125DO003_Form_of_the_Contract_-_On-Vehicle_Advertising.pdf

RFP 125DO003

On-Vehicle Advertising

Regional Transportation District

Contracting and Procurement

1660 Blake St.

Denver, CO 80202

Regional Transportation District

I. CONTRACT AWARD

II. STATEMENT OF CONTRACT REVENUE

III. SCOPE OF WORK

IV. GENERAL TERMS AND CONDITIONS

V. CRIMINAL BACKGROUND CHECKS AND ACCESS BADGES

VI. NON-DISCLOSURE

VII. SUPPLIES CONTRACTS

VIII. CONTRACTORS KEY PERSONNEL

IX. INSURANCE & BOND REQUIREMENTS

X. SPECIAL PROVISIONS/ALTERATIONS SPECIAL TERMS

XI. COMPLETED CERTIFICATIONS

1. CONTRACT AWARD

FORM OF THE CONTRACT

RTD Contract Number RFP 125DO003

ISSUED BY

Regional Transportation District

1660 Blake St., Denver, Colorado 80202 - 1399

Notices to: Amelia Thompson, Contract Administrator

CONTRACTOR

TBD

TBD

Notices to: TBD, Contract Representative

Invoices: Submit invoices as stated in the Section entitled, "Statement of Contract Cost,"

Invoicing.

Products/Services: On-Vehicle Advertising

Contract Cost: TBD

Type: Fixed Price

Effective Date: The Effective Date of this Contract is December 1, 2025, or the last date of execution by RTD of the Signature Page, whichever is later.

Period of Performance: Subject to the Termination provision of the Contract, performance shall commence as of the Effective Date (or in the event that RTD provides a Notice to Proceed to the Contractor, the Period of Performance shall commence on the date of the Notice to

Proceed) and shall continue for five (5) years (subject to the exercise of any option periods).

This Contract consists of: (1) Contract Award and Signature Page(s); (2) Statement of Contract

Cost; (3) Scope of Work (provided in Solicitation); (4) Terms and Conditions; (5) Contract-

Specific Documents and Requirements; and (6) Attachments. These Contract Documents constitute the entire Contract between the parties.

2. STATEMENT OF CONTRACT REVENUE

2.1. Term

Subject to the Termination provision of the Contract, performance shall commence as of the

Effective Date and shall continue for five (5) years (subject to the exercise of any option periods)("Period of Performance").

The first year of the Period of Performance will commence as of the Effective Date and end

December 31, 2026. All other Contract years will be based on the 12-month calendar year starting January 1.

All Advertising Contracts sold by Contractor to Advertising Customers must have a start of

December 1, 2025 or after.

2.2. Options and Pricing

RTD shall have the unilateral right to exercise the options negotiated with the Contractor to purchase additional Work called for by the Contract or to extend the term of the Contract. This

Contract has the potential for two (2) 1-year options to extend the Period of Performance. RTD and the Contractor have negotiated options prices in accordance with the following:

[Option year 1: $TBD]

[Option year 2: $TBD]

2.3. Compensation

A. Definitions. Unless otherwise defined in the Contract, capitalized terms in the Contract have the following meanings:

1. Advertising Contract means a contract between Contractor and an Advertising

Customer for Commercial Advertising on a Designated Vehicle.

2. Advertising Customer means an entity that has entered into an Advertising

Contract with Contractor.

3. Commercial Advertising means paid advertising to generate revenue for the construction, operations and maintenance of the RTD’s facilities and services.

4. Minimum Annual Guarantee (MAG) means the minimum amount paid by

Contractor to RTD for each year of the Contract term, regardless of actual advertising revenue.

5. Net Revenue means the net annual amount billed by Contractor for Commercial

Advertising for each True-Up Period, as calculated in accordance with Section 2.3(C) below.

6. RTD Advertising Space means the space on the interior and exterior of

Designated Vehicles designated by RTD for Advertising as more fully described in the below Statement of Work.

7. RTD Messaging means (i) information provided to the public by or about RTD, including information about RTD transit services, programs, or products, such co-sponsorships with commercial or governmental third parties that are intended by

RTD to increase ridership or otherwise support RTD's mission, (ii) advertising related to the Corporate Partnership Program, and (iii) RTD's Media Trades, cooperative advertising, and other trade options

8. [IF THE MAG IS TO BE PAID ON AN UPFRONT, ANNUAL BASIS, USE THE

FOLLOWING:] True-Up Period means each of the following periods:

9. [IF THE MAG IS TO BE PAID ON A MONTHLY BASIS, USE THE

FOLLOWING:] True-Up Period means each of the following periods:

B. Consideration. In exchange for Contractor’s right to collect certain revenue for

Commercial Advertising, Contractor will compensate RTD an amount equal to the applicable MAG or [____]% of the Net Revenue, whichever is greater, for each True-Up

Period.

C. Minimum Annual Guarantee (MAG). Contractor will pay RTD a Minimum Annual

Guarantee (MAG) for each year of the Contract as set forth below.

1. [IF THE MAG IS TO BE PAID ON AN UPFRONT, ANNUAL BASIS, USE THE

FOLLOWING:] Contractor will pay RTD the following MAG amounts by the first

(1st) day of each Contract year as follows:

2.

