RFP 260548

EXHIBIT C

PROPOSED AGREEMENT NO. C260548

BETWEEN

ORANGE COUNTY TRANSPORTATION AUTHORITY

AND

THIS AGREEMENT is effective as of this _____ day of ________________________, 20__

(“Effective Date”), by and between the Orange County Transportation Authority, 550 South Main

Street, P.O. Box 14184, Orange, CA 92863-1584, a public corporation of the State of California

(hereinafter referred to as "AUTHORITY") and _________, ________________ (hereinafter referred to as "CONTRACTOR").

WITNESSETH:

WHEREAS, AUTHORITY requires assistance from CONTRACTOR to provide continuous freeway service patrol services on certain Orange County Freeways; and

WHEREAS, said work cannot be performed by the regular employees of AUTHORITY; and

WHEREAS, CONTRACTOR has represented that it has the requisite personnel and experience, and is capable of performing such services; and

WHEREAS, CONTRACTOR wishes to perform these services;

NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CONTRACTOR as follows:

ARTICLE 1. COMPLETE AGREEMENT

A. This Agreement, including all exhibits and documents incorporated herein and made applicable by reference, constitutes the complete and exclusive statement of the terms and conditions of this Agreement between AUTHORITY and CONTRACTOR and it supersedes all prior representations, understandings and communications. The invalidity in whole or in part of any term or condition of this Agreement shall not affect the validity of other terms or conditions.

B. AUTHORITY's failure to insist in any one or more instances upon CONTRACTOR's performance of any terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY's right to such performance or to future performance of such terms or conditions and CONTRACTOR's obligation in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not be binding upon

AUTHORITY except when specifically confirmed in writing by an authorized representative of

AUTHORITY by way of a written amendment to this Agreement and issued in accordance with the provisions of this Agreement.

ARTICLE 2. AUTHORITY DESIGNEE

The Chief Executive Officer of AUTHORITY, or designee, shall have the authority to act for and exercise any of the rights of AUTHORITY as set forth in this Agreement.

ARTICLE 3. SCOPE OF SERVICES

A. CONTRACTOR shall perform the work necessary to complete in a manner satisfactory to

AUTHORITY the services set forth in Exhibit A, entitled "Scope of Services," attached to and, by this reference, incorporated in and made a part of this Agreement. All services shall be provided at the times and places designated by AUTHORITY.

B. CONTRACTOR shall provide the personnel listed below to perform the above-specified services, which persons are hereby designated as key personnel under this Agreement.

Names / Functions

C. No person named in paragraph B of this Article, or his/her successor approved by

AUTHORITY, shall be removed or replaced by CONTRACTOR, nor shall his/her agreed-upon function or level of commitment hereunder be changed, without the prior written consent of AUTHORITY.

D. Should the services of any key person become no longer available to CONTRACTOR, the resume and qualifications of the proposed replacement shall be submitted to AUTHORITY for approval as soon as possible, but in no event later than seven (7) calendar days prior to the departure of the incumbent key person, unless CONTRACTOR is not provided with prior notice by the departing employee. AUTHORITY shall respond to CONTRACTOR within seven (7) calendar days following receipt of these qualifications concerning acceptance of the candidate for replacement.

ARTICLE 4. TERM OF AGREEMENT

This Agreement shall commence upon execution of both Parties on __ day of _______________,202_ and shall continue in full force and effect through October 1, 2033, unless earlier terminated or extended as provided in this Agreement.

ARTICLE 5. PAYMENT

A. For CONTRACTOR’s full and complete performance of its obligations under this Agreement and subject to the maximum cumulative payment obligation provisions set forth in Article 6, AUTHORITY shall pay CONTRACTOR in accordance with the following provisions.

B. CONTRACTOR agrees to provide all personnel, facilities, effort, materials and equipment required to complete, to the full satisfaction of AUTHORITY and the State of California

Department of Transportation (hereinafter referred to as “CALTRANS”), and the California

Highway Patrol (hereinafter referred to as “CHP”), all the work described in the Scope of

Services. The AUTHORITY’s Project Manager will review the price of California Diesel #2 Ultra

Low Sulfur at the close of each month. The Vehicle Service Hour ("VSH") rates for each month will be determined by the average price of California Diesel #2 Ultra Low Sulfur, as published by the United States Energy Information Administration. AUTHORITY agrees to pay

CONTRACTOR as per the following fixed hourly rates for the service:

SERVICE AREA #: __________

2. If fuel costs between $2.01 - $3.00/gallon $___________/VSH

3. If fuel costs between $3.01 - $4.00/gallon $___________/VSH

4. If fuel costs between $4.01 - $5.00/gallon $___________/VSH

5. If fuel costs between $5.01 - $6.00/gallon $___________/VSH

6. If fuel costs between $6.01 - $7.00/gallon $___________/VSH

7. If fuel costs between $7.01 - $8.00/gallon $___________/VSH

8. If fuel costs between $8.01 - $9.00/gallon $___________/VSH

9. If fuel costs between $9.01 - $10.00/gallon $___________/VSH

C. Reimbursement: AUTHORITY shall reimburse CONTRACTOR on an hourly basis in accordance with the CHP monthly billing statement for services rendered during the hours of operation less any penalties listed on the CHP monthly billing statement. Actual costs shall not exceed the hourly rates set forth in this Article for the duration of this Agreement. Overtime policy shall be subject to prior approval by the CHP. CHP shall document all overtime requests.

Overtime shall be reimbursed at the straight time rates and paid in quarter hour increments.

D. Invoices shall be submitted by CONTRACTOR on a monthly basis and shall be submitted in duplicate to AUTHORITY’s Accounts Payable office. CONTRACTOR may also submit invoices electronically to AUTHORITY’s Accounts Payable Department at vendorinvoices@octa.net.

AUTHORITY shall remit payment within thirty (30) calendar days of the receipt and approval of each invoice. Each invoice shall include the following information:

1. Agreement No. C260548;

2. Specify the Beat number for which the payment is being requested;

3. The time period covered by the invoice;

4. Labor (staff name, hours charged, hourly billing rate, current charges, and cumulative charges) performed during the billing period;

5. Total monthly invoice (including project-to-date cumulative invoice amount);

6. Itemized expenses including support documentation incurred during the billing period;

7. Monthly Progress Report;

8. Certification signed by the CONTRACTOR or his/her designated alternate that a) The invoice is a true, complete and correct statement of reimbursable costs and progress; b)

The backup information included with the invoice is true, complete and correct in all material respects; c) All payments due and owing to subconsultants and suppliers have been made; d) Timely payments will be made to subconsultants and suppliers from the proceeds of the payments covered by the certification and; e) The invoice does not include any amount which CONTRACTOR intends to withhold or retain from a subconsultant or supplier unless so identified on the invoice.

9. Any other information as agreed or requested by AUTHORITY to substantiate the validity of an invoice.

E. Errors: Errors in billing will be resolved by AUTHORITY and the CONTRACTOR within ten (10) business days of receipt of invoice.

ARTICLE 6. MAXIMUM OBLIGATION

Notwithstanding any provisions of this Agreement to the contrary, AUTHORITY and CONTRACTOR mutually agree that AUTHORITY's maximum cumulative payment obligation (including obligation for

CONTRACTOR’s profit) shall be __________________________ Dollars ($__________.00) which shall include all amounts payable to CONTRACTOR for its subcontracts, leases, materials and costs arising from, or due to termination of, this Agreement.

ARTICLE 7. FUNDING

Performance of the obligations herein is conditioned on the availability of funds from

CALTRANS, CHP and AUTHORITY, which may be appropriately applied by AUTHORITY to the services to be provided hereunder.

ARTICLE 8. NOTICES

All notices hereunder and communications regarding the interpretation of the terms of this Agreement, or changes thereto, shall be effected by delivery of said notices in person or by depositing said notices in the U.S. mail, registered or certified mail, returned receipt requested, postage prepaid and addressed as follows:

To CONTRACTOR: To AUTHORITY:

TBD Orange County Transportation Authority

550 South Main Street

P.O. Box 14184

Orange, CA 92863-1584

ATTENTION: ATTENTION:

Name Name: Ellis Hoskin

Title: Title: Senior Contract Administrator

Phone: Phone: (714) 560-5551

Email: Email: ehoskin@octa.net

ARTICLE 9. INDEPENDENT CONTRACTOR

A. CONTRACTOR's relationship to AUTHORITY in the performance of this Agreement is that of an independent contractor. CONTRACTOR's personnel performing services under this

Agreement shall at all times be under CONTRACTOR's exclusive direction and control and shall be employees of CONTRACTOR and not employees of AUTHORITY. CONTRACTOR shall pay all wages, salaries and other amounts due its employees in connection with this

Agreement and shall be responsible for all reports and obligations respecting them, such as social security, income tax withholding, unemployment compensation, workers' compensation and similar matters.

