24-036 RFP Shared Micro Mobility Addendum 1~1.pdf

24-036 RFP Shared Micro Mobility Addendum 1 Page 1 of

SALEM AREA MASS TRANSIT DISTRICT

REQUEST FOR PROPOSALS RFP 24-036

SHARED MICROMOBILITY

ADDENDUM #1

Salem Area Mass Transit District is providing information as an Addendum to RFP 24-036.

The following changes, clarifications and SAMTD responses to questions posed to date are hereby provided to all proposers:

1. RFP Part 3 – Submission Guidelines Part 3.A Procurement Schedule

SAMTD originally committed to responding to proposer questions later than 5:00 PM on September 26. While reviewing all questions with legal counsel, SAMTD did not meet this deadline.

To allow proposers to fully consider this Addenda and the full scope of work, SAMTD is extending the RFP Submission Due date to Thursday, October 10, 2024 No later than 5:00

PM PST.

2. Appendix A – General Terms and Conditions Section GC.4 “Indemnification”, Paragraph 1

Proposer has requested the following amendments to the first paragraph (as displayed in red)

To the fullest extent permitted by law, Contractor agrees to fully indemnify and , hold harmless, and defend SAMTD, its directors, officers, and employees from and against all claims, demands, losses, suits, damages, reasonable attorney fees, and costs of every kind and description and expenses incidental to the investigation and defense thereof, to the e xtent resulting from, any act, omission, fault or negligence of Contractor, its agents, contractors, sub-contractors, or employees in the performance or nonperformance of Contractor’s obligations under this Contract. Should any incident be due to the joint and or concurrent negligence of the Contractor and SAMTD, all costs items identified above will be borne by the Contractor and SAMTD in proportion to their respective negligence.

Response: After review and discussion with legal counsel, SAMTD will not approve these changes. The paragraph will remain as originally written and displayed below in italics.

SAMTD is also reviewing an update to indemnity language to meet the January 1 effectivity date of Oregon State SB1575.

To the fullest extent permitted by law, Contractor agrees to fully indemnify and, hold harmless, and defend SAMTD, its directors, officers, and employees from and against all claims, demands, losses, suits, damages, reasonable attorney fees, and costs of every kind and description and expenses incidental to the investigation and defense thereof, to the extent resulting from, any act, omission, fault or negligence

24-036 RFP Shared Micro Mobility Addendum 1 Page 2 of of Contractor, its agents, contractors, sub-contractors, or employees in the performance or nonperformance of Contractor’s obligations under this Contract. Should any incident be due to the joint

3. Appendix A – General Terms and Conditions Section GC.8 “Work Product”

Proposer has requested the following amendments to the section (as displayed in red)

As Federally Funded project, all work product of Contractor that results from this Agreement (the “Work Product”) is the exclusive property of SAMTD. Work Product shall include but not be limited to all data, information in any form, documents, research, analysis and other any work subject to intellectual property laws and doctrines. Owne rship sha ll not e xte nd to Contrac tor's unde rlying me ans and me thods use d to c rea te work product. Additiona lly, any pree xis ting inte lle c tua l prope rty conta ine d within Contrac tor's de live rable s the re to be longing to Contrac tor sha ll remain the prope rty of Contrac tor unle ss othe rwise indicate d in the scope of s e rvice s . SAMTD and Contractor intend that such Work Product be deemed “work for hire” of which SAMTD shall be deemed the author.

If for any reason the Work Product is not deemed “work for hire ,” Contractor hereby irrevocably assigns to SAMTD all of its right, title , and interest in and to any and all of the Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Contractor shall execute such further documents and instruments as SAMTD may reasonably request in order to fully document such vested rights in SAMTD. Contractor forever waives any and all rights re lating to the Work Product, including without limitation, any and all rights arising under 17 USC Section 106A or any other rights of identification or authorship or rights of approval, restriction or limitation on use or subsequent modifications. Should the SAMTD re use or modify Contrac tor's docume nts without prior conse nt, the SAMTD sha ll inde mnify and hold the Contrac tor harmle s s from and aga ins t any c la im, procee ding, cause of ac tion, damage , cos t or e xpense tha t d ire c tly re sults from any devia tion from or change s to the Contrac tor's Ins trume nts of Se rvice .