3. [IF THE MAG IS TO BE PAID ON A MONTHLY BASIS, USE THE

FOLLOWING:] For each year of the Contract term, Contractor will pay the following

MAG amounts in equal installments by the first (1st) day of each month of the

Contract year:

4.

D. Net Revenue. The Net Revenue is calculated on the gross amount billed by Contractor for Commercial Advertising for each True-Up Period. Contractor may not deduct overhead amounts, leases, equipment charges, or any fees or deductions other than as follows:

1. Commissions. Contractor may pay a single reasonable agency commission to a bona fide advertising agency involved in the sale of advertising space. Bona fide shall mean a firm that is not affiliated in any way (e.g. by ownership, control, common officers or directors) with the Contractor. Commissions paid shall in no case exceed fifteen percent (15%) of the amount billed for the sale. Contractor must provide RTD with documentation of fees paid to the Contractor.

2. Discounts. Contractor may negotiate discounted fair market value rates, not to exceed fifty percent (50%), to facilitate sales. Any discounts exceeding fifty percent

(50%) shall require prior written approval from RTD’s Project Manager. All discounts will be fully disclosed on Advertising Contracts provided to RTD in the regular monthly reporting.

3. Bonuses. Bonuses are complimentary time/space provided to an Advertising

Customer to facilitate sales. Contractor may negotiate bonus advertising time and/or space, not to exceed fifty percent (50%) of the fair market value of an Advertising

Contract, solely for the purpose of facilitate sales of Commercial Advertising. Any bonuses exceeding fifty percent (50%) shall require prior written approval from

RTD’s Project Manager. All bonuses will be fully disclosed on Advertising Contracts provided to RTD in the regular monthly reporting.

E. Revenue True-Up. At the end of each True-Up Period, RTD will calculate the agreed-upon percentage of Net Revenue to determine if it exceeds the portions of the Minimum

Annual Guarantee paid for that True-Up Period. If the Net Revenue exceeds the portions of the Minimum Annual Guarantee, RTD will invoice Contractor for the difference.

Payment for the difference to RTD must be made within thirty (30) days of Contractor’s receipt of RTD’s invoice. If the payment is not made to RTD within thirty (30) days, Contractor shall be in default of the Contract. If the Net Revenue does not exceed the portions of the Minimum Annual Guarantee paid for the applicable True-Up Period, RTD will retain the paid portions of the Minimum Annual Guarantee in its entirety. The

Minimum Revenue Guarantee amounts paid are not refundable to Contractor.

F. Payment Procedure. Contractor’s payments to RTD under this Contract must be remitted to RTD 9652, PO Box 209652, Dallas TX 75320-9652. The following documentation must be submitted with each payment, 1) Copy of RTD invoice and 2) RTD invoice number on memo line of check.

2.4. Required Reports

A. Contractor shall provide RTD with verified monthly reports that detail and track revenue billed by Contractor for Commercial Advertising. Such reports will be in a form agreed upon by RTD and Contractor, but must clearly detail and itemize any commissions, discounts or bonuses in the reports as well as in Contractor’s Advertising Contracts.

Contractor must furnish all correspondence including pricing, changes in pricing, length of contract, and cancellations for its Advertising Contracts within one month of execution, when requested by RTD on a case-by-case basis.

1. Monthly Billing / Invoicing Journal. The Contractor shall invoice its Advertising

Customers for payments monthly and a Billing / Invoicing Journal Report of all invoices and any Advertising Contracts finalized for that month to RTD by the 15th day of the following month. The Contractor shall send to RTD a monthly summary of activity showing at a minimum for each sale: the contract number, Advertising

Customer name, type and number of signage sold, name, if any, commission, discount or bonus amount and the monthly net revenue amount (see sample

Monthly Billing / Invoicing Journal attached to the Contract as Exhibit H).

2. Monthly Inventory Report. In addition, Contractor shall send to RTD a Monthly

Inventory (see sample Advertising Inventory Report attached to the Contract as

Exhibit I) showing the Advertising Space sold by location [vehicle number or digital display inventory]. This Monthly Inventory shall include RTD Advertising Space used for RTD Messaging.

3. By the 15th of the month for the previous month, Contractor will provide to RTD a monthly report detailing revenue received by Contractor (see sample Advertising

Revenue Report attached to the Contract as Exhibit J). The summary will include the invoice number, contract number, amount received, date received, and the payee’s check number.

