1131PL-19-R-CP71025_-_Appendix_A-F.PDF

Appendix A Template Success Fee and Cost Share

Agreement

[date]

[Addressee Title U.S. Firm Name-Full Official Name Address]

Re: ______________________[Country: Feasibility Study or Technical Assistance Title] Success Fee and Cost Share Agreement USTDA Activity No. _________

Dear ________:

We are pleased that ______ (“Grantee”) has selected _________ (“Contractor”) to perform a feasibility study or technical assistance (“Study” or “TA”) on the ________ project (“Project”) with funds to be partially provided by the U.S. Trade and Development Agency (“USTDA”). We expect that the Grant Agreement between USTDA and the Grantee (“Grant Agreement”) will be signed in the near future and that the Grantee will negotiate a contract with Contractor to perform the Study (“Contract”). We are hopeful that the completion of the Study will lead to further business opportunities for Contractor and other U.S. firms.

The Terms of Reference for the Study (“Terms of Reference”) and the budget estimate (“Budget Estimate”) are based upon the proposal submitted to USTDA by Contractor and USTDA's review of the proposal. The Budget Estimate has been established at US$______.

USTDA has approved a grant to the Grantee of US$______ (“Grant”) to partially fund the Study.

USTDA has conditionally approved the selection by the Grantee of Contractor as the contractor for the Study. USTDA final approval of this selection will be effective when Contractor agrees with the “Success Fee” and “Cost Share” provisions described below.

A. Success Fee

(1) Success Fee Basis. USTDA and the Contractor anticipate that the Contractor may have the opportunity to successfully participate in the implementation of the Project. As such, the Contractor shall refund to USTDA the “Success Fee” as follows:

(a) Finance-Based. The Contractor shall refund to USTDA the total amount of the

USTDA- disbursed Grant funds if, in connection with the initial financial closing (debt and/or equity) with respect to the Project or any related project based substantially upon the Study (“Financial Closing”), the Contractor or any of its parent(s), subsidiary(s), or affiliate(s):

(i) takes an equity position in such project, or

(ii) commits its own financial resources (as evidenced by an outlay of implementation funds) for such project, or

(iii) whether or not such party is a principal or equity holder in such project, the party receives proceeds from a drawdown of funds from a public or private financial institution, or other person or entity acting as a financier.

Refund by Contractor of the total amount of USTDA-disbursed Grant funds must be made regardless of the amount of equity, outlay, or drawdown.

Alternatively, if none of the above events take place but the Contractor earns revenue in connection with the Project or the Study, then the “Success Fee” in (b) below shall apply:

(b) Revenue-Based. The Contractor shall refund to USTDA an amount equal to ___% of the total gross revenue earned by the Contractor, including its parent(s), subsidiary(s), and affiliate(s), which are related to the Project and any project based substantially upon the Study (“Revenue”), not to exceed in aggregate the total amount of USTDA-disbursed Grant funds.

(c) Measurement Period. The Success Fees in (a) and (b) above will be measured from the time this Success Fee and Cost Share Agreement is signed by both parties until December 31, 2023 (“Measurement Period”). The Success Fee repayment requirement does not apply to those events set forth in (a) and (b) above which take place before or after the Measurement Period.

(2) Success Fee Reporting.

(a) First Success Fee Report Contractor shall provide to USTDA, by March 1, 2017, a brief statement (“Success Fee Report”) indicating whether any of the events in (1) above has taken place during the period from the signature date of this Success Fee and Cost Share Agreement through December 31, 2016.

(b) Subsequent Success Fee Reports. Contractor shall provide to USTDA, by March 1 of each of the subsequent seven years following the first Success Fee Report (2018, 2019, 2020, 2021, 2022, 2023, and 2024), a Success Fee Report indicating whether any of the events in (1) above has taken place during each respective preceding calendar year (2017, 2018, 2019, 2020, 2021, 2022, and 2023).

(c) Format. All Success Fee Reports shall follow the format set forth in Annex I hereto, unless USTDA otherwise authorizes.

(d) Confidentiality. It is the responsibility of Contractor to ensure that any confidential information pertaining to these Success Fee Reports, or any other aspect of this Success Fee and Cost Share Agreement, be clearly marked as such and be provided separately from a version which is suitable for public distribution. USTDA will maintain the confidentiality of such information in accordance with applicable law.

(e) Repayment in Full. In the event that the USTDA Grant funds disbursed in connection with the Project have been repaid in full, no further Success Fee Reports shall be required.

(3) Refund Date.

(a) If any of the events in A(1)(a) above occurs, the Contractor shall submit, within 30 days of Financial Closing, a Success Fee Report accompanied by a refund of the total amount of USTDA-disbursed Grant funds.

(b) If Revenue, as defined in A(1)(b) above, is earned, the Contractor shall submit a refund of the Success Fee with its next Success Fee Report required pursuant to A(2) above.

(4) Timeliness of Reporting and Refund. If Contractor does not provide the Success Fee Reports and refunds in accordance with the schedule in A(2) and A(3) above, or if the information or amounts contained therein are inaccurate, USTDA shall be entitled to a refund from Contractor of the total amount of USTDA-disbursed Grant funds, less Success Fee refunds already made to USTDA. USTDA shall first provide written notice to Contractor of such deficiency and shall allow Contractor thirty (30) days to correct the matter before the full amount becomes due.