B. Should CONTRACTOR’s personnel or a state or federal agency allege claims against

AUTHORITY involving the status of AUTHORITY as employer, joint or otherwise, of said personnel, or allegations involving any other independent contractor misclassification issues, CONTRACTOR shall defend and indemnify AUTHORITY in relation to any allegations made.

ARTICLE 10. INSURANCE

A. CONTRACTOR shall procure and maintain insurance coverage in full force and effect during the entire term of the Agreement. Coverage shall be full coverage and not subject to self-insurance provisions. CONTRACTOR shall provide the following insurance coverage:

1. Commercial General Liability, to include Products/Completed Operations, Independent

Contractors’, Contractual Liability, Advertising (if applicable to Scope of Work) and

Personal Injury Liability, and Property Damage with a minimum limit of $1,000,000 per occurrence, $2,000,000 general aggregate and $2,000,000 Products/Completed

Operations aggregate;

2. Automobile Liability Insurance to include owned, hired and non-owned autos with a combined single limit of $1,000,000 for each accident;

3. Excess Liability with a minimum limit of $5,000,000.00;

4. Workers’ Compensation with limits as required by the State of California including a Waiver of Subrogation in favor of AUTHORITY, its officers, directors and employees; and

5. Garage Liability - $ 1,000,000.00 Coverage;

6. Employers’ Liability with minimum limits of $1,000,000 per accident, $1,000,000 policy limit-disease, and $1,000,000 policy limit employee-disease.

7. On-Hook Liability: Listed below are the insurance endorsements for the On-Hook Liability coverage’s which shall be required for tow truck services:

Gross Vehicle Weight Coverage Per Accident

Less than 10,000 # $ 75,000

10 – 20,000 # $ 100,000

More than 20,000# $ 250,000

B. Proof of such coverage, in the form of a certificate of insurance and an insurance policy blanket additional insured endorsement, designating the AUTHORITY, its officers, directors, employees, agents, and the California Highway Patrol as additional insureds on general liability and automobile liability, as required by Agreement. Proof of insurance coverage must be received by AUTHORITY within ten (10) calendar days from the effective date of the

Agreement and prior to commencement of any work. Such insurance shall be primary and non-contributive to any insurance or self-insurance maintained by the AUTHORITY. Furthermore, AUTHORITY reserves the right to request certified copies or review all related insurance policies, in response to a related loss.

C. CONTRACTOR shall also include in each subcontract, the stipulation that subconsultants shall maintain insurance coverage in the amounts required of CONTRACTOR as provided in the

Agreement. Subconsultants will be required to include AUTHORITY as additional insureds on the Commercial General Liability, and Auto Liability insurance policies.

D. Insurer must provide AUTHORITY with at least thirty (30) days’ prior notice of cancellation or material modification of coverage, and ten (10) days’ prior notice for non-payment of premium.

E. CONTRACTOR shall submit required insurance certificates to AUTHORITY's insurance tracking contractor, InsureTrack. CONTRACTOR shall respond directly to InsureTrack’s request for updated insurance certificates and other insurance-related matters by email to octa@instracking.com.

F. CONTRACTOR shall include on the face of the certificate of insurance, the following information:

1. The Agreement Number C260548 and, the Senior Contract Administrator’s Name, Ellis

Hoskin

2. For Certificate Holder: The Orange County Transportation Authority, its officers, directors, employers and agents, c/o InsureTrack, P.O. Box 60840 Las Vegas, NV 89160.

mailto:octa@instracking.com

ARTICLE 11. ORDER OF PRECEDENCE

Conflicting provisions hereof, if any, shall prevail in the following descending order of precedence: (1) the provisions of this Agreement, including all exhibits; (2) the provisions of RFP 260548; (3)

CONTRACTOR’s proposal dated ___________; (4) all other documents, if any, cited herein or incorporated by reference.

ARTICLE 12. CHANGES

A. By written notice or order, AUTHORITY may, from time to time, order work suspension and/or make changes in the general scope of this Agreement, including, but not limited to, the services furnished to AUTHORITY by CONTRACTOR as described in the Scope of Work. If any such work suspension or change causes an increase or decrease in the price of this Agreement or in the time required for its performance, CONTRACTOR shall promptly notify AUTHORITY thereof and assert its claim for adjustment within ten (10) calendar days after the change or work suspension is ordered, and an equitable adjustment shall be negotiated. However, nothing in this clause shall excuse CONTRACTOR from proceeding immediately with the

Agreement as changed.