Response: After review and discussion with legal counsel, SAMTD will approve the highlighted language only. The updated term will read as follows:

As Federally Funded project, all work product of Contractor that results from this Agreement (the “Work Product”) is the exclusive property of SAMTD. Work Product shall include but not be limited to all data, information in any form, documents, research, analysis and other any work subject to intellectual property laws and doctrines. Ownership shall not extend to Contractor's underlying means and methods used to create work product. Additionally, any preexisting intellectual property contained within Contractor's deliverables thereto belonging to Contractor shall remain the property of Contractor unless otherwise indicated in the scope of services. SAMTD and Contractor intend that such Work Product be deemed “work for hire” of which SAMTD shall be deemed the author. If for any reason the Work Product is not deemed “work for hire ,” Contractor hereby irrevocably assigns to SAMTD all of its right, title , and interest in and to any and all of the Work Product, whether arising from copyright, patent, trademark, trade secret, or any other state or federal intellectual property law or doctrine. Contractor shall execute such further documents and instruments as SAMTD may reasonably request in order to fully document such vested rights in SAMTD. Contractor forever waives any and all rights re lating to the Work Product, including without limitation, any and all rights arising under 17 USC Section 106A or any other rights of identification or authorship or rights of approval, restriction or limitation on use or subsequent modifications.

4. Question from Proposer: Are there any critical dates that our proposed schedule needs to tie into

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Response: After review of the project SAMD could not identify any additional critical dates that need to be considered while developing a timeline.

5. Appendix A – General Terms and Conditions Section GC.1 “Contractor's Status and General Responsibilities”

As written, Section GC.1 of SAMTD’s Appendix A subjects Contractor to an elevated standard of care and uninsurable claims. As a design professional, Contractor’s actions are measured by a common law standard of care defined as, “what a like professional would do under similar circumstances”. This standard of care is directly tied to Contractor’s professional liability insurance coverage. Would SAMTD be amenable to modifying this language as follows upon any contract award to mitigate issues in this regard:

Contractor is an independent Contractor for all purposes and is entitled to no compensation from SAMTD other than that provided by this Contract. Contractor shall inform SAMTD of Contractor's Federal Internal Revenue Service Employer Identification Number or, if Contractor is an individual with no employer identification number, Contractor's Social Security Number. The Contractor and its officers, employees, and agents are not in any way officers, employees or agents of SAMTD as those terms are used in ORS 30.265. The Contractor, its employees or officers shall not hold themselves out either explicitly or implicitly as officers, employees or agents of SAMTD for any purpose whatsoever, nor are they authorized to do so.

Contractor shall provide and pay for all labor, materials, equipment, utilities, and other goods or services necessary for full contract performance unless this Contract specifically provides otherwise. Contractor shall supervise and direct contract performance with the care and skill used by members of its profession practicing under similar circumstances at the same time in in the same locale (the “Standard of Care”) using its best skill, and shall be responsible for selecting the means of contract performance. If, during or after the term of this Contract, Contractor learns of any actual or potential defect in the services provided under this Contract, of any problem associated with the results of contract performance, or of any nonconformance with a provision of this Contract or of Federal, state, or local law, Contractor shall inform SAMTD immediately in writing with a full description of the defect, problem, or nonconformance.

Contractor is an independent Contractor for all purposes and is entitled to no compensation from SAMTD other than that provided by this Contract. Contractor shall inform SAMTD of Contractor's Federal Internal Revenue Service Employer Identification Number or, if Contractor is an individual with no employer identification number, Contractor's Social Security Number. The Contractor and its officers, employees, and agents are not in any way officers, employees or agents of SAMTD as those terms are used in ORS 30.265. The Contractor, its employees or officers shall not hold themselves out either explicitly or implicitly as officers, employees or agents of SAMTD for any purpose whatsoever, nor are they authorized to do so.

Contractor shall provide and pay for all labor, materials, equipment, utilities, and other goods or services necessary for full contract performance unless this Contract specifically provides otherwise. Contractor shall supervise and direct contract performance using its best skill, and shall be responsible for selecting the means of contract performance. If, during or after the term of this Contract, Contractor learns of any actual or potential defect in the services provided under this Contract, of any problem associated with the results of contract performance, or of any nonconformance with a provision of this Contract or of Federal, state, or local law, Contractor shall inform SAMTD immediately in writing with a full description of the defect, problem, or nonconformance.

