractor or subcontractors for unpaid wages and liquidated damages as provided in the clause set forth at 29 C F RSection 5.5(b)(2) 4 Subcontracts The Contractor and subcontractors shall insert in any subcontracts the clauses set forth in the "Employee Protections" section of this Contract or Agreement and also a clause requiring the subcontmctorstoinclude these clauses inany lower tier subcontracts. The prime Contractorshall be responsible for compliance by subcontractors or lower tier subcontractorwith the clauses set forth in the "Employee Protections" section of this Contract or Agreement 8. CLEAN AIR (AH2 QUALITY) The Contractor, by responding to this solicitation, acknowledges that any facdibes or equipment acquired, constructed, manufactured, or improved for which the Contractor is responsible as a part of any project resulting from a contract or agreement with City of Fort Collins may be subject to the following Environmental Protection Agency (EPA) regulations, among others: (])"Control of Air Pollution from Motor Vehicles and Motor Vehicle Engines," 40 C F R Part85, (2)"Control of AirPollution from New and In -Use Motor Vehicles and New and In -Use Motor Vehicle Engines- Certification and Test Procedures," 40 C.F R Part 86, and (3) "Fuel Economy of Motor Vehicles," 40 C F R Part 600 9. ACCESS REQUIREMENTS FOR INDIVIDUALS WITH DISABILITIES The contractor selected as a result of this solicitation shall comply with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.0 Sections 125 01 et sett , Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S C Section 794, 49 U S.0 Section 5301(d); and the following regulations and any amendments thereto: I US DOT regulations, "Transportation Services forIndividuals with Disabilities (ADA)," 49 C F R Part 37, 2 U S DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance," 49 C F RPart 27, 3 U S DOT regulations, "Amencans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 49 C F R. Part 38, 4 Departmentof Justice (DOJ) regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 CY R. Part 35; 5. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C F.R. Part 36; 6 U.S. GSA regulations,"Accommodations for the Physically Handicapped,"41CF.R Subpart101-19, 7. US Equal EmploymentOpportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CY R Part 1630, 8. U.S. Federal Communications Commission regulations, Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled," 47 C F.R. Part 64, SubpartF, and 9. FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F R Part 609 10. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 The Contractor selected as a result of this solicitation shall comply, and assure the compliance by its subcontractors under this project, with all requirements of Title VI of the Civil Rights Act of 1964, as I0 amended, 42 U.S C Section 2000d, 49 U S C Section 5332; and U S. DOT regulations, "Nondiscriminatiomn Federally -Assisted Programs of the Department of Transportation —Effectuation of Title VI of the Civil Rights Act," 49 CY R. Part 21. 11. TB RD PARTY CONTRACT DISPUTES OR BREACRES The federal governmenthas a vested interestm the settlementof any dispute, default, or breach involving any federallgassisted third pasty contract Therefore City of Fort Collins shall pursue all legal rights available under any third party contract involving FTA or FHWA funds The federal government reserves the right to concur many compromise or settlement of any claim by City of Fort Collins involving any third party contract Accordingly, City of Fort Collins shall notify the federal governmentof any current or prospective major disputes,breach, or litigation pertaining toany contractresultingfrom this solicitation Pnortoseekmgto name the federal government as a party to any type of litigation for any reason involving said contract, City of Fort Collins will first inform the federal government before doing so 12. ENERGY CONSERVATION The contractorselected as a result of this solicitation shal I complywith mandatory standards and policies relating to energy efficiency that are contained in applicable State energy conservation plans issued in compliance with the Energy Policy and Conservation Act, 42 U S C , Sections 6321 et seq, 13. CARGO PREFERENCE: USE OF UNITED STATES -FLAG VESSELS As required by46 C F R. Part 381, the contractor selected as a result of this solicitation agrees To utilize privately owned United States -flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, materials, or commodities pursuant to this contractto the extent such vessels are available at fair and reasonable rates for United State lag commercial vessels 2. To furnish within 20 days fallowirigthe date of loading forsbipments originatingwithin the United States, or withm 30 working days following the date of lading for shipment origuiatmgoutside the United States, a legible copyof a rated, "on -board" commercial ocean bill -of -lading in English for each shipment of cargo described in paragraph (1) above to the recipient (through the prime contractorm case of subcontractorbills-of-lading) and to the Division ofNational Cargo, Office of MarketDevelopment, Maritime Administration, 400 Seventh Street, S.W., Washington,D C 20590, marked with appropriate identification of the project 3. To insert the substance of the provisions of this clause in all subcontracts issued pursuant to tilts contract. 