B. CONTRACTOR shall only commence work covered by an amendment after the amendment is executed by AUTHORITY.

ARTICLE 13. DISPUTES

A. Except as otherwise provided in this Agreement, when a dispute arises between

CONTRACTOR and AUTHORITY, the project managers shall meet to resolve the issue. If project managers do not reach a resolution, the dispute will be decided by AUTHORITY’s

Director of Contracts Administration and Materials Management (CAMM), who shall reduce the decision to writing and mail or otherwise furnish a copy thereof to CONTRACTOR. The decision of the Director, CAMM, shall be the final and conclusive administrative decision.

B. Pending final decision of a dispute hereunder, CONTRACTOR shall proceed diligently with the performance of this Agreement and in accordance with the decision of AUTHORITY's Director, CAMM. Nothing in this Agreement, however, shall be construed as making final the decision of any AUTHORITY official or representative on a question of law, which questions shall be settled in accordance with the laws of the State of California.

ARTICLE 14. TERMINATION

A. AUTHORITY may terminate this Agreement for its convenience at any time, in whole or part, by giving CONTRACTOR written notice thereof. Upon said notice, AUTHORITY shall pay

CONTRACTOR its allowable costs incurred to date of termination and those allowable costs determined by AUTHORITY to be reasonably necessary to effect such termination. Thereafter, CONTRACTOR shall have no further claims against AUTHORITY under this Agreement.

B. In the event either Party defaults in the performance of any of their obligations under this

Agreement or breaches any of the provisions of this Agreement, the non-defaulting Party shall have the option to terminate this Agreement upon thirty (30) days’ prior written notice to the other Party. Upon receipt of such notice, CONTRACTOR shall immediately cease work, unless the notice from AUTHORITY provides otherwise. Upon receipt of the notice from

AUTHORITY, CONTRACTOR shall submit an invoice for work and/or services performed prior to the date of termination. AUTHORITY shall pay CONTRACTOR for work and/or services satisfactorily provided to the date of termination in compliance with this

Agreement. Thereafter, CONTRACTOR shall have no further claims against AUTHORITY under this Agreement. AUTHORITY shall not be liable for any claim of lost profits or damages for such termination.

ARTICLE 15. MISSED SERVICE PENALTIES

A. Mechanical Breakdown: If a truck goes out of service for mechanical reasons, the

CONTRACTOR will be penalized in fifteen (15)-minute increments at straight time up to thirty

(30) minutes, until such time that the truck either returns to service or a backup truck is deployed. If the repair takes longer than thirty (30) minutes, the dock will be double the hourly rate. The start time for the dock will be the original time the FSP operator went out of service.

B. Missed Service: If an FSP operator arrives more than thirty (30) minutes late to the beat, or if a truck is unavailable other than due to a mechanical breakdown, or if an eligible FSP operator is unavailable to work a shift, the CONTRACTOR will be penalized triple the hourly rate for each fifteen (15)-minute increment of missed service.

C. Operator/Vehicle Removed from Service: If an FSP operator or vehicle is removed from service due to any violation of the CHP’s Standard Operating Procedures (“SOP”) or this Agreement, the CONTRACTOR will be penalized double the hourly rate for each fifteen (15) minutes that service is not provided.

D. Tardiness: If an FSP operator arrives late for service, the CONTRACTOR will be penalized double the hourly rate for the first fifteen (15) minutes that the FSP operator is tardy. After the first thirty (30) minutes, the CONTRACTOR will be penalized triple the hourly rate as Missed

Service from the beat start time, until the beat is covered.

E. Non-Compliance with Driver Wage and Hour Requirements: Contractor shall comply with all federal, state and local wage and hour regulations, with specific emphasis on California

Department of Industrial Relations Wage Order Nine, on-duty time, behind the wheel time, and rest time requirements. If CONTRACTOR fails to comply with commercial driver logbook guidelines related to on duty, behind the wheel, and rest period requirements, CONTRACTOR shall be penalized One Hundred Dollars ($100.00) for each employee occurrence. A pattern of non-compliance, or non-compliance with other federal, state and local regulations, may result in actions up to and including termination of this Agreement.

