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HomeMy WebLinkAbout09/18/2007, C7 - APPROVE PARTICIPATION IN A JOINT TRANSIT VEHICLE WEB BASED PROCUREMENT PILOT PROJECT council M.min Dae. j agenda izepont C I T Y O F S A N L U I S O B I S P 0 FROM: Jay Walter,Director of Public Works Prepared By: John Webster, Sr.,Transit Manager SUBJECT: APPROVE PARTICIPATION IN A JOINT TRANSIT VEHICLE WEB BASED PROCUREMENT PILOT PROJECT CAO RECOMMENDATION 1. Approve the City's participation in the Federal Transit Administration's Cooperative Procurement Pilot Program. 2. Authorize the Mayor to sign an agreement with Implicit Purchase Pooling Solutions, LP for consultant services associated with an internet based cooperative purchasing program. 3. Authorize the CAO to execute transit vehicle purchase orders for vehicles identified through the Cooperative Procurement Pilot Program if they are within the estimated purchase costs approved in the City's 2007-09 Financial Plan. DISCUSSION Background A program to assist transit agencies in the purchase of new heavy duty transit vehicles has been developed by the Federal Transit Administration to allow savings on local grant match requirements and leverage of limited local funds. The City of San Luis Obispo has the opportunity to participate as an approved agency in the newly created Federal Transit Administration Cooperative Procurement Pilot Program to procure heavy duty transit buses. This program will utilize a joint specification and request for proposal purchasing process. Project funding will come from the Federal Transportation Administration and State of California Transportation Development Act. Creation of the Cooperative Procurement Pilot Program The Federal Transportation Administration created the Cooperative Procurement Pilot Program to assist transit agencies in the purchase of heavy duty transit vehicles nationwide. As part of the program, the Federal Transit Administration solicited proposals from private firms to develop state- of-the-art purchasing software to coordinate mass purchasing of transit vehicles with multi-agency participation. By participating in this program the City will be able to purchase transit replacement vehicles with a greater variety of fuel type,emissions, and vehicle styles. Qualified transit agencies that participate in the program will be eligible for federal funding in the amount of 90% of the vehicle procurement cost, 10% more than the City's usual 80% federal share. Guidelines for this Federal Transit Administration program require participants to use internet technology to assist in developing specifications and procurement documents as well as e7 1. � I evaluating proposals. The Federal Transit Administration pilot program funds eligible fees and expenses in addition to the direct cost of the transit vehicles. Eligible expenses include the cost of intemet-based software to help the agencies collaboratively develop specifications. Implicit Purchase Pooling Solutions was selected by the Federal Transportation Administration to act as one of the consultants for this program and is responsible for the professional development, timely completion, and coordination of all services furnished by its subcontractors, sub consultants,principals, officers, employees, and agents. By entering into the proposed Agreement (Attachment 1) with Implicit Purchase Pooling Solutions the City becomes a participating agency in the pilot program. By using Implicit Purchase Pooling Solutions as a consultant, the City will be able to use internet based software technology to develop heavy duty transit vehicle specifications, aggregate equipment requirements, generate cooperative specifications and requests for proposal packages with other participating agencies. The proposed Agreement includes termination protections in case of a lack of future Federal funding or other circumstances that prohibit the issuance of joint requests for proposal. Staff has also negotiated provisions for termination in the interest of the City if the program does not deliver the vehicle types needed and within the City's budget. The term of the contract is for approximately five years. If the Implicit Cooperative Procurement Pilot Program does not issue a joint request for proposal a waiver of all fees associated with our participation will occur and no out of pocket money from the City will be required Three transit agencies have already released a first request for proposal under the Federal Transit Administration's Cooperative Procurement Pilot Program. The request for uses Cooperative Procurement Pilot Program's internet-based specification and document development tool to create the proposal details specifications for the joint procurement of up to 431 transit vehicles. The project is one of five Cooperative Procurement Pilot Program projects across the nation (our project if authorized would