2.5. Prompt Payment

A. Contractor agrees that:

1. It shall pay its subcontractor(s) any undisputed amounts for the satisfactory performance of their Work within seven days of Contractor’s receipt of payment from

RTD for such Work;

2. Within 30 days after a subcontractor’s Work has been satisfactorily completed and accepted by RTD’s Project Manager or by Contractor, whichever is earlier, Contractor shall make full payment to subcontractor of any retainage Contractor has kept related to such subcontractor’s work, unless a claim is filed against the subcontractor related to such work;

B. Failure to comply with the above may give RTD just cause to impose one or more of the following penalties, until the required payment(s) to Contractor’s subcontractor(s) is satisfied, unless RTD has given prior written approval to Contractor for the delay or postponement of payment(s):

1. withhold payments to Contractor;

2. assess sanctions against Contractor;

3. assess the subcontractor’s indirect or consequential damages against Contractor;

4. disqualify Contractor from future bidding on RTD contracts as nonresponsible;

5. enforce the payment bond against Contractor;

6. pay the subcontractor(s) directly and deduct this amount from any retainage owed to Contractor;

7. provide notice of default to Contractor, stating the potential for termination or suspension of the Contract, in whole or in part;

8. issue a stop-work order until the subcontractor(s) is paid, which order shall constitute an unauthorized delay under the Contract that could result in liquidated damages against Contractor.

C. Unless approved by RTD, Contractor’s failure to comply with this Section is a material breach of the Contract; and

D. It shall ensure that tiered subcontractors comply with this Section and that they insert provisions (a) and (b) of this Section into all lower-tiered subcontractor agreements.

2.6. Revenue Detail

Please refer to the Attachments.

3. SCOPE OF WORK

Please refer to the Attachments.

4. GENERAL TERMS AND CONDITIONS

4.1. DEFINITIONS

Unless otherwise defined in this Contract, capitalized terms shall have the meanings ascribed to them. The following definitions shall apply throughout the Contract:

Contract. This agreement, specifically consisting of the documents described in “Documents

Forming the Contract” and any amendments to the Contract.

Contractor. The individual, firm, company, corporation, partnership, or association entering into this Contract with RTD. The Contractor shall be identified on the Contract Award and

Signature Page(s). Wherever used in this Contract, the term “Contractor” shall also refer to the

Contractor’s employees, agents, subcontractors, and any designated representative, whose authority to act on the Contractor’s behalf shall be delegated in writing.

RTD. The Regional Transportation District, a political subdivision of the State of Colorado.

Whenever used in this Contract, the terms "Regional Transportation District" or "RTD" shall include RTD’s General Manager, subject to limitations of authority established by RTD’s Board of

Directors, and, if so designated, the Contract Administrator or Project Manager.

Work. The work and services to be performed by the Contractor for RTD’s benefit pursuant to this Contract as detailed in the Scope of Work and other Contract Documents, including all administrative, deliverables, design, documentation, engineering, equipment, installation, labor, legal, management, manufacturing, materials, supervision, testing, verification, and any other duties and services, professional or otherwise, to be furnished and provided by the Contractor as required by the Contract, including all efforts necessary or appropriate to achieve final acceptance of the Work contemplated by the Contract.

4.2. DOCUMENTS FORMING THE CONTRACT

This Contract consists of the following documents and any amendments (collectively, “Contract

Documents”), as applicable:

• Contract Award and Signature Page(s);

• Statement of Contract Cost;

• Scope of Work/Technical Specifications;

• Terms and Conditions, including:

o the General Terms and Conditions, o Terms and Conditions that supplement the General Terms and Conditions

(“Supplemental Terms and Conditions”), if any, o Special Provisions/Alterations prescribed herein to the Terms and Conditions

(“Special Provisions/Alterations”), if any, and o Federally Required Terms and Conditions, if applicable; and

• Contract-Specific Documents and Requirements (“Contract-Specific Documents”), including:

o Insurance and Bond Requirements, o Key Personnel Document, o Completed Certifications, and o DBE/SBE Contract Requirements, if applicable; and

• Attachments.

4.3. CONTRACT ORDER OF PRECEDENCE

In the event of inconsistency among any provisions of this Contract, the inconsistency shall be resolved by giving precedence in the following descending order, as applicable:

1. Amendments to the Contract, if any;

2. Special Provisions/Alterations, if any;

3. Federally Required Terms and Conditions, if applicable;

4. Contract-Specific Documents;

5. Contract Award and Signature Page(s);

6. Supplemental Terms and Conditions, if any;

7. General Terms and Conditions;

8. Statement of Contract Cost;

9. Scope of Work/Technical Specifications; and

10. Attachments (other than the Scope of Work/Technical Specifications).

Unless expressly agreed by RTD in the form of a Special Provision/Alteration prescribed herein or Contract amendment, any agreement, license, provision, or other document not listed above but made a part of this Contract shall be deemed an Attachment for purposes of determining

Contract order of precedence.

4.4. RTD CONTRACT ADMINISTRATION

A. General Manager. RTD’s General Manager shall be identified by name on the Contract

Award and Signature Page(s). The General Manager shall have the sole authority, subject to monetary limitations established by the Board of Directors, to enter into, amend or terminate this Contract, and these duties may not be delegated except by written instrument authorized by the General Manager or RTD’s Board of Directors.

B. Letter of Delegation. RTD’s General Manager may designate person(s) to act in his or her behalf in the general administration of this Contract. The General Manager’s delegation of duties must be made in writing (“Letter of Delegation”) with a copy delivered to the Contractor. Any General Manager Letter of Delegation shall include the extent of delegation of authority and any limitations on such authority. The General

Manager may issue one or more Letters of Delegation and may at any time issue a new

Letter of Delegation replacing the person(s) previously named.