B. Cost Share

(1) Budget Estimate. The Budget Estimate for the Terms of Reference is set forth in Annex

II hereto. The Budget Estimate represents Contractor’s best estimate of the cost of the goods and services to be provided, broken down by labor rates and other direct costs. No fee or profit is allowed. The Budget Estimate provides the basis for establishing the cost share ratio between USTDA and the Contractor.

(2) Cost Share Amount. In addition to the USTDA Grant funds provided, Contractor shall ensure that Contractor and/or its subcontractors cover at least US$_____ of costs to complete the full Terms of Reference (“Cost Share”).

(3) Statement of Expenditures.

(a) Before USTDA will make the final disbursement of Grant funds, a financial officer of

Contractor must certify that Contractor has complied with the Cost Share requirement (“Certified Statement of Expenditures”). The Certified Statement of Expenditures must either accompany the final invoice or be separately submitted by Contractor. In either case, it must contain a detailed breakdown of costs incurred to complete the full Terms of Reference and must follow the format set forth in Annex III hereto. The Contractor must submit an accompanying written explanation of any substantial change between the Budget Estimate and the Certified Statement of Expenditures.

“Substantial change” means any variation of 30% in any line item such as direct labor costs per task, international air travel, or per diem.

(b) If the Certified Statement of Expenditures is not provided, or is inaccurate, USTDA shall be entitled to a refund from Contractor of the total amount of the USTDA-disbursed Grant funds, less any Success Fee refunds already made to USTDA.

USTDA shall first provide written notice to Contractor of such deficiency and shall allow Contractor thirty (30) days to correct the matter before the full amount becomes due.

(c) Notwithstanding its approval of the final invoice for payment, USTDA may later audit the costs listed in the Certified Statement of Expenditures and receive a refund from Contractor to the extent that the Certified Statement of Expenditures is not accurate or the costs shown are not reasonable and documented to explain the composition of costs, rates and basis of allocation.

(4) Study Cost Adjustments.

(a) The maximum USTDA contribution to the Study is the Grant amount. The actual

Study funding contributions by USTDA and Contractor must remain proportionate to that set forth in this Success Fee and Cost Share Agreement (USTDA US$_____ :

Contractor US$_____ ).

(b) If the total cost of the Study is less than the Budget Estimate, Contractor shall so indicate and either reduce the amount of the final invoice accordingly or refund to USTDA a proportionate amount of the Grant funds already disbursed.

(5) Pre-Grant Agreement Costs. Study-related costs that are incurred by Contractor and/or its subcontractors prior to the signature of the Grant Agreement may not be charged to the USTDA Grant. These costs may be included as part of the Cost Share, however, provided they are for tasks included within the Terms of Reference. No costs incurred in preparing the proposal for USTDA funding (including the contracting for a consultant to represent the Contractor at USTDA) may be charged to the USTDA Grant or to the Cost Share.

C. Books and Records

Contractor and its subcontractors funded under the Grant Agreement shall maintain, in accordance with generally accepted accounting procedures, books, records, and other documents, sufficient to reflect properly all transactions under or in connection with this Success Fee and Cost Share Agreement. These books, records, and other documents shall clearly identify and track the Success Fee events in A above (for Contractor) and the total cost of the Study including the Cost Share (for Contractor and its subcontractors) as described in B above.

Such books, records, and documents shall be maintained during, and for a period of two (2) years after, the Measurement Period. Contractor and its subcontractors shall afford USTDA, or its authorized representatives, the opportunity at reasonable times for inspection and audit of such books, records, and other documentation. Contractor shall also ensure that adequate records are kept by the entities referred to in A(1) above (parent(s), subsidiary(s), and affiliate(s)) to identify and track the Success Fee events described therein and that such records may be made available through the Contractor for review.

D. Contact

The following person shall be the point of contact for all reporting and payment matters under this Success Fee and Cost Share Agreement:

[Name Title Name of Firm-Full Official Name Address Telephone No.

Fax No.

E-Mail address]

If, for any reason, it becomes necessary for the Contractor to change the point of contact specified above, the Contractor shall promptly notify USTDA and provide USTDA with updated contact information.

E. Collection

In the event that Contractor fails to make Success Fee and/or Cost Share refunds to USTDA that are properly due and owing under this Success Fee and Cost Share Agreement, USTDA may refer the matter to appropriate collection services, including the U.S. Department of the Treasury or other Government departments or agencies.

F. Effectiveness

This Success Fee and Cost Share Agreement will become effective upon:

(1) Signature of the Grant Agreement;

(2) Signature of the Contract; and

(3) Written approval by USTDA of the Contract.

G. Successors and Assigns

This Success Fee and Cost Share Agreement shall be binding upon the Contractor and its successors and assigns, provided, however, that this Success Fee and Cost Share Agreement shall not be assigned or assumed without the prior written approval of USTDA.

[The Balance of this Page is Intentionally Left Blank]

If you are in agreement with the foregoing, please so indicate by signing below and returning one signed original to me. We look forward to supporting your efforts to perform this Study in furtherance of the objectives of the USTDA program.