14. EQUAL EMPLOYMENT OPPORTUNITY The contractor selected as a result of this solicitation may not discriminate against any employee or applicant for employment because of race, color, creed, sex, disability, age, or national origin. The it contractoragrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, sex, disability, age, or national origin Such action shall include, but not be limited to, the following; employment upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation, and selection for training, including apprenticeship The contractor shall insert the foregoing provision in all subcontracts, except subcontracts for standard commercial supplies, raw materials, or construction. 15. FALSE OR FRAUDULENT STATEMENTS & CLAIMS By executing any contract resulting from this solicitation, the contractor acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose penalties under the Program Fraud Civil Remedies Act of 1986. 16. RIGHTS IN DATA & COPYRIGHTS The contractor selected as a result of this solicitation agrees that, as applicable, the use of any data produced or delivered under the terms of said contract, including, but not handed to, engineering drawings and associated lists, specifications process sheets, and technical reports, shall be governed by provisions of 49 C.F.R. ' 18 34. In addition, the contractoragrees that it will not publish such data without the written consent of City of Fort Collins and, if appropriate, the Federal Government 17. NO FEDERAL GOVERNMENT OBLIGATIONS Although any contract resulting from this solicitation shall be funded with Federal grant funds, absent the Federal Government's express written consent, the Federal Government shall not be subject to any obligations or liabilities to the contractor, or any other person other than City of Fort Collins in connection with the performance of the contract Notwithstandmganyconcurrence thatmaybeprovided by the Federal Government in or approval of any solicitation or contract, the Federal Government has no obligations or liabilities to any party, including the contractor 18. AUDIT & INSPECTION OF RECORDS The contractor selected as a result of this solicitation agrees that City of Fort Collins the Comptroller General of the United States, and the Secretary of Transportation, or any of their duly authorized representatives,shall, for the purpose of audit and examination, be permitted to inspect all work, materials, payrolls, and other data and records, and to audit the books, records, and accounts relating to the performance of the contract. Further, said contractor agrees to maintain all required records for at least three 3 years after City of Fort Collins has made final paymentand all otherpendmg matters are closed 19. FEDERAL CHANGES This project is funded in part by a grant from the Federal Transit Administration (FTA) or the Federal HighwayAdministration(FHWA) Federal laws, regulations, policies, and related administrative practices are applicable to the project on the date fie grant was authorized by the FTA or the FHWA and may be 12 modified from time to time The Contractor is hereby instructed that the most recent of such Federal requirements wil I govern the administration of the project at any particularttme, except if the FTA or the FHWA issues a written determination otherwise Federal requirements applicable to this project may change and the changed requtrementswill apply to the project as required, unless the Federal Government determines otherwise 20. CLEAN WATER The Contractor acknowledges that any facilities or equipment acquired, constructed, manufactured, or improved for which the Contractor is responsible as a part of any project resulting from a contract or agreementwith City of Fort Collins maybe subject to complymgwith all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 US C ' ' 1251 et seq Among other things. (1) The Contractor agrees to protect underground sources of drinking water consistent with the provisions of the Safe Drinking Water Act of 1974, as amended, 42 U S C 1 ' 300h at seq (2) The Contractor agrees to comply with the notification of violating facilities provisions of Executive Order No 11738, Administration oftheClean Air Act and the Federal WaterPollution Control Act with Respect to Federal Caltracts, Grants or Loans, 42 US C 1 7606 note. 21. ENVIRONMMNTALREQUIRE DEEPTTS The Contractor agrees tocomplywith all applicable requirements of the National Environmental Policy Act of 1969, as amended, 42 U S C 1 1 4321 at seq consistent with Executive Order No 11514, as amended, Protection and Enhancementof Environmental Quality, 42 U S C 1 4321 note, FTA statutory requirements on environmental matters at 49 U S C. ' 5324(b), Council on Environmental Quality regulations on compliance with the