25-020 Appendix A General Terms and Conditions~1.pdf

Salem Area Mass Transit District (SAMTD) RFP 25-020 Project Management Software (FTA)

APPENDIX A

GENERAL TERMS AND CONDITIONS

SAMTD includes Appendix A (General Terms and Conditions) as part of the final agreement between the selected parties.

GC.1 Contractor's Status and General Responsibilities

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.

GC.2 Notices and Communications

All notices and other communications concerning this Contract shall be written in English and shall bear the contract number assigned by SAMTD. Notices and other communications may be delivered personally, by facsimile, by email, by regular, certified or registered mail or other commercial delivery service.

A notice to SAMTD will be effective only if it is delivered to that person designated in writing in either (a) the Notice of Award of this Contract, (b) the Notice to Proceed under this Contract, or

(c) to another individual specifically designated for this purpose by this Contract. A notice to the Contractor shall be effective if it is delivered to the individual who signed this Contract on behalf of Contractor at the address shown with that signature, to a corporate officer if Contractor is a corporation, to a general partner if Contractor is a partnership, or to another individual designated in writing by the Contractor in the contract or in a written notice to

SAMTD.

GC.3 Assignment and Subcontracting

Contractor shall not assign any of its rights or subcontract any of its responsibilities under this Contract without the prior written consent of SAMTD. Contractor shall include in each subcontract provisions necessary to make all of the provisions of this Contract fully effective and applicable to Contractor’s subcontractors. Contractor shall provide all necessary plans, specifications, and instructions to its suppliers and subcontractors to enable them to properly perform their work.

The Contractor shall perform at least EIGHTY percent (80%) of the work with their own organization. All subcontractors must be pre-approved by SAMTD before they begin work.

SAMTD reserves the right to investigate sub-contractor responsibility prior to confirming award, if subcontractors are known. SAMTD will not approve change orders to the bid or final contract price for replacing rejected sub-contractors.

Contractor shall be jointly and severally, and vicariously liable to SAMTD and responsible for the work of, including, but not limited to the adequacy, timeliness, efficiency, and sufficiency, its subcontractors. All subcontractors shall be jointly and severally liable to SAMTD and responsible for their work. SAMTD shall not be held responsible for the contractual relationship between subcontractors and Prime contractors. The Prime contractor shall maintain and monitor all subcontractor performance, payment, project delivery requirements, and relationships as they pertain to the Prime’s ability to successfully complete a project.

Failure of a contractor to properly manage subcontractors resulting in project delays shall be considered breach of contract and subject to the rights and remedies outlined in the contract terms and conditions.

GC.4 Indemnification

To the fullest extent permitted by law, Contractor agrees to fully indemnify, 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 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.

The obligations of Contractor under this Section 4 will not in any way be affected or limited by the absence in any case of insurance coverage or by the failure or refusal of any insurance carrier to perform any obligation on its part to be performed under insurance policies affecting this Contract. In no way shall the Contractor limit its liability under this Contract.

This indemnity shall survive the termination of this Contract or final payment hereunder. This indemnity is in addition to any other rights or remedies which SAMTD and the other parties to be indemnified may have under the law or under this Contract. In the event of any claim or demand made against any party which is entitled to be indemnified hereunder, SAMTD may in its sole discretion reserve, retain or apply any monies due to the Contractor under the Contract for the purpose of resolving such claims; provided, however, that SAMTD may release such funds if the Contractor provides SAMTD with adequate assurance of the protection of SAMTD’S interests. SAMTD shall be the sole judge of whether such assurances are adequate.

GC.5 Prompt Payment

Contractor shall make payment promptly, as due, to all persons supplying to the Contractor labor or material for the performance of the work provided for in the Contract; pay contributions or amounts due the Industrial Accident Fund from the Contractor or subcontractor incurred in the performance of the Contract; and pay to the Department of Revenue all sums withheld from employees under ORS 316.167. ORS 279B.220.

Contractor shall promptly, as due, make payment to any person, co-partnership, association or corporation furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury, to the employees of the Contractor, of all sums that the Contractor agrees to pay for the services and all moneys and sums that the Contractor collected or deducted from the wages of employees under any law, contract or agreement for the purpose of providing or paying for the services. ORS 279B.230

GC.6 Compliance with Laws and Regulations

Contractor shall adhere to all applicable federal, state, and local laws, regulations, executive orders and ordinances applicable to the work under this Contract. The Contractor shall comply with the clauses required in every public contract entered into in the State of Oregon as set forth in ORS 279B.220, 279B.225, 279B.230, 279B.235, 279C.505, 279C.510, 279C.515, 279C.520, and 279C.530, each of which is incorporated herein by reference.

All subject employers working under this Contract are either employers that will comply with ORS 656.017 or employers that are exempt under ORS 656.126.