Accepted and Agreed: Sincerely, ________[U.S. Firm-Full Official Name]

By:_____________________

Director

Date: _______________ Date:_______________

Annex I

UNITED STATES TRADE AND DEVELOPMENT AGENCY

SUCCESS FEE PROGRAM – SUCCESS FEE REPORT

PROJECT INFORMATION:

Country:_____________________________ Activity No.:____________________________ Project Name:_________________________________________________________________

U.S. FIRM CONTACT INFORMATION:

Name of U.S. Firm:____________________________________ Current Contact Person (and Title) for Success Fee Program:______________________________ Phone:___________________ Fax:_____________________ E-mail:__________________________ Address:___________________________________________________________________________

U.S. FIRM’S HOST COUNTRY (CLIENT) CONTACT INFORMATION:

Name of Host Country Client:____________________________________________ Current Contact Person (and Title):____________________________________________ Phone:___________________ Fax:_____________________ E-mail:__________________________ Address:___________________________________________________________________________ SUCCESS FEE REPORTING: (Please provide this information on separate sheets.)

A. Formula Specify Success Fee Criteria as stated in your Success Fee Agreement with USTDA.

B. Measurement

(1) Describe success of this Project or any related project for U.S. Firm based upon the above formula as of the date of this report.

(2) Describe success of this Project or any related project based upon the above formula applicable to all parent(s), subsidiary(s), and affiliate(s) of U.S. Firm as of the date of this report.

(3) Provide a detailed narrative description, applicable statistics or financial reports, and the period or term of their measurement.

C. Calculation and Refund of Success Fee Due

(1) Calculate the Success Fee due to USTDA with this report based upon the above measurement.

(2) If Success Fee is due, please attach refund check, payable to the United States Trade and Development Agency.

(3) If no Success Fee is currently due to USTDA, please attach a detailed explanation.

D. Projections for Next Year’s Success Estimate the likely success of this Project and any related project that will be achieved in the next 12 months.

CERTIFICATION:

I hereby certify that I am a duly authorized representative of _____________ (U.S. Firm) and that all information contained in this Success Fee Report is accurate, complete, and in compliance with the terms of the Success Fee Agreement between ____________(U.S. Firm) and the United States Trade and Development Agency.

By (signature):________________________ Date:_______________________ Typed Name and Title_____________________________________________________

(Format date: 01/22/16)

Annex II

Budget Estimate

Annex III Certified Statement of Expenditures

“As detailed below, Contractor and/or its subcontractors has covered at least US$____ [Cost Share amount] of costs to complete the full Terms of Reference as set forth in Annex I to the Grant Agreement and the Contract between the Grantee and Contractor.”

By:___________________________ Date:___________ Financial Officer of ____ [Contractor – Full Official Name]

DIRECT LABOR COSTS:

TOR Task TOR Task Name Primary Contractor (Employee) Labor Total Person Days x Daily Rate* = TOTAL COST I Task ________ (Position A) ________ ________ _____________ (Position B) ________ ________ _____________

TOTALS: ________ ________ _____________

TOR Task TOR Task Name Non-Employee Labor Total Person Days x Daily Rate ** = TOTAL COST I Task ________ (Position A) ________ ________ _____________ (Position B) ________ ________ _____________

TOTALS: ________ ________ _____________

TOTAL DIRECT LABOR COSTS: _____________

OTHER DIRECT COSTS:

Purchased Services/Contracts*** Tasks TOTAL COST

Travel Trips Trip Cost TOTAL COST International Air Travel _________ _________ _____________ In-Country Air Travel _________ _________ _____________ Ground Transportation _________ _________ _____________

Trip Days Per Diem Rate TOTAL COST Per Diem _________ _________ _____________ Other (local travel, etc.) _________ _________ _____________ Interpreters _________ _________ _____________

Other TOTAL COST Reproduction and Binding _____________ Courier Services _____________ Visa Services _____________ Communication _____________

TOTAL OTHER DIRECT COSTS: _____________

TOTAL COSTS (DIRECT LABOR COSTS + OTHER DIRECT COSTS): _____________

TOTAL U.S. COMPANY COST SHARE: _____________

USTDA GRANT: ____________

* Primary Contractor (Employee) Labor Costs = Salary + Overhead + Benefits (no fee or profit).

** Non-Employee Labor Cost = Salary + Overhead + Benefits + Reasonable Fee or Profit.

*** Purchased Services/ Contracts may include engineering drawings, lab work, surveys, translation, etc., which would not be included in Non-Employee Labor Cost above.

Note: Pursuant to Article B(3)(a), the Contractor must submit an accompanying written explanation of any substantial change between the Budget Estimate and the Certified Statement of Expenditures. “Substantial change” means any variation of 30% in any line item such as direct labor costs per task, international air travel, or per diem.

1000 Wilson Boulevard • Suite 1600 • Arlington, VA 22209-3901 Telephone 703–875–4357 • Fax 703–875–4009

Web: www.ustda.gov

U.S. TRADE AND DEVELOPMENT AGENCY

MODEL CONTRACT FOR USTDA-FUNDED FEASIBILITY STUDY

This is a model contract (“Model Contract”) designed to facilitate the drafting of a contract (“Contract”) between the Grantee and the U. S. Contractor with respect to the performance of a USTDA-funded feasibility study (“Study”). It is important to note that USTDA is not a party to the Contract. All Contracts for USTDA-funded studies must contain the following:

1) USTDA Mandatory Contract Clauses, which are set forth as Annex II to the Grant Agreement that funds this Study;

2) Terms of Reference for this Study, which is set forth in Annex I to the Grant Agreement (The Contract’s Terms of Reference must be identical to the Grant Agreement’s or the Client and the Contractor must provide a separate written explanation to USTDA for approval at the time of Contract review);

3) A list of personnel, who will be utilized to perform the Study, and curricula vitae for all such personnel listed;

4) Payment provisions that conform with the requirements set forth in Clause G of the USTDA Mandatory Contract Clauses (Clauses 3 and 4 of this Model Contract may be used as an example); and

5) In the event that the Contract is executed in two languages, a Contract provision which states that English must be the controlling language.