National Environmental Pohey of 1969, as amended, 40 C.F R. Part 1500 et seq, andlomtFHWA/FTA regulations, Environmental Impact andRelated Procedures, 23 C F R. Part 771 and 49 C F R Part 622 22. NOTIFICATION OF FEDERAL PARTICIPATION In any announcement of any third party contract involving Federal grant funds for goods or services (including construction services) having an aggregate value of $500,000 or more, City of Fort Collins will specify the amountof Federal assistance to be used to financing that acquisition of goods and services and to express the amount of that Federal assistance as a percentage of the total cost of that third party contract 23. TERAMNATION FOR CONVENIENCE City of Fort Collins may terminatethis contract, in whole or in part, at any time by written noticeto the Contractor when Ctrs in the Governments best interest The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up tothe time of termination The Contractor shall promptlysubmu its termination claim to City of Fort Collins to be paid the Contractor. Ifthe Contractor has any property in its possession belonging to City of Fort Collins, fire Contraetorwdl account for the same, and dispose of it in the mannerin which City of Fort Collins directs 13 24. TERMINATION FOR DEFAULT If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contractis for services, the Contractorfailsto perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, City of Fort Collins may termmate this contract for default. Term ination shal I be effected by serving a notice oftermination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract pnce for supplies delivered and accepted, or services performedn accordance with this contract. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as ifthe terminationhad been issued for the convenience of City of Fort Collins 25. PATENT RIGHTS If any invention, improvement, or discoveryof or any contractoror subcontractor is conceived or first actually reduced to practice in tite course olir under this Contractor Agreement, and that invention, improvement, or discovery is patentable under the laws ofthe United States of America or any foreign country, City of Fort Collins and the contractoror any subcontractorshall notify the ETA or the FHWA immediately and provide a detailed report The rights and responsibilities of City of Fort Collins, the contractor or subcontractor of any tier, and the Government with respect to such invention, improvement, or discovery will be determined in accordance with applicable Federal laws, regulations, policies, and any waiver thereof 26. CLEAN AIR AND CLEAN WATER Asa condition of satisfactorycontraet performance,tlle contractorshall report to City of Fort Collins. the ETA, or the FHWA, as applicable, and to the Regional Environmental Protection Agency (EPA) the use of facilities considered to be placed on EPAs List of Violating Facilities, refrain from using violating facilities, report violations to the ETA, or the FHWA, as applicable, and the Regional EPA Office, and comply with the inspection and other requirements of the following 1 Section 114 of the Clean Air Act, as amended, 42 U.S.0 ' 7414, as well as other applicable provisions of the Clean Air Act, as amended, 42 U S C ' ' 7401 et seg ; and, 2 Section 308 of the Federal Water Pollution Control Act, as amended,33 U.S C. ' 1318, as well as other provisions of the Federal Water Pollution Control Act, as amended, 33 U S.0 ' ' 1251 et seg 27. FLY AAJMRICA The Contractor understands and agrees that the Federal Government will not participate in the costs of international air transportation of any persons involved in or property acquired for the Projectunless that air transportation is provided by U.S -flag air carriers to the extent service by U.S -flag air carriers is available, in accordancewtth the IntemationalAir TransportationFair Competitive Practices Act of 1974, as amended, 49 U.S C. § 40118, and with U.S. GSA regulations,"Use ofUnited States Flag Air Camers," C.F.R §§ 301-10.131 through 301-10 143. 14 BUY AMERICA CERTIFICATE CERTIFICATION OF COMPLIANCE WITH SECTION 165(a) The bidder/proposer hereby certifies that it and/or the manufacturer it represents will comply with the requirements of section 165(a) of the Surface Transportation Assistance Act of 1982, as amended, and the applicable regulations in 49 CFR part 661 Date 8116.A7 Signature OP � Title yoreS1;9i°i Company Name Implicit PurchasePooline Solutions, L.P. CERTIFICATION OF NON-COMPLIANCE WITH SECTION 165(a) The bidder/proposer hereby certifies that it and/or the manufacturer it represents cannot comply with the requirementsof section 165(a) of the Surface Transportation Assistance Act of 1982, as amended, but it may qualify for an exception to the requirement pursuant to section 165(b)(2) or (b)(4) of the Surface Transportation Assistance Act of 1982, as amended, and regulations in 49 CFR 661 7 Date Signature Title Company Name If a successful bidder/proposer fails to demonstrate that it is in compliance with its certification, it will be required to take the necessary steps