C. Contract Administrator. The General Manager may designate a Contract

Administrator, who shall be identified in a Letter of Delegation and on the Contract

Award and Signature Page(s), to assist in the general administration of this Contract.

Any such Letter of Delegation shall describe the extent of the Contract Administrator’s duties, but, unless further express delegation from the General Manager is provided, the

Contract Administrator does not have the authority to enter into, amend or terminate this Contract. In the Contract Documents and solicitation, the Contract Administrator may also be referred to as the Contracting Officer, Purchasing Agent, Buyer, or the like.

D. Project Manager. The General Manager may designate a Project Manager, who shall be identified in a Letter of Delegation, to administer the Work for RTD. Any such Letter of Delegation shall describe the extent of the Project Manager’s duties, but, unless further express delegation from the General Manager is provided, the Project Manager does not have the authority to enter into, amend or terminate this Contract.

4.5. EFFECTIVE DATE, PERIOD OF PERFORMANCE

A. Effective Date. The Effective Date of this Contract is specified on the Contract Award and Signature Page(s). The Contract shall be effective until Contract closing. This

Contract shall be considered closed after all Work has been accepted by RTD, RTD has received all necessary Closing Documents, and the Contractor has received final payment, provided however that certain terms and conditions shall, by their nature, survive closing of this Contract.

B. Period of Performance. Performance shall commence as of the date specified in a notice to proceed or, if there is no notice to proceed, the Effective Date. The Period of

Performance is specified on the Contract Award and Signature Page(s).

4.6. OPTIONS

RTD shall have the option to extend this Contract in accordance with the option terms, if any, negotiated on the Statement of Contract Cost. RTD shall give notice to the Contractor at least

60 days prior to the expiration of the Contract if RTD intends to exercise the next option. The

Contractor’s receipt of preliminary notice does not commit RTD to exercise an option to extend.

RTD may exercise the option provision more than once, but the total extension of performance under the Contract shall not exceed the total number of option terms negotiated. If RTD exercises the option to extend, the Contract shall be amended to include the option provisions.

4.7. CONSIDERATION

A. In consideration of the Contractor’s satisfactory performance of the Work in full compliance with the Contract, RTD shall pay the Contractor in accordance with the

Statement of Contract Cost.

B. RTD shall not pay the Contractor for any Work performed prior to the Period of

Performance.

C. RTD shall not be required to pay any amount in excess of the Contract Cost, unless the

Contractor has secured a written amendment to this Contract providing for such increase.

4.8. INVOICING AND PAYMENT

Invoicing and payment procedures are detailed in the Statement of Contract Cost.

4.9. CONTRACT CLOSING PROCEDURES AND FINAL PAYMENT

A. Contract Closing Procedures. Upon Contractor’s satisfactory performance of the

Work in full compliance with this Contract, or upon termination of this Contract, whether for convenience or default, RTD shall provide the Contractor with the following Closing

Documents: the Contractor’s Release and the Contractor’s Assignment of Refunds, Rebates, Credit and Other Awards.

B. Final Payment. Prior to final payment under the Contract, and as a condition precedent to final payment, the Contractor shall execute and deliver all Closing

Documents to RTD.

4.10. ACCESS TO RECORDS AND REPORTS

A. For a period of the longer of three years or such other time as required by another provision in this Contract following Contract closing, the Contractor shall maintain, preserve and make available to RTD and any of its authorized representatives access at all reasonable times to any books, documents, papers and records of Contractor which are directly pertinent to this Contract for the purposes of making audits, examinations, excerpts and transcriptions.

B. The Contractor shall maintain and RTD shall have the right to examine and audit all records and other evidence sufficient to reflect properly all prices, costs, or rates negotiated and invoiced in performance of this Contract. This right of examination shall include inspection at all reasonable times of the Contractor’s offices engaged in performing the Contract.

C. If this Contract is completely or partially terminated, the Contractor shall make available, for a period of the longer of three years or such other time as required by another provision in this Contract after any resulting final termination settlement, the records relating to the Work completed up to the date of termination. The Contractor shall make available records relating to appeals under the Disputes clause or to litigation or the settlement of claims arising under or relating to this Contract until such appeals, litigation, or claims are finally resolved.

D. The Contractor shall insert this Article in all subcontracts under this Contract and require subcontractor compliance with this Article.

4.11. PERFORMANCE OF WORK

A. Scope of Work. The Contractor shall provide RTD with the Work set forth in the Scope of

Work, as may be amended by change order or Contract amendment.

B. Notice to Proceed. The Contractor shall not commence performance of Work nor incur any costs for which Contractor intends to seek reimbursement until the date specified in a notice to proceed or, if there is no notice to proceed, the Effective Date.

C. Work Orders. If RTD specifies in writing that this Contract is a work-order contract, the

Contractor shall not perform any Work except pursuant to a valid, fully executed work order, which shall be in a form prescribed by RTD. Each such work order shall be subject to the terms and conditions of this Contract. Any work order issued must contain a detailed summary of the Work to be performed, the projected cost for such Work, cost breakdown, completion date, an agreed-upon delivery schedule, and any other relevant information. To be valid, a work order must be signed by RTD and the Contractor;

however, RTD and the Contractor shall not execute any work order if the cost authorized by the work order, when added to the cost of all previously executed work orders, will result in expenditures in excess of the total consideration set forth on the

Statement of Contract Cost, as may be amended by Contract amendment.