The information in italics is intended to provide guidance and should not be included in the text of the final Contract.

Either the Contractor or the Grantee may submit a copy of the signed Contract or a final, negotiated draft version to USTDA for review and approval. The parties are encouraged to submit a final, negotiated, and unsigned draft version of the Contract to USTDA for review and approval. USTDA's approval may be contingent upon certain modifications being made to the Contract if USTDA determines such modifications are required to ensure that the text of the Contract is consistent with the terms and objectives of the Grant Agreement and USTDA policy.

(2)

USTDA Grant funds will not be disbursed until USTDA (i) receives a signed copy of the Contract, containing any required USTDA modifications, and (ii) issues the parties a written approval letter.

Appendix B Template Secondary Agreement

(1)

CONTRACT FOR [STUDY TITLE]

This contract (“Contract”) is made and entered into by and between_____________ (hereinafter referred to as the “Client”) and ___________, a United States firm incorporated in __________with its principal offices located at_________in the State of _________ (hereinafter referred to as the “Contractor”) (referred to herein individually as a “Party” and collectively, the “Parties”) .

WHEREAS, the Client has requested the Contractor to prepare a feasibility study on the project (the “Study”), and the Contractor has agreed to prepare the Study in accordance with the terms and conditions set forth in this Contract;

NOW, THEREFORE, in consideration of the mutual terms and conditions set forth in this Contract, the Parties hereto agree as follows:

1. Appointment

The Contractor shall perform the Study in accordance with the terms and conditions set forth in this Contract and the following annexes which are hereby incorporated by reference into this Contract. [Additional annexes, such as those set forth in Annexes IV and V below, may be added in appropriate cases]

Annex I: Terms of Reference [must be identical to the Terms of Reference in the Grant Agreement or the Client and the Contractor must provide a separate written explanation to USTDA for approval as soon as possible and no later than at the time of Contract review]

Annex II: USTDA Mandatory Contract Clauses Annex III: List of Personnel and Curricula Vitae [Annex IV Schedule of Events] [Annex V: Counterpart Client Personnel, Assigned Specialists, Equipment, and Facilities to be Provided by the Client]

2. Effective Date of the Contract

This Contract shall be effective upon signature by both Parties. The Parties acknowledge that the estimated completion date for the Study is set forth in Clause K of the USTDA Mandatory Contract Clauses.

[The Contract's effective date should not precede the effective date of the Grant Agreement. Contracts, and any amendments, including assignments and changes to the Terms of Reference, must be agreed to in writing by USTDA in order to be effective with respect to the expenditure of USTDA Grant funds.]

(2)

3. Payment Schedule

The U.S. Trade and Development Agency (“USTDA”) has made a Grant of [spell out amount] United States Dollars (US$_____) available to the Client for the Study (“Grant Funds”) pursuant to the Grant Agreement between USTDA and the Client, dated (“Grant Agreement”). In consideration for the Contractor's performance of the Study, the Client shall arrange for the Grant Funds to be disbursed by USTDA directly to the Contractor as follows:

(a) US$______, a mobilization payment, upon signature of the Contract and approval by USTDA [not to exceed 20% of the total Grant Funds].

(b) US$______upon completion of________. [milestone]

(c) US$______upon completion of________. [milestone]

(d) US$______[this amount should not be less than 15% of the total USTDA Grant Funds] upon receipt and approval by USTDA of the Final Report in accordance with the specifications and quantities set forth in the USTDA Mandatory Contract Clauses. [If the Contractor is making a Cost Share contribution to this study, add the following additional sentence.] In addition, a financial officer of the Contractor must provide the Cost Share certification contained in the USTDA Mandatory Contract Clauses.

[The above payment schedule should be based upon completion of performance milestones rather than automatic chronological installments. These milestones should be based upon completion of tasks set out in the Annex I Terms of Reference. ]

4. Method of Payment

In accordance with the payment schedule set forth in Clause 3 above, the Contractor shall submit invoices containing the certification set forth in Clause G of the USTDA Mandatory Contract Clauses to the Client for approval. The Client shall approve, in accordance with the disbursement procedures in Clause G of the USTDA Mandatory Contract Clauses, or disapprove each invoice within __ [15] days of its receipt. If the Contractor does not receive a response regarding the invoice from the Client within __ [30] days of its receipt, the Contractor shall notify USTDA. If the Client disapproves an invoice, the Client shall so inform the Contractor in writing, setting out the reasons for disapproval in order to enable the Contractor to take appropriate corrective measures. If the Client does not approve or disapprove of an invoice within __ [15] days after such corrective measures have been made, the Contractor shall notify USTDA. After the Client approves an invoice and the invoice is received by USTDA, USTDA shall make its respective disbursement of the Grant Funds directly to the Contractor in the United States.