F. AUTHORITY has the right to modify penalties by providing a thirty (30)-day written notice to

CONTRACTOR.

ARTICLE 16. INDEMNIFICATION

CONTRACTOR shall indemnify, defend and hold harmless AUTHORITY, its officers, directors, employees and agents (indemnities) from and against any and all claims (including attorneys' fees and reasonable expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, damage to or loss of use of property caused by the negligent acts, omissions or willful misconduct by CONTRACTOR, its officers, directors, employees, agents, subconsultants or suppliers in connection with or arising out of the performance of this Agreement.

ARTICLE 17. ASSIGNMENTS AND SUBCONTRACTS

A. Neither this Agreement nor any interest herein nor claim hereunder may be assigned by

CONTRACTOR either voluntarily or by operation of law, nor may all or any part of this

Agreement be subcontracted by CONTRACTOR, without the prior written consent of AUTHORITY. Consent by AUTHORITY shall not be deemed to relieve CONTRACTOR of its obligations to comply fully with all terms and conditions of this Agreement.

B. If CONTRACTOR wishes to subcontract any of the work described in Exhibit B, AUTHORITY must be given prior notification and must consent to CONTRACTOR’s subcontracting portions of the Scope of Work to the requested subconsultant(s). If AUTHORITY approves of the subconsultant, CONTRACTOR shall include in the subcontract agreement the stipulation that

CONTRACTOR, not AUTHORITY, is solely responsible for payment to the subconsultant for the amounts owing and that the subconsultant shall have no claim, and shall take no action, against AUTHORITY, its officers, directors, employees or sureties for nonpayment by

CONTRACTOR.

Subcontractor Name Addresses Function

ARTICLE 18. AUDIT AND INSPECTION OF RECORDS

CONTRACTOR shall provide AUTHORITY, or other agents of AUTHORITY, such access to

CONTRACTOR's accounting books, records, payroll documents and facilities, as AUTHORITY deems necessary. CONTRACTOR shall maintain such books, records, data and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during CONTRACTOR's performance hereunder and for a period of four

(4) years from the date of final payment by AUTHORITY. AUTHORITY’s right to audit books and records directly related to this Agreement shall also extend to all first-tier subcontractors identified in

Article 15 of this Agreement. CONTRACTOR shall permit any of the foregoing parties to reproduce documents by any means whatsoever or to copy excerpts and transcriptions as reasonably necessary.

ARTICLE 19. CONFLICT OF INTEREST

A. CONTRACTOR agrees to avoid organizational conflicts of interest. An organizational conflict of interest means that due to other activities, relationships or contracts, the CONTRACTOR is unable, or potentially unable to render impartial assistance or advice to the AUTHORITY;

CONTRACTOR’s objectivity in performing the work identified in the Scope of Work is or might be otherwise impaired; or the CONTRACTOR has an unfair competitive advantage. CONTRACTOR is obligated to fully disclose to the AUTHORITY in writing Conflict of Interest issues as soon as they are known to the CONTRACTOR. All disclosures must be submitted in writing to AUTHORITY pursuant to the Notice provision herein. This disclosure requirement is for the entire term of this Agreement.

B. If the AUTHORITY determines that CONTRACTOR, its employees, or subconsultants are subject to disclosure requirements under the Political Reform Act (Government Code section

81000 et seq.), CONTRACTOR and its required employees and subconsultants shall complete and file Statements of Economic Interest (Form 700) with the AUTHORITY’s Clerk of the Board disclosing all required financial interests.

ARTICLE 20. CODE OF CONDUCT

CONTRACTOR agrees to comply with the AUTHORITY’s Code of Conduct as it relates to Third-Party contracts, which is hereby referenced and by this reference is incorporated herein. CONTRACTOR agrees to include these requirements in all of its subcontracts.

ARTICLE 21. PROHIBITION ON PROVIDING ADVOCACY SERVICES

CONTRACTOR and all subconsultants performing work under this Agreement, shall be prohibited from concurrently representing or lobbying for any other party competing for a contract with

AUTHORITY, either as a prime consultant or subconsultant. Failure to refrain from such representation may result in termination of this Agreement.

ARTICLE 22. FEDERAL, STATE AND LOCAL LAWS

CONTRACTOR warrants that in the performance of this Agreement, it shall comply with all applicable federal, state and local laws, statutes and ordinances and all lawful orders, rules and regulations promulgated thereunder.