D. Costs Incurred by Contractor. The Contractor shall immediately notify RTD whenever it appears that costs necessary to perform the Work required will exceed the amount authorized by the Statement of Contract Cost. If the Work is performed pursuant to work order, the Contractor shall notify RTD whenever it appears that costs necessary to perform Work under any work order will exceed the amount authorized by the work order. The Contractor shall not incur any costs in excess of authorized amounts without written authorization from RTD. If RTD authorization is not forthcoming, the Contractor shall not be obligated to continue performance of the Work beyond the authorized amount. Nothing contained in this Contract shall allow the Contractor to exceed the total consideration set forth on the Statement of Contract Cost, as amended.

E. Time of Performance.

1. The Contractor shall complete the phases of Work in accordance with the agreed-upon Work schedule included in the Scope of Work or work orders, if any. The Work schedule shall include allowances for time required for RTD review and approval and for approvals of jurisdictional authorities. The Contractor shall not exceed the agreed-upon Work schedule, except for reasonable cause and immediate notice to

RTD of delay or potential delay.

2. If the Contractor exceeds the Work schedule or fails to timely submit required Work as set forth on the Work schedule, RTD shall have the right to withhold payment, assess reasonable damages caused by the late submittal, and/or terminate this

Contract in accordance its Termination provisions.

3. The Contractor shall immediately inform RTD of any delay in the Work that threatens to extend any deadline or timeframe set forth in the work orders or Work schedule.

F. Safety.

1. The Contractor shall be responsible for safety related to all aspects of the Work. The

Contractor shall obtain all health, fire, and other relevant safety regulations, work practices, and procedures prescribed by law and by RTD and shall ensure that the

Contractor’s employees and subcontractors’ employees are notified of, understand, and abide by them at all times. Unless otherwise agreed in this Contract, and at no cost to RTD, the Contractor shall provide all required personal protective equipment and other equipment required for the safe performance of the Work. If the

Contractor fails to remedy any breach of this paragraph or fails to comply with any safety directive of RTD immediately after receipt of written notice, RTD may enter the Work site and effect such measures as may be necessary to secure compliance, in addition to any other remedies provided to RTD by this Contract. RTD shall have the right to deduct from any payment due to the Contractor an amount sufficient to reimburse RTD for securing such compliance.

2. The Contractor shall promptly report all accidents, safety incidents, injuries, and environmental incidents to RTD and to government authorities as required by law.

3. At any reasonable time, RTD may inspect a Work site and appropriate records regarding the Contractor’s safety procedures and statistics to ascertain compliance with the safety requirements of this Contract. Neither the existence nor exercise of such right by RTD shall relieve the Contractor of its responsibility for compliance with, and for monitoring compliance by the Contractor and its subcontractors with, the safety requirements of this Contract.

4. The Contractor shall stop Work when an imminent hazard to persons, property, or the environment is identified and shall immediately notify RTD that Work has stopped, providing the reasons for stopping the Work and an estimate of when the

Work will resume. The Contractor shall take all appropriate measures to abate the imminent hazard and limit the duration of the stoppage of Work. The Contractor shall coordinate efforts with RTD to mitigate the effect of the stoppage of Work.

5. The Contractor shall ensure all of its employees and subcontractors’ employees understand their right to stop Work at any time they feel there is an unsafe condition or unsafe behavior in place that could harm them, others, property, or the environment. The Work shall not resume until all appropriate measures to abate the hazards have been implemented.

6. Notwithstanding any other provision of this Contract, RTD has the right to immediately suspend the performance of the Work if RTD, in its sole judgment, determines that any employee of the Contractor or subcontractors is failing to comply with RTD safety requirements or applicable safety laws and regulations while performing the Work, or if the safety of RTD employees or patrons is at risk or RTD operations are at risk. The suspension will continue until RTD notifies the Contractor that the suspension is lifted. The Contractor acknowledges that RTD has no obligation to lift the suspension until RTD is satisfied that the Contractor will comply with the Contract requirements. RTD shall not be liable for any delays in the completion of the Work that result from an RTD suspension under this paragraph.

4.12. CHANGE ORDERS AND CONTRACT AMENDMENTS

Change Orders. RTD may at any time, by written order, and without notice to sureties, if any, make changes within the general scope of this Contract to the description of Work to be performed; the time allowed for performance; or the place of performance.

Contract Amendments. Any change, including a change described in the preceding paragraph, that causes an increase or decrease in the cost to perform the Work; increases the time allowed for performance of any part of the Work under this Contract by greater than 30 days; or otherwise materially affects any terms or conditions of this Contract shall not be effective unless made by written instrument signed by RTD’s General Manager and the

Contractor.

4.13. QUALITY OF WORK

A. The Contractor shall perform the Work in accordance with all applicable federal, state and local laws, rules, regulations, and ordinances, as well as with the prevailing standard of practice normally exercised in the performance of work of a similar nature in

Colorado, and shall bear all costs of such compliance. The Contractor shall be responsible for the professional quality, technical accuracy, and the coordination of all

Work.