(3)

5. Supply of Personnel

The Study shall be carried out by the personnel specified in Annex III for the respective periods of time covered by this Contract. A curriculum vitae for each person listed shall be attached to this Annex. The Contractor hereby agrees that the personnel listed in Annex III will be utilized to perform the Study.

6. Procedures for Substitution of Personnel

Except as the Client may otherwise agree, no changes shall be made in the personnel specified in Annex III. If, for any reason beyond the reasonable control of the Contractor, it becomes necessary to replace any person specified in Annex III, the Contractor shall provide a replacement of equivalent or superior qualifications. The Contractor must give USTDA advance written notice of any changes made to the personnel specified in Annex III and must provide USTDA with a curriculum vitae for each proposed replacement. Any additional costs incurred by reason of such replacement shall be at the expense of the Contractor. In the event, if any person specified in Annex III is found by the Client to be unsuitable or incompetent in discharging his or her assigned responsibilities, the Client may request the Contractor to provide a replacement within a reasonable period of time. Any additional costs incurred by reason of such replacement shall be at the expense of the Contractor.

7. Permits and Approvals

The Client shall facilitate the timely granting to the Contractor, its authorized subcontractors, and affiliates, and, where applicable, their dependents, of visas, licenses, permits, and customs clearance for entry and exit, and the privilege of bringing into the host country reasonable amounts of foreign currency for the purpose of carrying out the Contract.

8. Force Majeure

If either of the Parties to this Contract is prevented from performing any of its obligations under the Contract by events of Force Majeure, such as war, fire, flood, earthquake, or any other event beyond the reasonable control of such Party, the time period for performance of such obligations shall be extended by a period equal to the delay caused by such event, and the Parties hereto shall conduct friendly negotiations as soon as possible to find a mutually satisfactory solution to the problems caused by such events.

[Please note that any extensions, changes, modifications, etc. resulting from Force Majeure would be subject to written USTDA approval as set forth in the USTDA Mandatory Contract Clauses.]

(4)

9. Suspension and Termination of the Contract

(a) Suspension of the Contract

If any of the following events shall have happened and be continuing, either Party may, by written notice to the other Party and USTDA, suspend in whole or in part this Contract:

(i) USTDA shall have suspended disbursements from the Grant Agreement covering this Contract; or

(ii) A default shall have occurred in the performance of any obligation of the other Party under this Contract.

(b) Termination of the Contract

Consistent with Clause H of the USTDA Mandatory Contract Clauses, if any of the following events shall have happened and be continuing, either Party may, by written notice to the other Party, terminate the Contract:

(i) Any of the conditions referred to in paragraph (a) above shall continue for a period of thirty (30) days after the Party shall have given written notice to the other Party of the suspension of the Contract; or

(ii) The Grant Agreement between USTDA and the Client shall have been terminated.

In any event, either Party may terminate the Contract at any time by giving not less than sixty (60) days written notice to the other Party and USTDA.

(c) Termination Procedures

Upon termination of the Contract, the Contractor shall take immediate steps to terminate the performance of the Study in a prompt and orderly manner and to reduce losses and to keep further expenditures to a minimum.

10. Business Practices

The Parties recognize the existence of standards of conduct for public officials and commercial entities in their respective countries. Therefore, the Parties shall fully comply with all United States and host country laws relating to corruption or bribery. For example, the Contractor and its subcontractors shall fully comply with the requirements of the U.S. Foreign Corrupt Practices Act, as amended (15 U.S.C. §§ 78dd-1 et seq.).

Each Party agrees that it shall require that any agent or representative hired to represent it in connection with the Study will comply with this paragraph and all laws which apply to

(5) activities and obligations of that Party, including, but not limited to, those laws and obligations referenced above.

11. Standards of Conduct

The Contractor shall exercise all reasonable skill, care, and diligence in the performance of the Study under this Contract and shall carry out its responsibilities in accordance with recognized professional standards. The Contractor and its employees, agents, and subcontractors, if any, shall respect and abide by all applicable laws and regulations of the host country.

12. Liability

The Contractor and any subcontractor shall be liable to the Client for performance of the Study in accordance with the provisions of this Contract and for any loss suffered by the Client as a result of a default of the Contractor in such performance, subject to the following limitations:

(a) the Contractor shall not be liable for any damage or injury caused by or arising out of the act, neglect, default or omission of any persons other than the Contractor, its Subcontractors or the personnel of either of them; and

(b) the Contractor shall not be liable for any loss or damage caused by or arising out of circumstances over which the Contractor had no control.

13. Amendment Procedures

All changes, modifications, and amendments to this Contract, including its annexes, shall be made only by written agreement by the Parties hereto, subject to written USTDA approval.

14. Dispute Resolution

(a) All disputes between the Parties hereto arising in connection with this Contract shall be settled if possible through friendly negotiations between the Parties hereto. In case no settlement can be reached within ninety (90) days after a dispute arises, either Party may request that the dispute be submitted for arbitration.

(b) The arbitration shall take place in and be conducted by ________[arbitration organization] in accordance with the procedural rules of [arbitral rules, e.g., UNCITRAL]. The arbitration shall be conducted in the _______________language, and ________[state and/or country] substantive law shall be applied. The decision of the arbitrators shall be final and binding upon both Parties.

(6)

(c) The Parties shall give USTDA advance written notice of any such arbitration proceedings.