in order to achieve compliance, If a bidder/proposertakes these necessary steps, it will not be allowed to change its original bid/proposed price If a bidder/proposer does not take the necessary steps, it will not be awarded the contract if the contract has not yet been awarded, and it is in breach of contract if a contract has been awarded 15 CERTIFICATION REGARDING LOBBYING I, Graham C. Beachum, III, President of Implicit Solutions, GP, LLC the undersigned hereby certify (Typed Name and Title of Company Official) on behalf of Implicit PurchasePooline Solutions, L.P. to the best of his or her (Typed Name of Company) knowledge and belief that No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer of emloyee of any agency, a Member of Congresspn officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan or cooperati ve agree in ent, the undersigned shall complete and submit Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions 3 The undersigned shall require that the language of this certification be included in the award documents for all sub -awards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly This certification is a material representation of fact upon which rehance was placed when this transaction was made or entered into Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U S Code Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than 100,000 for each such failure Executed this_ / day of AU1�, 200__� 13 Signature of Authorized Official) (Title of Authorized Official) 16 CERTIFICATE REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION -- LOWER TIER COVERED TRANSACTIONS 1 The Lower Tier Participant, Implicit PurchasePooline Solutions, L.P, [Typed Name of Contractor] certifies, by submission of this bid or proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency 2 Where the prospective lower tier (the contractor) participant is unable to certify to any of the statements in this certification, such prospective participant sh$I attach an explanation to this bid or proposal THE LOWER TIER PARTICIPANT, Implicit PurchasePooline Solutions, L.P, [Typed Name of Contractor] CERTIFIES OR AFFIRMS THE TRUTHFULNESS AND ACCURACY OF THE CONTENTS OF THE STATEMENTS SUBMITTED ON OR WITH THIS CERTIFICATION AND UNDERSTANDS THAT THE PROVISIONS OF 31 U S C SECTIONS 3801 ET SEO ARE APPLICABLE THERETO gnature and Tile of Authorized Official 12 /rW)WZ�� S 1z o Date 17 PROREBITION AGAINST EMPLOYING ILLEGAL ALIENS Pursuant to Sections 8-17 5-101 & 102, C.RS , et seq , CONSULTANT represents and agrees that As of the date of thisAGREEMENT CONSULTANT does not knowingly employ or contract with an illegal alien; and CONSULTANT has participated orattempted to participate in the basic pilot employmentvenfication program created in Public Law 208, I 04th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, administered by the United States Departmentof Homeland Security (the `Basic Pilot Program'D in order to verify thatCONSULTANT does not employ any illegal aliens CONSULTANT shall not knowingly employ or contract with an illegal alien to perform work under this AGREEMENT or enter into a contract with a subcontractor that fails to certify to CONSULTANT that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this AGREEMENT. CONSULTANT shall continue to apply to participate in the Bask Pilot Program and shall in writing verify same every three (3) calendarmonths thereafter, until CONSULTANT is accepted or the public contract for services has been completed, whichever is earlier The requirements of this section shall not be required or effective if the Basic Pilot Program is discontinued. CONSULTANT is prohibited from using Basic Pilot Program procedures to undertake pre -employment screening ofjob applicants while thisAGREEMENT is being performed. If CONSULTANT obtains actual knowledgethat a subcontractorperformingwork under this AGREEMENT knowingly employs or contracts with an illegal alienCONSULTANT shall. Notify such subcontractorand the CLIENT within three days that CONSULTANT has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and Terminatethe subeontractwith the subcontractor ifwithin three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien, except that CONSULTANT shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. CONSULTANT shall comply with any reasonable request by the Colorado Department of Labor and Employment(the "Department') made in the course of an investigation that the Department undertakes or is undertaking pursuant to the authority established in Subsection 817.5-102 (5), C R S. If CONSULTANT violates any provision of this AGREEMENT pertaining to the duties unposed by Subsection 8-17 5-102, C RS. the CLIENT may terminate thisAGREEMENT. If this AGREEMENT is so terminated, CONSULTANT shall be liable for actual and consequential damages to the CLIENT ansuig out of CONSULTANT's violation of Subsection 817 5-102, C R S. The CLIENT will notify the Office ofthe Secretary of State if CONSULTANT violates this provision ofthis AGREEMENT and the CLIENT terminates the AGREEMENT for such breach.