GC.7 Liens Prohibited

Contractor shall not permit any lien or claim to be filed or prosecuted against SAMTD, its property or its right-of-way on account of any labor or material furnished or any other reason for work arising out of this Contract. If any lien shall be filed, Contractor shall satisfy and discharge or cause such lien to be satisfied and discharged immediately at Contractor’s sole expense.

GC.8 Safety

Notwithstanding any safety provisions elsewhere in this Contract, and in addition to Contractor’s own safety procedures, Contractor shall implement and enforce all safety requirements that are standard in the industry and/or that are required by SAMTD’S Safety Department.

GC.9 Prohibited Interests

No SAMTD Board member, officer, employee or agent who ceases to hold a position at SAMTD shall have any direct beneficial financial interest in this Contract, if they authorized this Contract while acting in their official position at SAMTD, for two years after the date the contract was authorized. This precludes working on this Contract as Contractor’s employee.

The term “authorize” in this provision means that the Board member, officer, employee or agent (“public official”) performed a significant role in the selection of the Contractor or the execution of this Contract, including recommending approval or signing of the Contract, serving on the selection committee or having the final authorizing authority for this Contract.

No SAMTD Board member, officer, employee, or agent (or any member of the immediate family or the partner of any of the aforementioned) shall solicit or accept, and Contractor (including any subcontractors) shall offer or give to any SAMTD Board member, officer, employee or agent (or any member of the immediate family or the partner of any of the aforementioned), any gratuities, favors, or anything of monetary value, in connection with the administration of this Contract, except to the extent permitted by applicable law and SAMTD policy.

GC.10 Integration, Modification, and Administrative Changes

This Contract includes the entire agreement of the parties and supersedes any prior discussions or agreements regarding the same subject. This Contract may be modified in writing by a modification that has been signed by individuals authorized to bind each of the parties contractually. SAMTD reserves the right to make administrative changes to the Contract unilaterally. An administrative change means a written contract change that does not affect the substantive rights of the parties.

GC.11 Severability/Survivability

If any of the provisions contained in this Agreement are held by a court of law or arbitrator to be illegal, invalid or unenforceable, the enforceability of the remaining provisions shall not be impaired, and the parties shall negotiate an equitable adjustment of this Contract so that the purposes of this Contract are not affected. All provisions concerning indemnity survive the termination or expiration of this Contract for any cause.

GC.12 Waiver and Non-waiver

A waiver by one party of a right to a remedy for breach of this Contract by the other party shall not be deemed to waive the right to a remedy for a subsequent breach by the other party.

SAMTD’S acceptance of goods or services, or payment under this Contract, shall not preclude SAMTD from recovering against Contractor or Contractor's surety for damages due to Contractor's failure to comply with this Contract.

Both parties having had the opportunity to consult an attorney regarding the provisions of this Contract, the parties agree to waive the principle of contract interpretation that an ambiguity will be construed against the party that drafted the ambiguous provision.

GC.13 Inspection of Goods and Services

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.

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.

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.

GC.14 Acceptance, Rejection, and Revocation of Acceptance

If this Contract is for the supply of goods, then SAMTD shall be deemed to have accepted goods only after the goods have been delivered by Contractor, and SAMTD has had a reasonable opportunity after delivery to inspect the goods. Prior to acceptance, SAMTD may reject any goods that fail to conform to the requirements of this Contract. SAMTD may revoke its acceptance of goods that fail to conform to this Contract if the failure to conform was not reasonably discoverable by ordinary pre-acceptance inspection or evaluation. Acceptance may be revoked under this Paragraph even if SAMTD has started using the goods before discovering that they do not conform to the Contract. Upon request by SAMTD, Contractor shall replace or repair to SAMTD’S satisfaction any goods that have been rejected by SAMTD or the acceptance of which has been revoked by SAMTD under this Paragraph. Failure to replace or repair those goods within a reasonable time after SAMTD’S request shall be a material breach of this Contract.

GC.15 Title and Risk of Loss

If this Contract is for the supply of goods, Contractor shall bear the risk of loss until the goods have been delivered to the site designated by SAMTD and an authorized SAMTD employee or agent has taken possession of them. Title to goods shall pass to SAMTD upon SAMTD’S payment for those goods. If this Contract is for the rental or lease of Contractor’s goods, the Contractor shall bear the risk of loss to Contractor’s goods. Contractor agrees to carry insurance to cover any such losses. Title to the Contractor’s goods shall remain with Contractor while goods are in SAMTD’S possession. If this Contract is for the repair or servicing of SAMTD owned goods, Contractor shall bear the risk of loss until the goods have been delivered to the site designated by SAMTD and an authorized SAMTD employee or agent has taken possession of them. Title to SAMTD owned goods shall remain with SAMTD while goods are in Contractor’s possession.

