RFP 24-009 EAMS - Appendix A - General Terms and Conditions.pdf

Salem Area Mass Transit District (SAMTD) RFP 24-009 Enterprise Asset Management Software (EAMS)

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APPENDIX A

GENERAL TERMS AND CONDITIONS

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.

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The Contractor shall perform at least fifty 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 proposal 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

A. 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.

B. 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

RFP 24-009 EAMS - Appendix A - General Terms and Conditions Page 3 of 8 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

A. 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.

B. 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, RFP 24-009 EAMS - Appendix A - General Terms and Conditions Page 4 of 8 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. 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.

B. 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 Termination for Default - RESERVED

This term is found in Appendix C Federal Terms and Conditions

GC.14 Termination for Convenience – RESERVED

GC.15 Inspection of Goods and Services

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

RFP 24-009 EAMS - Appendix A - General Terms and Conditions Page 5 of 8 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.

GC.16 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.17 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.18 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.

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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.19 Audit and Inspection of Records

GC.20 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.21 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.22 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.23 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.24 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 due to Contractor's failure to purchase or maintain any required insurance.

Contractor shall maintain insurance of the types and in the amounts described below.

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1) Commercial General Liability Insurance

Commercial General Liability insurance, with coverage limits not less than:

(a) $2,000,000.00 per occurrence, bodily injury and property damage; and

(b) $2,000,000.00 general aggregate, bodily injury and property damage.

Such coverage will be equivalent to or better than the Insurance Service Office (ISO) standard coverages, conditions, and extensions, and shall not contain limitations or exclusions for Blanket Contractual, Broad Form Property Damage, Personal Injury, Premises-Operations, Products and- Completed Operations, Independent Contractors, Fire Legal Liability, and Explosion, Collapse, and Underground (XCU).

The General Liability policy shall be endorsed with CG 2010 1185 or CG 2010 1001 and CG 2037 1001 or equivalent, naming SAMTD and its directors, officers, representatives, agents, and employees as additional insured.

2) Cyber Liability/Technology Errors & Omissions

Technology Professional Liability or Electronic Data or Technology Errors and Omissions with limits not less than:

(a) $2,000,000 per occurrence or claim, and

(b) $2,000,000 aggregate.

Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by PROVIDER and shall include, but not be limited to, liability arising out of the loss, loss of use of, damage to, corruption or, inability to access, or inability to manipulate electronic data, infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion, and network security.

The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to such obligations.

3) Business Auto Liability Insurance

Automobile bodily injury and property damage liability insurance covering all motor vehicles, whether owned, non-owned, leased, or hired, with not less than the following limits:

(a) Bodily injury: $2,000,000.00 per person; $2,000,000.00 per accident; and

(b) Property damage: $2,000,000.00 per accident.

The Automobile policy shall be endorsed with CA 20 48 02 99 or equivalent, naming SAMTD and its directors, officers, representatives, agents, and employees as additional insured.

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4) Worker’s Compensation Insurance

Oregon statutory workers' compensation and employer’s liability coverage, including all states protection, if applicable, voluntary compensation and Federal endorsement. Contractor shall include U.S. Longshore and Harbor Workers Compensation Act and Maritime coverage (“Jones Act”). Employer’s liability coverage shall have the following minimum limits:

(a) Bodily Injury by Accident: $1,000,000.00 each accident

(b) Bodily Injury by Disease $1,000,000.00 each employee

(c) Bodily Injury by Disease: $1,000,000.00 policy limit

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.

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.

The insurance required under this Paragraph shall:

1) Include (as evidenced by endorsement) SAMTD and its directors, officers, representative, agents, and employees as additional insureds with respect to work or operations connected with the Contract (excluding Professional Liability and Worker’s Compensation policies);

2) Require Contractor to give SAMTD not less than thirty (30) days written notice prior to termination, cancellation, or non-renewal of coverage;

3) Insurance policies shall be purchased only from insurance companies that meet SAMTD’S A.M.

Best Rating criteria of “A-” or better (excluding SAIF) and are authorized to do insurance business in Oregon;

4) Contractor will cause its underwriters of insurance policies to waive their rights of subrogation arising from the work performed under this Contract. Contractor’s insurance shall apply as primary and will not seek contribution from any insurance or self-insurance maintained by, or provided to, the additional insureds listed above. This must be noted on the insurance certificate.