B. Neither RTD's review, approval, or acceptance of, nor payment for, the Work required under this Contract shall operate as a waiver of any rights under this Contract or of any cause of action arising out of the performance of this Contract, and the Contractor shall be and remain liable to RTD in accordance with applicable law for all damages to RTD caused by the Contractor's negligent performance of any of the Work furnished under this Contract.

C. If the Contractor is required to correct or re-perform defective or nonconforming Work, it shall be at no cost to RTD, and any Work corrected or re-performed by the Contractor shall be subject to this Article to the same extent as Work initially performed. If the

Contractor fails or refuses to correct or re-perform Work, RTD may, by contract or otherwise, have an alternative contractor correct or re-perform the defective or nonconforming Work, and RTD shall charge to the Contractor the cost occasioned to

RTD for the alternative contractor work or make an equitable adjustment in the Contract

Cost. If defective or nonconforming Work is not required by RTD to be corrected or re-performed, RTD shall nevertheless make an equitable adjustment in the Contract Cost.

4.14. WARRANTY

A. Contractor expressly warrants that all Work covered by this Contract shall conform to the Scope of Work upon which this Contract is based and shall conform to the prevailing standards of practice normally exercised in Colorado for the performance of work of a similar nature and under similar circumstances. Inspection, acceptance and use of the

Work shall not affect the Contractor’s obligation under these warranties, and such warranties shall survive inspection, acceptance and use. Any inspection, acceptance or payment for Work by RTD shall not constitute a waiver by RTD of any warranties. These warranties shall run to RTD, its successors, and assigns.

B. Contractor represents and warrants that it has sufficiently informed itself in all matters affecting the performance of the Work, the furnishing of the Work, or any others material items specified in the Scope of Work. All personnel assigned by the Contractor to perform the Work shall be capable, skilled, qualified and competent to perform such

Work. RTD may require Contractor to remove from the Work any employee, agent, or representative of Contractor that RTD deems incompetent, careless, or negligent.

C. Contractor further represents and warrants that the prices negotiated for this Contract are a complete and correct statement of Contractor’s prices for furnishing the Work and are not less favorable than those currently extended to any other customer for the same or like work in equal or smaller amounts.

D. The surety for the faithful performance bond, if any, required by this Contract is liable on its bond for all obligations of the Contractor, including warranty provisions.

4.15. PROFESSIONAL REQUIREMENTS

A. Certification, Registration, and Licensing. The Contractor and all persons performing

Work under this Contract on behalf of the Contractor shall be certified, registered or licensed as may be required by applicable state and federal laws governing the particular field of Work required or as may otherwise be required by the Contract.

B. Professional Associations. The Contractor may, with the prior written consent of RTD, join with it in the performance of this Contract any other duly licensed or registered contractors with whom it may in good faith enter into an association. In the event there is a dissolution of a professional association, other than by death of a member, RTD shall designate which former member shall continue with the Work and may make all payments thereafter due in connection with the Work directly to the person or persons so designated and without being required to look to the application of payments as among former members. In the event of the death of one member of an association, the surviving member or members of the association, as an association, shall succeed to the rights and obligations of the original association under the Contract.

C. Subcontractors and Consultants. If consulting services are to be performed by professionals in the Contractor’s employ, then such services must currently be and have been regularly a service of the Contractor’s organization. In the event the Contractor does not have certain professional consultants and consulting services as part of its regular staff and services, such consulting services shall be performed by practicing professional consultants. All professional consultants, staff or practicing, must be retained for the life of the project, provided however that acceptable replacements must be approved in writing by RTD. Prior to designating a professional to perform any consulting services, the Contractor shall submit the name of such professional, together with a résumé of his or her training and experience in work of like character and magnitude of the project being contemplated, to RTD and receive approval in writing from RTD.

4.16. KEY PERSONNEL AND CONTRACTOR REPRESENTATIVES

A. Key Personnel. The personnel listed in the Contractor’s response to this solicitation are considered to be essential to the Work. Prior to removing any key personnel from

Contract Work, the Contractor shall notify RTD within 14 days of such proposed removal and shall submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on the Contract. The Contractor shall not remove key personnel without the written consent of RTD by Contract amendment.

B. The Contractor Representative(s). The Contractor may designate one or more representatives to administer this Contract and to have overall direction and control over the Work to be performed by the Contractor. Any representative(s) so designated under this provision shall personally supervise and control the Work to be performed by the

Contractor. The Contractor shall notify RTD of the names and contact information of any designated Contractor representatives.

4.17. WORK OVERSIGHT BY RTD

A. RTD shall have the right to review at all reasonable times any Work. The extent and character of the Work shall be subject to the general oversight, supervision, direction, control, and approval of RTD.

B. Upon substantial completion of the Work, the Contractor shall submit the Work for

RTD’s review and RTD shall notify the Contractor of its acceptance or rejection. If approved, RTD shall provide to the Contractor written approval for any or all portions of the Work. RTD shall have the right to reject any Work that is not consistent and compatible with the Scope of Work. If RTD rejects any Work, RTD shall promptly notify the Contractor in writing of the grounds for rejection and offer suggestions for correcting the problem. RTD shall re-review and comment on the revised Work within a reasonable period of time.