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6. Appendix A – General Terms and Conditions Section GC.15 “Inspection of Goods and Services”

Also subjects the Contractor to an elevated standard of care. In keeping with requested revisions to Section GC.1, would SAMTD be amenable to the following modifications to Section GC.15 of Appendix A upon any contract award:

A. SAMTD has the right to reasonably inspect and test all goods/services called for under the Contract, to the extent practicable, at all times and places during the term of the Contract. SAMTD shall perform inspections and tests in a manner that will not unduly delay the work.

B. If any of the goods or services do not conform with contract requirements and the Standard of Care as defined in GC.1 of the Contract, SAMTD may require the Contractor to replace the goods or perform the services again in conformity with contract requirements and the Standard of Care, at no increase in contract amount. When the defects in goods or services cannot be corrected by re-performance, SAMTD may (1) require the Contractor to take necessary action to ensure that future performance conforms to contract requirements and the Standard of Care and (2) reduce the contract price to reflect the reduced value of the goods/services performed.

C. If the Contractor fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with contract requirements and the Standard of Care, SAMTD may (1) by contract or otherwise, perform the services and charge to the Contractor any cost incurred by SAMTD or (2) terminate the Contract for default.

A. SAMTD has the right to inspect and test all goods/services called for under the Contract, to the extent practicable, at all times and places during the term of the Contract. SAMTD shall perform inspections and tests in a manner that will not unduly delay the work.

B. If any of the goods or services do not conform with contract requirements, SAMTD may require the Contractor to replace the goods or perform the services again in conformity with contract requirements, at no increase in contract amount. When the defects in goods or services cannot be corrected by re-performance, SAMTD may (1) require the Contractor to take necessary action to ensure that future performance conforms to contract requirements and (2) reduce the contract price to reflect the reduced value of the goods/services performed.

C. If the Contractor fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with contract requirements, SAMTD may (1) by contract or otherwise, perform the services and charge to the Contractor any cost incurred by SAMTD or (2) terminate the Contract for default.

7. Appendix A – General Terms and Conditions Section GC.4 “Indemnification”

The indemnification language in Section GC.4 of SAMTD’s Appendix A is overly broad. Additionally, the recently passed SB 1575 becomes effective January 1, 2025, and will render any contractual upfront duty to defend obligations by design professionals unenforceable. See link to adopted legislation:

SB1575 (oregonlegislature.gov) What steps is SAMTD taking to ensure its indemnification provision is revised to reflect this new legislation as of January 1, 2025?

The submission of a Proposal constitutes Proposers acceptance of the terms and conditions stated in

24-036 RFP Shared Micro Mobility Addendum 1 Page 5 of the RFP, including the underlying contract terms and conditions. To avoid any conflict in the future relative to legislative changes to the State’s anti-indemnification statute, please advise how Proposers should navigate such acceptance. Proposer would prefer the indemnification language be revised as follows:

A. To the fullest extent permitted by law, Contractor agrees to fully indemnify, and hold harmless, and defend SAMTD, its directors, officers, and employees from and against all claims, demands, losses, suits, damages, attorney fees, and costs of every kind and description and expenses incidental to the investigation and defense thereof, resulting from, any negligent or other tortious act, omission, fault or negligence of Contractor, its agents, contractors, sub-contractors, or employees in the performance or nonperformance of Contractor’s obligations under this Contract.

Should any incident be due to the joint and or concurrent negligence of the Contractor and SAMTD, all costs items identified above will be borne by the Contractor and SAMTD in proportion to their respective negligence.

Response: Response: After review and discussion with legal counsel, SAMTD will not approve these changes. The paragraph will remain as originally written and displayed below in italics. SAMTD is also reviewing an update to indemnity language to meet the January 1 effectivity date of Oregon State SB1575.

To the fullest extent permitted by law, Contractor agrees to fully indemnify and, hold harmless, and defend SAMTD, its directors, officers, and employees from and against all claims, demands, losses, suits, damages, reasonable attorney fees, and costs of every kind and description and expenses incidental to the investigation and defense thereof, to the extent resulting from, any act, omission, fault or negligence of Contractor, its agents, contractors, sub-contractors, or employees in the performance or nonperformance of Contractor’s obligations under this Contract. Should any incident be due to the joint

All other specifications and terms and conditions remain unchanged.

By: Charleen McCurdy Procurement & Contracts Analyst Salem Area Mass Transit District 555 Court Street NE, Suite 5230 Salem, Oregon 97301 September 30, 2024