ARTICLE 23. EQUAL EMPLOYMENT OPPORTUNITY

In connection with its performance under this Agreement, CONTRACTOR shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age or national origin. CONTRACTOR shall take affirmative action to ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, age or national origin. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.

ARTICLE 24. PROHIBITED INTERESTS

A. CONTRACTOR covenants that, for the term of this Agreement, no director, member, officer or employee of AUTHORITY during his/her tenure in office or for one (1) year thereafter, shall have any interest, direct or indirect, in this Agreement or the proceeds thereof.

B. No member of or delegate to, the Congress of the United States shall have any interest, direct or indirect, in this Agreement or to the benefits thereof.

ARTICLE 25. OWNERSHIP OF REPORTS AND DOCUMENTS

A. The originals of all letters, documents, reports and other products and data produced under this Agreement shall be delivered to, and become the property of AUTHORITY. Copies may be made for CONTRACTOR's records but shall not be furnished to others without written authorization from AUTHORITY. Such deliverables shall be deemed works made for hire and all rights in copyright therein shall be retained by AUTHORITY.

B. All ideas, memoranda, specifications, plans, manufacturing, procedures, drawings, descriptions, and all other written information submitted to CONTRACTOR in connection with the performance of this Agreement shall not, without prior written approval of AUTHORITY, be used for any purposes other than the performance under this Agreement, nor be disclosed to an entity not connected with the performance of the project. CONTRACTOR shall comply with

AUTHORITY’s policies regarding such material. Nothing furnished to CONTRACTOR, which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry shall be deemed confidential. CONTRACTOR shall not use AUTHORITY’s name, photographs of the project, or any other publicity pertaining to the project in any professional publication, magazine, trade paper, newspaper, seminar or other medium without the express written consent of AUTHORITY.

C. No copies, sketches, computer graphics or graphs, including graphic artwork, are to be released by CONTRACTOR to any other person or agency except after prior written approval by AUTHORITY, except as necessary for the performance of services under this

Agreement. All press releases, including graphic display information to be published in newspapers, magazines, etc., are to be handled only by AUTHORITY unless otherwise agreed to by CONTRACTOR and AUTHORITY.

ARTICLE 26. PATENT AND COPYRIGHT INFRINGEMENT

A. In lieu of any other warranty by AUTHORITY or CONTRACTOR against patent or copyright infringement, statutory or otherwise, it is agreed that CONTRACTOR shall defend at its expense any claim or suit against AUTHORITY on account of any allegation that any item furnished under this Agreement or the normal use or sale thereof arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and

CONTRACTOR shall pay all costs and damages finally awarded in any such suit or claim, provided that CONTRACTOR is promptly notified in writing of the suit or claim and given authority, information and assistance at CONTRACTOR's expense for the defense of same. However, CONTRACTOR will not indemnify AUTHORITY if the suit or claim results from: (1) AUTHORITY's alteration of a deliverable, such that said deliverable in its altered form infringes upon any presently existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other material not provided by CONTRACTOR when such use in combination infringes upon an existing U.S. letters patent or copyright.

B. CONTRACTOR shall have sole control of the defense of any such claim or suit and all negotiations for settlement thereof. CONTRACTOR shall not be obligated to indemnify

AUTHORITY under any settlement made without CONTRACTOR's consent or in the event AUTHORITY fails to cooperate fully in the defense of any suit or claim, provided, however, that said defense shall be at CONTRACTOR's expense. If the use or sale of said item is enjoined as a result of such suit or claim, CONTRACTOR, at no expense to

AUTHORITY, shall obtain for AUTHORITY the right to use and sell said item, or shall substitute an equivalent item acceptable to AUTHORITY and extend this patent and copyright indemnity thereto.

ARTICLE 27. FINISHED AND PRELIMINARY DATA

A. All of CONTRACTOR’s finished technical data, including but not limited to illustrations, photographs, tapes, software, software design documents, including without limitation source code, binary code, all media, technical documentation and user documentation, photo prints and other graphic information required to be furnished under this Agreement, shall be AUTHORITY’s property upon payment and shall be furnished with unlimited rights and, as such, shall be free from proprietary restriction except as elsewhere authorized in this

Agreement. CONTRACTOR further agrees that it shall have no interest or claim to such finished, AUTHORITY-owned, technical data; furthermore, said data is subject to the provisions of the Freedom of Information Act, 5 USC 552.