become the 6u') sanctioned by the Federal Transit Administration. FISCAL IMPACT The City's participation in the Cooperative Procurement Pilot Program results in no financial impact to the General Fund. The proposed Agreement allows for an additional 10% in available Transportation Development Act funds to be utilized for capital and operating expenses because of the reduced local procurement pool match requirement. Table number one illustrates the potential Transportation Development Act savings ($34,444) for one heavy duty transit vehicle purchased in the first year with a base price of $325,000. On possible future use of Transportation Development Act savings accumulated over the term of this agreement could be to purchase additional vehicles depending on the number of vehicles purchased through the pool. The City's allocation of Federal Transit Administration money is controlled by the annual Program of Projects approved by the Council and San Luis Obispo Council of Governments (SLOCOG) each year. The deadline for the Cooperative Procurement Pilot Program joint request for proposal to be issued is September 2008 in order to be eligible for Federal Transportation Administration funding for 2008-09 purchases. 2 e ;7-.z 1 Table 1 -PurchaseComparison Cooperative Current Purchasing Procurement Pilot Metho ..- .. Program Purchasing Vehicle Costs $350,188 Vehicle Cost $355,938 80% Federal Funds $280,150 90% Federal Funds $320,344 20%TDA Match $70,038 10%TDA Match $35,594 TOTAL Funding Sources 1 $350,188 1 1 $355,938 Local TDA Savings $34,444 Note that the Purchase Pool Fees are an annual one percent of total vehicle(s) base/option purchase price plus an annual $2,500 software hosting fee. Sales tax on the total transit vehicle(s) purchase price is not included as part of the 1% purchase pool fee calculation. The estimated fees are therefore $5,750. All Purchase Pool related fees and expenses are eligible for Federal Transportation Administration 5307 and Transportation Development Act funding and are included in the calculations above. CONCURRENCES The Mass Transportation Committee(MTC) will review this issue at its September 12th meeting and staff will seek its concurrence for the City's participation in this pilot program. The MTC's recommendation will be provided to Council prior to its official meeting via the red file process. ALTERNATIVES 1. Modify Proposed Agreement. Council could direct staff to modify the term of the proposed Agreement with Implicit Purchase Pooling Solutions. Specific direction should be provided as to the modifications to be made. 2. Reject Proposed Agreement and Seek Other Options. Council could direct staff to seek other cooperative purchasing agreement options or bid future bus purchases separately. Those would likely require a 20% Local Transportation Development Act match instead of 10% pool option presented with this pilot program. ATTACHMENTS 1. Agreement from Implicit Purchase Pooling Solutions; L.P 2. April 7, 2007 SLO Letter of Intent G:\StaR-Reports-Agendas-Minutes\_CAR\2007\Transportation\Transit\Implicit Purchase Pool\CAR-Implicit Purchase Pool Solutions-PRODUCTION v5 shelley changes jpw09-06.2007.doc 3 e ;7-3 Attachment ; OOQ JOINT PROCIIRENffiVT-WEB BASED PROGRAM AGREEMENT O(� This AGREEMENT is made and entered into this day of 2007,by and between (�-! ImplicitPurchasePooling Solutions,L.P.(hereinafterrefenfedto as"CONSULTANTS and City of San Lms Obisuo.Californ® (hereinafter refer ed to as"CLIENT'),for the purchase and maintenance of a software licenseforthe Purchase Pooling Solutions Application delivered via www.bmig pool.com(hereinafter referred to as"Services'S. WITNESSETH: WHEREAS,CLIENT is participatingas an approved agency in the Federal TransitAdminishation's (FTA)Cooperative Procurement Pilot Program(CPPP)as defined in Section 166 of Public Law No. 10&109,the Transportation,Treasury,and Independent Agencies Appropriations Act of 2004 and Section 167 of the Transportation,Treasury and Independent Agencies Appropriations Act,2005;and WHEREAS,CLIENT intends to procure heavy duty transit buses with other transit agencies participating in the CPPPutilizing a joint specifiation and joint Request for Proposal(RFP);and WHEREAS,the CPPP directs cooperating agencies to maximizethe use ofInternetbased software technology to develop specifications, aggregate equipment requirements, create cooperative specifications,and generate a cooperative RFP package;and WHEREAS, the CONSULTANT is experienced and is knowledgeable and can provide such a system, NOW,THEREFORE,in consideration of the promise;terms,and conditions contained herein,the parties agree as follows: PART I-RESPONSIBILITIES OF CONSULTANT SEC. 101 The CONSULTANTs Services consist of those services enumerated herein. All of such Services shall be performed by the CONSULTANT,the CONSULTANTS employees,and any properly identified subcontractors