Contractor agrees to carry insurance to cover any losses/damages to SAMTD’S goods while in Contractor’s possession.

GC.16 Work Product

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. 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 relating 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.

GC.17 Mediation

In addition to the Disputes Clause outlined in Appendix C - Federal Terms and Conditions.

Should any dispute arise between the parties concerning this agreement that is not resolved by mutual agreement, it is agreed that it may by mutual agreement be submitted to mediated negotiation prior to any party commencing litigation. The mediator’s fees and costs shall be borne equally by the parties.

GC.18 Nondiscrimination

During the term of this Contract, Contractor shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, sexual orientation, disability, or national origin.

GC.19 Applicable Law and Jurisdiction

This Contract shall be governed by the State of Oregon law, without resort to any jurisdiction's conflicts of law principles, rules or doctrines. Any suit or action arising from this Contract shall be commenced and prosecuted in the courts of Marion County, Oregon or the U.S. District Court for the District of Oregon, in Salem, Oregon, as applicable. The parties agree to submit to the jurisdiction and venue of these courts.

GC.20 Paragraph Headings and Other Titles

The parties agree that paragraph headings and other titles used in this Contract are for convenience only, and are not to be used to interpret this Contract.

GC.21 Insurance

During the term of this Contract, Contractor shall purchase and maintain any insurance required by this Contract. Contractor shall furnish acceptable certificates of insurance and additional insured endorsements to SAMTD within ten (10) days after award of this Contract, and prior to commencement of any contract work.

Contractor shall be responsible for the payment of all premiums and deductibles and shall indemnify SAMTD for any liability or damages that SAMTD may incur for any reason arising from this contract including Contractor's failure to purchase or maintain any required insurance.

A. Minimum Scope and Limit of Insurance

Contractor shall maintain coverage at least as broad as the insurance types and amounts described below.

1) Commercial General Liability Insurance

Contractor shall provide Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to SAMTD. This insurance must include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under this Contract, and have no limitation of coverage to designated premises, project, or operation.

Coverage must be written using Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, with limits no less than $2,000,000 per occurrence and not less than $3,000,000 annual aggregate limit.

2) Business Auto Liability Insurance

Automobile bodily injury and property damage liability insurance, on ISO Form CA 00 01, covering all motor vehicles, whether owned, non-owned, leased, or hired, with a combined single limit of not less than $2,000,000. Use of personal automobile liability insurance coverage may be acceptable if evidence that the policy includes a business use endorsement is provided.

3) Workers’ Compensation & Employer’s Liability Insurance

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017, and provide Workers’ Compensation Insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2). Contractor shall require and ensure that each of its subcontractors complies with these requirements. If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall also obtain Employers' Liability Insurance coverage with limits not less than $500,000 each accident.

If Contractor is an employer subject to any other state’s Workers’ Compensation law, Contactor shall provide Workers’ Compensation Insurance coverage for its employees as required by applicable Workers’ Compensation laws including Employers’ Liability Insurance coverage with limits not less than $500,000 and shall require and ensure that each of its out-of-state subcontractors complies with these requirements.

Contractors who are non-subject workers meeting one of the exceptions in ORS 656.027 may not be required to carry workers compensation insurance. Any Contractor requesting an exemption from the workers compensation coverage listed above must make that request in writing, stating the Contractor’s qualification for exemption under ORS 656.027 and shall maintain “if any” workers compensation insurance coverage.

B. Specialized Scope and Limits of Insurance

Other required insurance coverages may be required based on type of services and product provided through this contract. If required, Contractor shall maintain coverage at least as broad as the insurance types and amounts described below.

1) Professional Liability Insurance

Contractor shall provide Professional Liability Insurance covering any damages caused by an error, omission or any negligent acts related to the services to be provided under this Contract by the Contractor and Contractor’s subcontractors, agents, officers or employees in an amount not less than $2,000,000 per claim and not less than $3,000,000 annual aggregate limit.

2) Cyber Liability/Network Security and Privacy Liability

Contractor shall provide Cyber Liability/ Network Security and Privacy Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 policy aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. This insurance must include coverage for third party claims and for losses, thefts, unauthorized disclosures, access or use of Agency or client data (which may include, but is not limited to, Personally Identifiable Information (“PII”), Payment Card Data and Protected Health Information (“PHI”)) in any format, including coverage for accidental loss, theft, unauthorized disclosure access or use of Agency data. The policy shall provide coverage for breach response costs, extortion payments, regulatory fines and penalties as well as credit monitoring expenses.

3) Technology Professional Liability Errors & Omissions (Include this section only if vendor is providing a technology service (data storage, website designers, etc.,) or product (software providers)).