C. Any approval, review, inspection, direction or instruction by RTD, or any party on behalf of RTD, in respect to the Work relates only to the results RTD desires to obtain and shall in no way affect the Contractor’s independent contractor status or obligation to perform in accordance with this Contract.

4.18. OWNERSHIP OF MATERIALS AND DOCUMENTS

A. RTD-Furnished Materials. RTD shall make available to the Contractor, to the extent permitted by law, all materials and information collected, compiled, or developed by RTD staff, consultants, planning organization, or municipalities necessary to perform under this Contract. All such material furnished to the Contractor shall be used by it only in connection with the performance of this Contract, and title to such material shall at all times remain in RTD. Upon termination or completion of this Contract, all such material shall be returned promptly to RTD.

B. Subject Data Created or Supplied by the Contractor or Consultants.

1. The term "Subject Data" used in this Article means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under the Contract.

“Subject Data” includes graphic or pictorial delineation in media such as drawings or photographs; text in specifications or related performance or design-type documents; machine forms such as punched cards, magnetic tape, or computer memory printouts; and information retained in computer memory. Examples include but are not limited to computer software, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information. “Subject Data” does not include financial reports, cost analyses, and similar information incidental to Contract administration.

2. All Work required under this Contract, including Work in electronic form, prepared by the Contractor and the Contractor’s consultants is Subject Data for use solely with respect to the Work. To the extent permitted by law, RTD shall be deemed the owner of all Subject Data created under this Contract. Furthermore, the Contractor assigns to RTD the entire right, title, and interest in and to copyrights in all Subject

Data and all works based upon, derived from, or incorporating the Subject Data; all copyright applications, registrations, extensions, or renewals relating to all Subject

Data and all works based upon, derived from, or incorporating the Subject Data; and all moral rights or similar rights with respect to the Subject Data throughout the world.

3. The Contractor retains the exclusive rights, title, and ownership to any and all pre-existing materials owned or licensed to the Contractor including, but not limited to, all pre-existing software, licensed products, associated source code, machine code, text images, audio and/or video, and third-party materials, delivered by the

Contractor under the Contract, whether incorporated in the Work or necessary to use the Work (collectively, “Contractor Property”). The Contractor Property shall be licensed to RTD as set forth in this Contract or an RTD-approved license agreement

(i) entered into as an exhibit or attachment to this Contract; (ii) obtained by RTD from the applicable third-party vendor; or (iii) in the case of open source software, the license terms set forth in the applicable open source license agreement.

4. If a court of competent jurisdiction finds the Contractor to be the owner of any

Subject Data created under this Contract, RTD shall automatically be granted a perpetual nonexclusive, royalty-free, and irrevocable license to reproduce and use, and permit others to reproduce and use solely for RTD’s internal use, all Subject

Data created under this Contract solely for the purposes of performing the Work or for future alterations or additions to the Work. The Contractor shall obtain similar nonexclusive licenses from the Contractor’s consultants consistent with this Contract.

RTD may assign and license its rights under this license. If and upon the date the

Contractor is adjudged in default of this Contract, the foregoing license shall be deemed terminated and replaced by a second, nonexclusive license permitting RTD to authorize other similarly credentialed professionals to reproduce and, where permitted by law, to make changes, corrections or additions to the Subject Data solely for purposes of completing, using and maintaining the Work or for future alterations or additions to the Work.

5. In addition, the Contractor grants to RTD (and to recipients of the Work distributed by or on behalf of RTD) a perpetual, worldwide, no-charge, royalty-free, irrevocable patent license to make, have made, use, distribute, sell, offer for sale, import, transfer, and otherwise utilize, operate, modify and propagate the contents of the

Work. Such license applies only to those patent claims licensable by the Contractor that are necessarily infringed by the Work alone, or by the combination of the Work with anything else used by RTD.

6. Whether or not the Contractor is under contract with RTD at the time, the Contractor shall execute applications, assignments, and other documents, and shall render all other reasonable assistance requested by RTD, to enable RTD to secure patents, copyrights, licenses and other intellectual property rights related to the Work. The

Parties intend the Work to be works made for hire. The Contractor assigns to RTD and its successors and assigns the entire right, title, and interest in and to all causes of action, either in law or in equity, for past, present, or future infringement of intellectual property rights related to the Work and all works based on, derived from, or incorporating the Work.

7. Any unilateral use by RTD of the Subject Data for completing, using, maintaining, adding to or altering the Work shall be at RTD’s sole risk and without liability to the

Contractor and the Contractor’s consultants, provided however that if RTD’s unilateral use occurs for completing, using or maintaining the Work as a result of the

Contractor’s breach of this Contract, nothing in this Article shall be deemed to relieve the Contractor of liability for its own acts or omissions or breach of this Contract.

C. Indemnification. The Contractor shall indemnify and save and hold harmless RTD, its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any violation by the Contractor of proprietary rights, copyrights, or rights of privacy arising out of the publication, translation, reproduction, delivery, performance, use, or disposition of any materials furnished by either party under this Contract.