or subconsultants tithe CONSULTANT. SEC. 102 The CONSULTANT shall be responsible and liable for the professional quality,timely completion,and coordination of all Services famished by its subcontractors,subconsultants, principals,officers,employees,andagents underthis AGREEMENT. The CONSULTANT shall perform its Services pursuant to this AGREEMENT in a technically sound manner. The CONSULTANT warrants that its Services shall be ofa professionalquality and will conform to generallyaccepted industry practices.The CONSULTANT also warrants that its Services, and CLIENT`s use of them, do not infringe the patent, trademark, copyright or other intellectual property or proprietary right of any third party. SEC. 103 The CONSULTANT shall complete the Services,as described in the Scope of Work,which is attached hereto as Exhibit"A"and by reference incorporated into and made a part of this AGREEMENT,in a timelymanner,as specified in this AGREEMENT (Q822M I C�-y AttaChmant 1 SEC.104 The CONSULTANT agrees that alI work comprising the Services will be perfoni' O p U conformancewith applicableFederal,state,and local statutes,codes,ordinances,resolutions and regulations. The CONSULTANT shall be responsible for complymgwith any and all such requirements at its sole cost and expense and without any increase in the price or timefiamesspecif ed in this AGREEMENT due to such compliance.If;during the term of this AGREEMENT, there are any changes or new laws, ordinances,statutes,rules or regulations not known or foreseeable at the time of signing this AGREEMENT which become effectiveand which affectthe cost or time ofperformance ofthe AGREEMENT,the CONSULTANT shall immediately notify CLIENT in writing and submit detailed documentation of such effect in terms of both time and cost of performing the AGREEMENT. Except for an extension of time,no payment or compensation of any kind shall be made to the CONSULTANT for any costs incurred by such changed or new laws, ordinances,statutes,rules or regulations,includingbut not limited to those which may arise due to delay,disruption,acceleration or inefficiency. However,CLIENT may elect to review the cost impact, and may, in its sole discretion, make an equitable adjustment in compensation for an increase or decrease in time,labor,materials and fees. If any discrepancy or inconsistencyshali be discovered between this AGREEMENT and any law,ordinance,regulation,order or decree,CONSULTANT shall immediately report the same in writing toCLIENT who will issue such instructions as may be necessary. SEC. 105 The CONSULTANT shall, without additional compensation, correct or revise any deficiencies,errors or omissions caused bythe CONSULTANT in its analysis,reports,and services in connection with the delivery ofServicespursuantto this AGREEMENT. Itis also understood and agreed by both parties that if any error is found,the CONSULTANT will expeditiously make the necessary carection,at no expense toCLIENT. SEC. 106 It is agreed that any and all documents prepared and submitted by the CONSULTANT to CLIENT,and all information required of the CONSULTANT by this AGREEMENT,shall become the property of CLIENT with the exception of user manuals and training materials, which shall'remain the property of CONSULTANT. In the event ofthe termination ofthis AGREEMENT,all reports,documents and files related to the Services shall become the property of CLIENT,and the CONSULTANT agrees to surrender all such documents toCL1ENT. The CONSULTANT may retain copies of information,reproducible copies of drawings and copies of other documents. SEC. 107 The CONSULTANT will furnish to CLIENT, in a timely manner, copies of all correspondence to regulatory agencies,consulting firms,contractors,and local,State and Federal agencies relating to the Services performed under this AGREEMENT. SEC. 108 The CONSULTANT agrees that its officers and employeeswill cooperatewith CLIENT in the performanceof Services under this AGREEMENT and will be available forconsultation with CLIENT at reasonable times with advance notice. SEC. 109 The rights and remedies of CLIENT provided for under this Section are in addition to any other rights and remedies provided by law or under other sections of this AGREEMENT. (092zon 2 Attachment 1 �0P�SEC. 110 The CONSULTANTs Services under this AGREEMENT shall be performed expeditiously and with the generally accepted professional skill and a level of care required for the orderly progress of the Services. SEC. 11 I The obligations and Services of subcontractors and subconsultants to the CONSULTANT shalt be undertaken and performed in a professional manner and in the interest of CLIENT, and the CONSULTANT shall remain fully responsible for the proper performance of all obligations and Services under this AGREEMENT, notwithstanding the fact that such performance may be undertaken in part by a subcontractor or subconsultant to the