(d) Pursuant to Clause R of the USTDA Mandatory Contract Clauses, the provisions in this paragraph do not affect the rights or obligations of USTDA.

15. Succession

This Contract is binding upon the Parties' successors.

16. Addresses of Record

Any notice, request, document, or other communication submitted by either Party to the other Party under this Contract shall be in writing or through a wire or electronic medium which produces a tangible record of the transmission, such as an email or facsimile, and will be deemed duly given or sent when delivered to such Party as set forth below: [The Client and Contractor should provide contact information for the persons responsible for the day-to-day management of the Contract.]

(a) For the Client:

Name:

Title:

Address:

Phone:

Fax:

E-Mail:

(b) For the Contractor:

Name:

Title:

Address:

Phone:

Fax:

E-Mail:

All such communications between the Parties shall be in the language.

Any communications between either of the Parties and USTDA shall be in the English language.

[The Contract and all subcontracts, invoices, final reports, and other documents directed to USTDA must be in English]

17. Language

(7)

This Contract has been executed in the English language, which shall be the binding and controlling language for all matters relating to the meaning or interpretation of this Contract.

18. Entire Agreement

This Contract, including its annexes, contains all covenants, stipulations and provisions agreed by the Parties hereto. No agent or representative of either Party has authority to make, and the Parties shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth herein.

19. Counterparts

This Contract may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.

Counterparts may be delivered via electronic mail or other transmission method and any counterpart so delivered shall be deemed to be valid and effective for all purposes.

IN WITNESS WHEREOF, the Parties hereto, each acting through its duly authorized representative, have caused this Contract to be signed.

For [CLIENT] For [CONTRACTOR]

By:_____________ By:______________ [name and title] [name and title]

Date:___________ Date:_____________

Annex I -- Terms of Reference

Annex II -- USTDA Mandatory Contract Clauses [This Annex must contain the actual text from the corresponding USTDA Grant Agreement, normally found in Annex II thereto]

Annex III – List of Personnel and Curricula Vitae

[Please remember to attach all annexes]

(10/28/13 version)

Appendix C and D Annex I Terms of Reference for India

Technical Assistance Annex II USTDA Mandatory Clauses

India Technical Assistance

Terms of Reference

Please refer lo Annex I of the signed Grant Agreement between t!te US. Trade & Development Agency "US'JLJA "and Airporls Authori~)' of India (AA!) dated Sep/em her 30, 2013 ( The Annex I has been copied and pasted below £IS isfi'om the Grant Agreement)

PROJECT OVERVIEW AND OBJECTIVES

Project Introduction

The AilJ)Ort Geographic Information System (AGIS) Project (Project) will allow the Grantee to deploy a single integrated system to manage the collection and delivery of airpo1t and aeronautical survey data.

As such, the Contractor shall develop a prototype of AGIS that will serve as "proof of concept" in three phases:

1. Survey of aeronautical data for Calicut Airport (a medium size airport) conducted in coordination with the Grantee's survey team a:nd based on the Federal Aviation Administration's (FAA's) advisory circulars (ACs);

2. Verification and validation of the survey data collected via upload to the prototype AGIS; and

3. Presentation of operational and functional capabilities to Grantee officials.

Upon satisfactory completion of the Project, the Grantee will have a proof of concept and understanding of AGIS to be able to further develop and customize an AGIS system in India.

Overview of Project Scope

•• One medium sized airport, Calicut Airport, will be surveyed and the survey data will be used to demonstrate the capabilities of the Grantee AGIS prototype, show a proof of concept, and show the advantages of further developing and customizing the AGIS. Aerial photographs will not be acquired or used.

o Off-the-shelf commercial imagery will be utilized .

., The Contractor shall be guided by data provided in the FAA ACs during the course of the Project. All the ACs that govern the FAA's survey program are located on FAA public websites.

" Following development, online access to the Grantee AGIS prototype will be provided to Grantee personnel for storing and viewing survey dala.

The Grantee has identified the Calicut Airport as a medium-size, two-runway airport where the aeronautical survey will be conducted prior to Project kick-off.

AnnexI-1

Gi·antee Responsibilities e Provide a Co-Lead and two additional dedicated team members, preferably witl1 a survey and AGIS background, which will be responsible for in-country coordination.

This team will receive on-the-job training (OJT) that will cover the prototype AGIS and ACs, and will work closely with the development team to reviev,; early software builds and test them for usability.

0 Provide all historical data pertaining to this airport including maps, drawings, obstacle infonnation and Aeronautical Infonnation Publication (AIP) data.

Q Provide access to the selected Calicut airpo11 throughout the survey process.

& Provide contact information or research assistance to enable the Contractor to acquire appropriate Geodetic control information to support the Project .

., Provide a meeting room for the final presentation - Task 7.

SCOPE OF WORK

Task l - Project Kick Off and Needs Assessment

The Contractor shall:

1.1 Conduct a one-day kickoff meeting at the Grantee's offices in Delhi to discuss key Project objectives and goals, Project milestones and points of Grantee contact.

l .2 Conduct interviews with key rantee taffto determine the system's short and long term needs and goal . The Co1)tractor shall work with Grantee staff to identify critical features needed in the prototype and prioritize system capabilities. This infonnation will guide subsequent stages of development and implementation. The Contractor shall use the information obtained during the interviews to guide the development of the AGIS prototype and to support the Cost Benefit Analysis task.