Contractor shall provide Technology Professional Liability Errors and Omissions Insurance appropriate to the Contractor’s/Consultant’s profession and work hereunder, with limits not less than $2,000,000 per occurrence and in the aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by the Vendor in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses.

The Policy shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the Agency in the care, custody, or control of the Vendor.

4) Pollution Liability Contractor shall provide Pollution Liability Insurance covering Contractor’s or appropriate subcontractor’s liability for bodily injury, property damage and environmental damage resulting from sudden accidental and gradual pollution and related cleanup costs incurred by Contractor, all arising out of the goods delivered or Services (including transportation risk) performed under this Contract with a combined single limit per occurrence not less than $__________________ and not less than $____________________ annual aggregate limit.

An endorsement to the Commercial General Liability or Automobile Liability policy, covering Contractor’s or subcontractor’ liability for bodily injury, property damage and environmental damage resulting from sudden accidental and gradual pollution and related clean-up cost incurred by the Contractor that arise from the goods delivered or Services (including transportation risk) performed by Contractor under this Contract is also acceptable.

C. Other Insurance provision required under this Section:

1) Primary and Non-Contributory Coverage

For any claims related to this contract, the Contractor’s insurance coverage shall be primary and non-contributory and at least as broad as ISO CG 20 01 04 13 as respects SAMTD, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by SAMTD and its directors, officers, representative, agents, volunteers and employees shall be excess of the Contractor’s insurance and shall not contribute with it. This requirement shall also apply to any Excess Liability policies. This must be noted on the insurance certificate.

Any damages arising out of a loss are the contractor’s responsibility whether or not underlying insurance has sufficient limits. If the Contractor maintains broader coverage and/or higher limits than the minimums shown above, SAMTD shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to SAMTD.

2) Excess Policy The Contractor may use Excess Insurance to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Excess Policies evidence all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Excess insurance policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor’s primary and excess liability policies are exhausted.

3) Waiver of Subrogation

Contractor hereby grants to SAMTD a waiver of any right to subrogation which any insurer of said Contractor may acquire against SAMTD by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not SAMTD has received a waiver of subrogation endorsement from the insurer.

4) Acceptability of Insurers

Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to SAMTD.

5) Special Risks or Circumstances Entity reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

6) Certificate(s) and Proof of Insurance/Verification Contractor shall provide to SAMTD Certificate(s) of Insurance for all required insurance before delivering any goods and performing any services required under this contract. The Certificate(s) of Insurance must list SAMTD as a Certificate holder. The Certificate(s) of Insurance must also include all required endorsements or copies of the applicable policy language effecting coverage required by this Contract. If excess Insurance is used to meet the minimum insurance requirement, the Certificate(s) of Insurance must include a list of all policies that fall under the Excess Insurance. As proof of insurance, SAMTD has the right to request copies of insurance policies and endorsements relating to the insurance requirements under this contract for the purpose of coverage verification.

Failure of SAMTD to demand certificates of insurance, additional insured endorsements or other evidence of full compliance with these insurance requirements or failure of SAMTD to identify a deficiency from evidence that is provided shall not be construed as a waiver of Contractor’s obligation to maintain such insurance.

7) Notice of Cancellation/Change in Coverage Each insurance policy required above shall state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits, non-renewed, or materially changed except after thirty (30) days’ prior written notice has been given to SAMTD, except that ten

(10) days’ prior written notice shall apply in the event of cancellation for non-payment of premium. Prior written notice shall be sent to SAMTD pursuant to the Notices/Ship To provisions of this agreement.

8) Subcontractors Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that SAMTD is an additional insured on insurance required from subcontractors.

9) Additional Insured Status

All liability insurance, except for Workers’ Compensation, Professional Liability, Directors and Officers Liability and Network Security and Privacy Liability (if applicable), required under this Contract must include an Additional Insured endorsement specifying SAMTD and its directors, officers, representative, agents, volunteers and employees as Additional Insureds, but only with respect to Contractor’s goods to be delivered and Services to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance.

The Additional Insured endorsement with respect to liability arising out of Contractor’s ongoing operations must be on, or at least as broad as, ISO Form CG 20 10 and the Additional Insured endorsement with respect to completed operations must be on, or at least as broad as ISO form CG 20 37.

10) Failure to Maintain Insurance Coverage If Contractor, for any reason, fails to maintain insurance coverage which is required pursuant to this contract, the same shall be deemed a material breach of contract. SAMTD, at its sole option, may terminate this contract and obtain damages from Contractor resulting from said breach. Alternatively, SAMTD may purchase such coverage (but has no special obligation to do so), and without further notice to Contractor, the SAMTD may deduct from sums due to Contractor any premium costs advanced by SAMTD for such insurance.

11) Special Risks or Circumstances SAMTD reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.