CONSULTANT. All subcontracts will incorporate in flill all appropriate conditions and terms as set forth in this AGREEMENT. SEC.112 The CONSULTANT shall assign David Hartwick as the Project Manager to manage the performanceoftheCONSULTANTsServices onthis project Should the Project Manager of the CONSULTANT be unable to complete his responsibility far any reason, the CONSULTANT shall replace him/her with a competent person subject to CLIENTS approval,which shall not be unreasonablywitltheld. PART II-RESPONSIBILITIES OF CLIENT SEC.201 CLIENT agrees that its officers, employees, and representatives will cooperate with CONSULTANT in the performance of its Services under this AGREEMENT and will be availableforconsultationwith CONSULTANT at reasonable times with advance notice so as to not conflictwith other responsibilities. SEC.202 The Services performed by CONSULTANT under this AGREEMENT shall be subject to periodic review by CLIENT and/or its General Manager, CEO or equivalent executive CLIENTS General Managermay delegate any arall ofthe General Manager's responsibilities underthis AGREEMENTto appropriatestaffmembers,and shall so inform CONSULTANT by written notice before the effective date of each delegation. SEC.203 To prevent an unreasonable delay in the CONSULTANTS work,the General Manegerwill endeavor to examine allreports and other documents and will render decisions and provide comments and advice to the CONSULTANT in a timely manner to avoid unreasonable delay. It is understood that the General Manager's decisions,comments and advice do not relieve CONSULTANT from the responsibilityfor the professional quality ofall work delivered and Services performed under this AGREEMENT. SEC 204 CLIENT shall, without charge, furnish to or make available for examination or use by CONSULTANT as it may request, any relevant data which CLIENT has available and pertains to the Services to be performed under this AGREEMENT,including as examples only and not as a limitation: copies of reports,plans,technical specifications,records,and information directly related to the Services. All such data furnished or otherwise made avaitableby CLIENT shall remain property of CLIENT The CONSULTANT,upon request, shall retum any original data provided byCLIENT. SEC.205 Upon written request by the CONSULTANT, CLIENT shall reasonably assist the CONSULTANT in obtaining data and documents from public officers or agencies and from 1osz2o� 3 Attachment 1 private citizens and business firms whenever CONSULTANT determines that such in necessary for the compluion of the Services covered by this AGREEMENT. SEC.206 The CONSULTANT will not be responsible foraccuracy of information or data supplied by CLIENTorothersources,but will use such data to the extentsuch information or data would be relied upon by reasonably prudentparty. PART III-SCOPE OF WORK SEC.301 The Servicesto be pmfmmedbythe CONSULTANT underthis AGREEMENTshall consist ofthe work described inExhibit"A"(Scope of Work)of this AGREEMENT. SEC.3 02 CLIENT may at any time,by written order,request changes within the general scope of this AGREEMENT and in the Services or work to be performed. A change order shall be in sufficient detail to clearly show the CONSULTANT the work to be done and to provide a basis for assessing any impact on contract cost or schedule. The CONSULTANT shall, within 10 calendar days from the date of receipt by the CONSULTANT of a change order, notify CLIENT in writing of any potentialimpact on contract cost or schedule,and shall provide CLIENT with its assessmentofthefeasrbilityofmakingthe change proposed. Ifthe CONSULTANT notifies CLIENT that the change is not feasible,the parties shall meet as soon as possible to review the proposed change. Following these discussions,CLIENT will either direct that the change proceed as stated in the original change order,issue a modified change order,or withdraw the change order. SEC.303 If an original change order or modified change order causes an increase or decrease in the CONSULTANT's cost or time required for performance of any services under this AGREEMENT,the parties shall meetto discuss the proposed change and the compensation adjustment to be made. An equitable adjustment shall be made in the compensation or schedule (or both), and this AGREEMENT shall be modified in writing accordingly. CLIENT shall thereafter issue a written change order implementing the changes in the Services or work to be performed. If CLIENT and the CONSULTANT are unable to agree on an equitable adjustment in price or schedule(or both)in connection with a change order, the matter in dispute shall be submitted to resolution in accordance with Section 621 of this AGREEMENT. CLIENT shall thereupon issue a change order implementingthe changes in the work and the CONSULTANT shall proceed with the Services, as changed, notwithstanding the pendency of such dispute; provided