1.3 Based on 1.1 and 1.2, the Contractor shall prepare a Needs Assessment that outlines the Grantee's AGIS system priorities, needs, key capabilities, and short and long term goals. This Needs Assessment shall include an analysis of: (1) current and specific aeronautical data collection requirements and the various processes cuffently used by the Grantee for data collection: (2) the Grantee's current softwareihardware data management capabilities; and (3) future and current procurement of NextGen systems such as Global Positioning Systems, geo-augmented navigation (GAGAN), and Ground Based Augmentation System (GBAS) and their implementation for which data collected by AGIS can be used.

1.4 Evaluate the Calicut airp011 to determine if any special requirements or local restrictions exist. These possible restrictions include, but are not limited to, security c1eanmces any environmental iss11es that impact the surveyor work and safety training required to acce s (he airfield,.

1.5 Complete a preliminary analysis of the how the system will be applied to the Calicut airport and address any concerns raised by the Grantee regarding the needs

Annex 1-2 assessment or the special requirements identified under Item 1.3. The Contractor shall use the Needs Assessment to determine the key characteristics of the AGlS prototype, subject to the system's limitations.

Deliverable #1: The Contractor shall prepare a report containing the Neeus Ass~ssment and findings from the interviews, Task 1.4, and Task 1.5. The Contractor shall provide five (5) hard copies and one electronic copy shall be provided to the Grantee.

Task 2 - Implementation Plan

The Contractor shall:

2.1 Utilize the Needs Assessment from Task 1 to develop an Implementation Plan. The Implementation Plan will address required hard and software platforms, software frameworks, and database systems. The Contractor shall also identify available open-source software packages that may increase the adoption and lower the long tem1 maintenance and development costs of the AGIS. The Conh·actor shall identify potential U.S. suppliers for items listed under the Implementation Plan, including systems that may operate using the AGIS data, e.g. air traffic flow management systems (ATFM), Total Airspace and Airport .Management systems (T AAM), etc.

The Contractors.hall develop a list of suppliers containing contact information for each supplier and associated estimated costs.

2.2 Identify and evaluate the suitability of available commercial imagery from U.S.

suppliers that will eliminate the need for custom imagery acquisition while still providing much of the same functionality. The Contractor shall develop a list of suppliers containing contact information for each and associated estimated costs.

2.3 Collect and evaluate existing data provided by the Grantee for the Calicut airport and analyze its accuracy and compliance with requirements for the system development.

The data will be used to determine the requirements of the limited survey and reduce the scope of such survey.

2.4 Conduct a one-clay meeting with the Grantee to discuss the Implementation Plan and identify any additional concerns or previously unidentified issues. The Contractor shall also use the meeting to request and gather any additional data needed for the Calicut airpo1t. The discussion will be documented to serve as fmther guidance throughout the development of the AGIS prototype.

2.5 Revise the Implementation Plan if necessary to address any Grantee concerns and/or feedback.

Deliverable #2: The Contractor shall prepare a report containing the final Implementation Plan and list of aerial imagery suppliers.

Annex I-3

Task 3 - Conccp1-ual Development and AirpOlt Survey

Tbe Contractor shall:

3.1 Initiate the conceptual development of the Grantee's AG IS p,roto1ype b ased on th e Needs Assessment.. lmplementalion Plan and the meetings conducted during Tasks I and 2.

3.2 Review and evaluate existing graphic and 11on-graplric data associated with the selected airport in order 10 support population of the AC-150/5300-18 (AC-18) feature e l:lsses and attributes. This existing data wi ll be migrated to the AG.TS data model and utilized for 1hc pilot.

3.3 Perform a selective suivey of tbe selected ai1port based on the foUowing specificatious:

o AC I 50/5300- I 6A whfoh provides the guidance and specifications for the establislunent of geodetic control.

o AC 150/5300-178 which provides the guidance and specifications for lhe collec tion of aerial imagery will be when appHcable, I hough uo new imagery is expected to be collected.

o AC 150/5300-J 8B which provides tbe guidance and specifica tions for survey requirements and acctu·acies.

o TCAO standards, RTCA D0-272, which specifies the international standards for mapping airports.

The sw·vey process is depktecl in lhc flow cha11 below:

Annex I-4

Deliverable# 3: The contractor shall prepare a report containing an overview of the sunrey results including review and evaluation of the existing and the collected airport data.

Task 4 - Final Design and Quality Assurance

The Contractor shall:

4.1 Upload the airport survey data to the Grantee AGIS prototype system.

4.2 Perform quality assurnnce tests on the survey data uploaded to the AGIS prototype to check and correct any inacc,uracies in accordance with the FAA specifications.

The compiled and entered survey data will be evaluated by the Contractor for accuracy and quality to ensure it contains no errors.

4.3 Identify and compile the results of the quality assurance tests in a report that outlines the findings, including lessons learned, and any potential improvements that cou1d be made to the AGIS system ..

Ueliverable #3: The Contractor shall prepare a report with the results of the ailport snrvey and the results of the quality assurance tests.

Annexl-5

Task 5 - Preliminary Environmental and Developmental Impacts

The Contractor shall:

5. I onduct a ge11eral review of en ironmental benefits and potential negative impacts of the ProjecL based on thee isling studies and data available in the public domain.