B. It is expressly understood that any title to preliminary technical data is not passed to

AUTHORITY but is retained by CONTRACTOR. Preliminary data includes roughs, visualizations, software design documents, layouts and comprehensives prepared by

CONTRACTOR solely for the purpose of demonstrating an idea or message for AUTHORITY’s acceptance before approval is given for preparation of finished artwork. Preliminary data title and right thereto shall be made available to AUTHORITY if CONTRACTOR causes

AUTHORITY to exercise Article 14, and a price shall be negotiated for all preliminary data.

ARTICLE 28. HEALTH AND SAFETY REQUIREMENTS

CONTRACTOR shall comply with all the requirements set forth in Exhibit __, titled “Level 2 SAFETY

SPECIFICATIONS.”

ARTICLE 29. CONTRACTOR PURCHASED EQUIPMENT

A. If during the course of this Agreement, additional equipment is required, which will be paid for by the AUTHORITY, CONTRACTOR must request prior written authorization from the

AUTHORITY’s project manager before making any purchase. As part of this purchase request, CONTRACTOR shall provide a justification for the necessity of the equipment or supply and submit copies of three (3) competitive quotations. If competitive quotations are not obtained, CONTRACTOR must provide the justification for the sole source.

B. CONTRACTOR shall maintain an inventory record for each piece of equipment purchased that will be paid for by the AUTHORITY. The inventory record shall include the date acquired, total cost, serial number, model identification, and any other information or description necessary to identify said equipment or supply. A copy of the inventory record shall be submitted to the

AUTHORITY upon request.

C. At the expiration or termination of this Agreement, CONTRACTOR may keep the equipment and credit AUTHORITY in an amount equal to its fair market value. Fair market value shall be determined, at CONTRACTOR’s expense, on the basis of an independent appraisal. CONTRACTOR may sell the equipment at the best price obtainable and credit

AUTHORITY in an amount equal to the sales price. If the equipment is to be sold, then the terms and conditions of the sale must be approved in advance by AUTHORITY’s project manager.

D. Any subconsultant agreement entered into as a result of this Agreement shall contain all provisions of this clause.

ARTICLE 30. SETOFF

If at any time, in the sole discretion of the AUTHORITY, it is reasonably believed that the

CONTRACTOR is liable to the AUTHORITY for any costs, penalties and/or sums, the AUTHORITY shall be entitled to recover those costs, penalties and/or sums from any amounts that may be presently due and payable to the CONTRACTOR or may become due and payable to the CONTRACTOR, including, but not limited to payment for invoices submitted to the AUTHORITY for services provided under this Agreement.

ARTICLE 31. LIMITATION ON GOVERNMENTAL DECISIONS

CONTRACTOR shall not make, participate in making, or use its position to influence any governmental decisions as defined by the Political Reform Act, Government Code section 8100 et seq., and the implementing regulations in Title 2 of the California Code of Regulations section 18110 et seq.

CONTRACTOR’s personnel performing services under this Agreement shall not authorize or direct any actions, votes, appoint any person, obligate, or commit AUTHORITY to any course of action or enter into any contractual agreement on behalf of AUTHORITY. In addition, CONTRACTOR’s personnel shall not provide information, an opinion, or a recommendation for the purpose of affecting a decision without significant intervening substantive review by AUTHORITY personnel, counsel, and management.

ARTICLE 32. FORCE MAJEURE

Either party shall be excused from performing its obligations under this Agreement during the time and to the extent that it is prevented from performing by an unforeseeable cause beyond its control, including but not limited to: any incidence of fire, flood; acts of God; commandeering of material, products, plants or facilities by the federal, state or local government; national fuel shortage; or a material act or omission by the other party; when satisfactory evidence of such cause is presented to the other party; and provided further that such nonperformance is unforeseeable, beyond the control and is not due to the fault or negligence of the party not performing.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. C260548 to be executed as of the date of the last signature below.

CONTRACTOR ORANGE COUNTY TRANSPORTATION

AUTHORITY

**signature_187794**

SIGNATURE

**signature_187797**

DARRELL E. JOHNSON, CHIEF EXECUTIVE

OFFICER

APPROVED AS TO FORM:

**signature_187800**

JAMES M. DONICH, GENERAL COUNSEL

APPROVED:

**signature_187801**

KIRK AVILA, GENERAL MANAGER