that the CONSULTANT's proceeding with the Services,as changed,shall not prejudice its position in the dispute resolution process. SEC.304 No Services forwhich any additional compensationwill be charged by the CONSULTANT shall be fumisbed withoutthe priorwritten authorizationof CLIENT. Oral change orders to this AGREEMENT shall not be permitted. SEC.305 The CONSULTANT's compensationas defined in Part IV ofthis Agreement,"Compensation and Terms of Payment", is the total compensation payable under the terms of this AGREEMENT. The CONSULTANT shall not provide services beyond the scope of this AGREEMENT unless those additional servicesand the compensation for those services have been defined in an approved change order or written amendment to this AGREEMENT. NM7l 4 Attevhment 1 PART IV-COMPENSATION AND TERMS OF PAYMENT SEC.401 For the Services described in Exhibit "A", Scope of Work, CLIENT agrees to pay the CONSULTANT based on the Fee Schedule,which is Exhibit"B".to this AGREEMENT, attached hereto and incorporatedas though set forth in full. The fees set forth in Exhibit`B" include all fees for time and labor for salaries,overhead,materials,equipment;licenses,and a "not tn-eaceed"amount for certain non-salary travel related and out of pocket expenses incurred by the CONSULTANT in the performance of the Services under this AGREEMENT, including all subcontractor or subconsuhant costs. Direct non-salary expenses incurred by the CONSULTANT for work done under this AGREEMENT eligible for reimbursementby CLIENT include: identifiabletravelexpenses such as air fare,car rental,meals,hotel,taxi fare and parking. CONSULTANTwiII not be reimbursed forstandard postage and local phone calls. Deliveries by Fedex,UPS,or similar services are reimbursable. CONSULTANT will not be reimbursed for items identified as direct non-salary expenses that are part of CONSULTANT's overhead. It is expressly understood that the work and Services described in Exhibit "A" will be completed by the CONSULTANT, except where otherwise stated, and it shall be the CONSULTANTS responsibilitym ensure that all Services are completed in accordance with the terms of this AGREEMENT. SEC.402 The CONSULTANT shall,as applicable,submitmonthlyreportstoCLIENTonthe first day of each month detailing activities for any Professional Services requested by CLIENT and performed by CONSULTANT during the preceding month. The report should itemize all fees,hours and costs and describe such in reasonable detail. Backup material should include copies of any invoices and support material for eligible reimbursements. SEC.403 CLIENT shall pay the invoiced amount within 30 calendar days after the date of receipt of any invoice,provided that the invoice is properly completednd documented SEC.404 CONSULTANT understands that funds that will be used to compensate CONSULTANT for the Servicesunderthis AGREEMENT are fiords provided by the United StatesDepartmemof Transportation{"USDOT')and CLIENT. Ifthe United States Department ofTransportation discontinuesfimding to CLIENT with respectto the Services provided underthis Agreement, this AGREEMEW may be terminated by CLIENT upon written notice to the CONSULTANT. If CLIENT terminates this AGREEMENT for lack of USDOT funding, such termination shall be treated as termination for convenience under Section 609 of this AGREEMENT. SEC.405 CLIENT may withhold or,on account ofsubsequently discovered evidence,nullify the whole or part of any payment made by CLIENT to the CONSULTANT to such extent as may be necessary to protect CLIENT from loss or damage,or to compensate CLIENT,caused by, resultingfrom or arising out of,including but not limited to,any failure to perform Services in accordance with this AGREEMENT. PART V-TEVIE OF PERFORMANCE SEC.501 NOTICE TO PROCEED roV2071 5 .. A �^O Attachment 1 The parties to this AGREEMENT understand and agree that execution ofthisARE by CLIENT is not a Notice-To-Proceed with the Scope of Work of this AG Notice-To-Proceed will be issued by CLIENT to the CONSULTANT after receipt and approval of all insurance certificates by CLIENT verifying compliance with the insurance requirements specified in Section 606 of this AGREEMENT. SEC_502 CONSULTANT shall commence the performance of Services under this AGREEMENT when CLIENT issues a Notice-to-Proceed,and the Scope of Work shall be completed by the CONSULTANT no laterthan five(5)years afterthe date oftheNotiae-to-Proceed,or the Ist day of-4M ember.2012 whichever is later. This date for completion may only be extended by written change order executed byCLIENT or by amendment to this AGREEMENT. PART VI- GENERAL PROVISIONS SEC.601 BOOKS AND RECORDS The CONSULTANT shall maintain all books,documents,papersAchnical specifications, accounting reports and otherevidencerelatingto the Services,and shall permitthe Secretary ofTransportation,the Comptrollerof the United States(or their authorized