The Con.Lractor shall in il · analysis consider potential impacts regarding the AGIS implementation on the airports' operation in support of planning and procedure design) This includes the impact of improved approach procedures and an increase in direct flights on fuel usage and noise pollution.) and other impacts that the Contractor may deem relevant.

5.2 Prepare a report on the potential development impacts for the Project in the Host Country. While specific focus should be paid to the immediate impact(s) of the Project, the Contractor will include, where appropriate, any additional developmental benefits of the Project, including spin-off and demonstration effects.

The Contractor's analysis of potential benefits shall be as concrete and detailed as possible. The development impact factors are intended to provide the Project's decision-makers and other interested parties with a broader view of the Projects' potential effects on the Host Country. The Contractor shall provide estimates of the Project's potential benefits in the following areas:

., Infrastmcture and Industry. The Contractor shall provide a statement on the infrastructure impact giving a brief synopsis, including the size and scope of ne\.v facilities such as extension of runways, taxiways and aprons; addition of terminal areas; cargo facilities; etc.

• Markel-Oriented Refom1s. The Contractor shall provide a description of any regulations, laws, or institutional changes that are recommended and the effect they would have if implemented.

• Human Capacity Building. The Contractor shall address the number and type of positions that would be needed to implement, manage, and operate the AGIS system. Of relevance to this assessment is the number of people who will receive training and the nature and type of such training.

• Technology Transfer and Productivity Enhancement. The Contractor shall provide a description of any advanced technologies that will be implemented as a result of the Project. The Contractor shall provide a quantitative description of any efficiencies that will be gained as part of the Project, such as reduction of infonnation redundancy, decreased smveying needs/costs, and level of information accessibility.

• Other: The Contractor shall identity any other developmental benefits of the Project, including any spin-off or demonstration effects.

J)eliverable #4: The Contractor shall prepare a Preliminary Environmental and Developmental Impact report.

Annex I-6

Task 6 - Cost-Benefit Analysis

The Contractor shaJI develop a cost benefits analysis of AGIS, outlining Lht: fulure expected development and maintenance costs and forecasting the benefits that can be expected. This analysis shall compare/contrast the existing way in which the Grantee manages, stores and distributes info1111ation with the manner in which information would be handle using the AGIS.

Deliverable #5: The Contractor shall prepare a report containing the results of the environmental, developmental and cost-benefit analyses.

Task 7 - System Demonstration

The Contractor shall:

7.1 Provide a detailed two-day briefing to the Grantee staff in Delhi on the AGIS prototype, including the results of the AGIS survey of the designated airport. The meeting shall be attended by the Grantee AGIS Group (up to 8 people). The ACP Program Director, Co-Chairs and USTDA representatives will also be invited.

7.2 Utilizing the collected and formatted survey data files for the Calicut airport, provide a demonstration of the Grantee AGIS prototype. During the demonstration, the Contractor shall work with the Grantee to test and evaluate the system for performance and functionality.

7 .3 Provide a presentation on "next steps" requfr d for full AGI development and deployment in India. The presentation should provide information on fuh1re system development requirements, data collectim1 need. and an action plan for deployment.

Deliverable #6: The Contractor shall provide the AGIS Prototype, including a final AGJS compliant data file for the selected airport. The Contractor shall also provide handouts dming the presentation.

Task 8 - Final Report

The Contractor shall prepare and deliver to the Grantee and USTDA a substantive and comprehensive Project Report of all work perfolmed under these Tenns of Reference ("Final Project Report") in English. The Project Report shall be organized according lo the above tasks, and shall include all deliverables and documents that have been provided to the Grantee. The Project Report shall also include an Executive Summary. The Project Report shall be prepared in accordance with Clause I of Annex II of the Grant Agreement.

Annex 1-7

Annex lI Please refer to Annex JI qrthe signed Grant Agreement between the U.S. Trade & Development Agency "USTDA "a11d Airpor"r A.uthori~J' of India (AA!) dated September 30. 2013(The Annex JI has been copied and pasted be!01,· as is.fi-om rhe Gmnt agreemenT)

USTDA Mandatory Contract Clauses

A. USTDA Mandatory Clauses Controlling

The patties to this ontract acknowledge rhnt this Contract is fonded in whole or in part by the U.S. Trade an.d D vetopment Ag~cy ("USTDA") under the Grant Agreement between the Government of the United States of America acting through USTDA and Airports Authority of India ("Client"), dated ("Grant Agreement"). The Client has selected Hi-Tee Systems, Inc. ("Contractor") to perform the feasibility TA ('TA") for the Airport Geographic Information System project ("Project") in India ("Host Country"). The ' lient and the Contractor are the parties Lo this Contract, and they hereioafter are referred to coUectively as the 'Contract Parties." Notwithstanding ai1y other pr vj ions of this ConlTact the following USTDA Mandatory Contract Clauses shall govern. 11 subcontracts entered into by Contractor funded or partially funded with U TDA Grant funds shall include these USTDA Mandatory Contract Clauses, except for clau es B( l ), G, H, a11d I. In addition, in the event of any inconsistency between the Grant Agreement· and the Contract or any subcontract thereunder, the Grant Agreement shall be co,11trolJfog.

B. USTDA as Financier

(1) USTDA Approva1 of Contract

TI1is Contract, and any amendment thereto, including any amendment to any annex thereto, and any proposed assignment of this Contract, must be approved by USTDA in writing in order to be effective with respect to the expenditure of USTDA Grant funds .