4.19. INSURANCE AND BOND REQUIREMENTS

The Contractor shall maintain in full force and effect insurance in the amounts and coverages defined in the section entitled “Insurance and Bond Requirements” herein. The Contractor shall maintain any bonds required by applicable state or federal law regulating the particular field or profession. Bonds specifically required by RTD under this Contract are set forth herein.

4.20. HOLD HARMLESS

A. The Contractor shall defend, indemnify, and hold harmless RTD, its directors, managers, employees, agents and assigns from and against any and all claims, suits, demands, damages, liabilities, settlements, and court awards including costs, expenses, and reasonable attorneys’ fees, to the extent such claims are caused, in whole or in part, by any act or omission of, or breach of contract by, the Contractor, its employees, agents, subcontractors or assignees arising from, related to, in connection with, or in any way involving the performance of this Contract, but not to the extent such claims are caused solely by any act or omission of, or breach of contract by RTD, its directors, managers, employees, agents, or other contractors or assignees, or other parties not under the control of or responsible to the Contractor.

B. The Contractor shall give RTD immediate written notice of any suit or action filed or of any claim made against the Contractor, its employees, agents, subcontractors or assignees arising from, related to, in connection with or in any way involving the performance of this Contract. The Contractor shall immediately furnish to RTD copies of all pertinent papers received by the Contractor. If the amount of the liability claimed exceeds the amount of the Contractor’s insurance coverage against such claim, the

Contractor shall authorize and direct the Contractor’s counsel and the Contractor’s insurer(s), if any, to collaborate and cooperate with RTD representatives in settling or defending such claim.

C. The duties, obligations, rights, and remedies provided by the Contract shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law.

D. If the Contractor is comprised of more than one legal entity, each such entity shall be jointly and severally liable under the Contract.

E. Notwithstanding any other provision of this Contract to the contrary, no term or condition of this Contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions of the

Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended.

4.21. TERMINATION

A. For Convenience. RTD may, by giving at least 14 days’ written notice to the Contractor, terminate this Contract, or suspend performance under this Contract, in whole or in part and at any time for RTD’s convenience. The Contractor shall be compensated solely for

Work satisfactorily performed prior to the effective date and time of termination or suspension. The Contractor shall have no right to recover lost profits on the balance of the Work or any other measure of damages.

B. For Default. RTD may declare default in the Contractor’s performance of any term of this

Contract by giving seven days’ written notice to the Contractor specifying with particularity the basis for such default. The Contractor shall deliver a response in writing to RTD within five days of Contractor’s receipt of RTD’s default notice, setting forth a reasonable proposal to cure or to prevent repetition of the default. If the Contractor fails to timely respond to the notice of default, fails to cure the default, or if the default occurs again on any Work performed (or which should have been performed) during the remainder of the Contract term (including options), RTD shall have the right to terminate this Contract in whole or in part for default by written notice. RTD is not required to provide subsequent written notices of default for recurring instances of default already brought to the attention of the Contractor in a written notice. In the event of termination for default, the Contractor shall be compensated solely for Work satisfactorily performed prior to the effective date and time of termination. RTD may proceed with the Work by contract or otherwise, and the cost to RTD of completing the

Work shall be charged to the Contractor or deducted from any sum due the Contractor.

If after termination for default it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for RTD’s convenience.

C. Suspension of Work. RTD may suspend the Contractor’s performance of the Work by giving the Contractor seven days’ written notice. Upon Contractor’s receipt of notice of suspension of Work, the Contractor shall perform no further Work, and RTD will not be required to reimburse the Contractor for any costs incurred subsequent to Contractor’s receipt of notice of suspension and prior to RTD’s notice to resume Work, if any.

Suspension of Work may be in whole or in part, as specified by RTD. The Contractor shall continue to submit invoices for Work performed prior to Contractor’s receipt of notice of suspension of Work. If after six months of suspension RTD has not given the

Contractor notice to resume Work, the Contractor is entitled to request in writing that

RTD either (1) amend the Statement of Contract Cost or (2) terminate the Contract pursuant to the “For Convenience” provision of this Article. If suspension for more than six months is not due in any part to the fault of the Contractor, RTD shall be required to amend or terminate the Contract. No amendment to the Statement of Contract Cost shall be made under this Article if suspension, delay, or interruption of the Work is due to the fault or negligence of the Contractor, or for which an equitable adjustment is provided for or excluded under any other term or condition of this Contract.

4.22. EXCUSABLE DELAY

A. The Contractor shall not be in default by reason of any failure in performance of this

Contract in accordance with its terms (including any failure by the Contractor to make progress in the execution of the Work, which endangers such performance) if such failure arises out of unforeseeable causes beyond the control and without the fault or negligence of the Contractor, provided that the Contractor shall within five days of the start of any such failure, potential delay, or default notify RTD in writing of the causes of the failure, potential delay, or default and the related facts. Such causes may include, but are not restricted to, acts of God or of public enemy, acts of government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather.

B. If failure to perform is caused by the failure…