representatives), CLIENT(and its authorized representatives),access to and the right to inspect,audit and copy all such books,documents,papers,accounting reports,and other evidence awl reasonable times during the AGREEMENT period and for two(2)years from the date of final payment under this AGREEMENT. CLIENT(or its authorized representatives)may perform audits so as not to interfere with the timely processing of invoices. If an audit indicates that the CONSULTANT has been overpaid,that overpayment will be credited against future invoices. SEC.602 INDEMNIFICATION&HOLD HARMLESS The CONSULTANT agrees to protect, defend, indemnify and hold CLIENT, and its respective officers, employees, representatives, commission members and agents (mdividually,an"IndemnifiedParty"and,collectivety,the`IndemnifiedParties'l,and each of them, five and harmless from and against any and all losses, penalties, damages, settlements,costs,charges,professional fees or other expenses or liabilities of arising out of any and all claims,liens, demands,obligations,actions,proceedings or causes of action (hereinafter collectively"claims') to the extent arising out of the performance of the AGREEIvipV I'(including,without limitation,the Software License and Services Agreement) by the CONSULTANT. Without limiting the generality of the foregoing,any and all such claims(i) relating to personal injury, (ir) that the Services violate or infringe a patent, trademark,copyright,trade secret,nondisclosureor other intellectual property or proprietary right,(iii)that the use of the Services by an Indemnified Party violates or infringes a patent, trademark,copyright,trade secret,nondisclosure or other intellectual property or proprietary right, (iv) that the implementation of any recommendation of CONSULTANT by an Indemnified Parry violates or infringes a patent, trademark, copyright, bade secret, nondisclosure or other intellectual property or proprietary right,and(v)relatingto violation of any applicable statute,ordinance,administrative order,rule or regulation,or decree of any court,shall be included in the indemnity hereunder. to>uw� 6 Y Atfavhment 1 The CONSULTANT shall pay all costs necessaryto defend and shall protect,indemnify,and hold harmlessthe Indemnified Parties from any and all loss,damage,liability,attorneys fees, cost or other expense caused by the CONSULTANT, its employees,CONSULTANT's subcontractors,subconsulumt%associatesor agents to the extentarising out ofthe acts,ems or omissions of the CONSULTANT (or its associates, employees, subconsultants, subcontractors or other agents)while performing the Services under this AGREEMENT. No limitation of liability(including,without limitation,any cap on damages)contained in this Agreement or in the Software License and Services Agreement shall apply to this SEC 602. SEC.603 DISCLAIMER OF LIABILITY CLIENT will not hold harmless or indemnify the CONSULTANT (or its associates, employees,subconsultants,subcontractors or otheragents)foranyliabilitywhatsoeverexcept in the event of willful misconduct or gross negligence on the part of CLIENT SEC.604 CONSULTANT RESPONSIBILITY The CONSULTANT shall at all times maintain control over and have complete responsibility for all of the Services performed under this AGREEMENT. Any attempt by the CONSULTANT to assign or otherwise transferany interest in this AGREEMENT,without the written consent of CLIENT,which consent shall not be unreasonably withheld,shall be void. SEC.'605 SUBCONSULTANTS AND SUBCONTRACTORS The CONSULTANT shall submitto CLIENT,for review and documentationpurposes,a list of all subconsultantand subcontractorAGREEMENTS. A list of such agreements shall be included as Exhibit"D"to this AGREEMENT. The CONSULTANT will not enter into any agreement with any subcontractor or subconsultam not named in Exhibit "D" to this AGREEMENT, except with the prior written approval of CLIENT, which shall not be unreasonably withheld. SEC.606 INSURANCE The CONSULTANT,at its own expense,shall obtain and maintain,for the duration of the AGREEMENT,insurance against claims for injuries to persons or damages to property or other losses which may arise from or in connection with the performance of the work and Services hereunder by the CONSULTANT, or its agents, representatives, employees, subconsultants,or subcontractors of any tier. The CONSULTANT will provide CLIENT with certificates of insurance for coverage as listed below and endorsements,establishing coveragerequired bythis AGREEMENTwithin ten 1 calendar days after contract approval by CLIENT. The certificates of insurancefor each insurance policy are to be signed by a person authorized by that insurer The CONSULTANT will: toad 7 AttaChment 1 a. Maintain commercial general liability coverage at limits of no less than$ 00 combined single Limit per occurrence and $1,000,000 anneal aggregate 4� � injury(includiagdeath).personal injuryandpropertydamages. The coverages be on an"occurrence"basis only and not on a"claims made"basis;and the covered thirst be provided on ISO commercial liabilityor on ISO broad form comprehensive general liability forms with no exceptions to the coverage of bodily injury,personal injury,broad form property damages,premises operations,products and completed operations, contractual and independent contractors. CLIENT, its officers, employees, representatives,agents, members and volunteers must be expressly covered as additional insured. b. Maintain fortheduration ofthis AGREEMENT,automobile coverage at limits ofno less than $1,000,000 combined single limit"per accident"far bodily injury and property damage for all non-owned automobiles, hired automobiles and, if any, owned automobiles The coverage must include,but not be limited to claims for injuries to persons or damages to property which may arise from or in connection with the use of any auto in the performance of Services hereunder by the CONSULTANT, its agents, representatives, employees, subconsultants or subcontractorsof any tier. CLIENT,its officers,employees,representadves,agents, members and volunteers must be expressly covered as additional insured. C. Maintain professional liability insurance at limits of no less than $1,000,000 per occurrence and $1,000,000 annual aggregate to insure against claims for losses arising out of the services rendered by the CONSULTANT, its agents, representatives or employees pursuant to this AGREEMENT. "Claims made" insurance coverage will continue fora period of one year beyond the term of this AGREEMENT. Any retroactive date must coincide with or predate the date of this AGREEMENT and may not be advanced withoutCLIENT's consent. All deductibles and sel€instued retention provisions shall be fully disclosed in the certificate of insurance. No deductible or self-insured retention may exceed $100,000 without the written approval of CLIENT. If aggregate limits are imposed on bodily injury and property damage,then the amount of such limits must not be less than twice the amount ofthe limits required herein.All aggregates must be fully disclosedand the amount entered on the required certificateof insurance.Copies of any notices given to the CONSULTANT with respect to exhaustion of limits of insurance shall also be provided to CLIENT. The adequacy ofthe inmmoe supplied by the CONSULTANT, including the industry rating and financial health of each insurance company providing coverage,is subject to the approval o£L1ENT. d. CONSULTANT shall maintain worker's compensationinsurancefor its employees with policy limits of not less than the statutoryrequirements of the state where the CONSULTANT'S employees are employed. e. The CONSULTANTS insurance under (a) and (b) shall be primary as respects CLIENT,its officers,employees,representatives,agents,members,and volunteers. Any other coverage available to CLIENT,its officers,employees,representatives, agents,members,and volunteers shall be excess over the insurance required ofthe CONSULTANT. (asno� 8 #l�.J.arhmert 1 . The insurance requirements specified herein do not relieve the CONSUL n ,, responsibility or limitthe amount of its Iiabilityto CLIENT or otherpersons an e }/ CONSULTANT is encouraged to purchase such additional insurance as it deems u necessary. f. The insurance certificate(s)supplied by the CONSULTANT must provide for a 30- day notice to CLIENT before the implementation of any insurance coverage. cancellation.This notice requirement does not waive the insurance requirements contained herein. In addition,the CONSULTANT shailnotify CLIENT within 30 days of any reduction in coverage or limits. SEC.607 CONFLICTS OF INTEREST No employeeofficer,oragent ofCLIENTshall participatein the selection or in the award of administration of this AGREEMENT if a conflict of interest,real or apparent would be involved CLIENT's officers,employees,or agents shall neithersolicitnoracceptgratuities, favors or anythingofmonetaryvalue from contractors,potential contractors,subcontractors, subconsultants,or other parties to subagreements. SEC.608 FEDERAL CONDITIONS This project is funded in part by the Federal Transit Administration(FTA). Therefore,the Federal Conditions,as set forth in Exhibit"E"are applicable to this AGREEMENT. The CONSULTANT shall sign applicable attachments in Exhibit`7v". SEC.609 TERMINATION FOR CONVENIENCE a. The performance ofworkunder this AGREEMENT may beterminated byCLIENT in accordance with this Section in whole,or from time to time in part,whenever CLIENT determines that such termination is in the best interest of CLIENT. Any such termination shall be effected by delivery to the CONSULTANT a notice of termination specifying the extent to which performance of work under the AGREEMENT is terminated,and the date upon which such termination becomes effective. b. Upon receipt of termination,and except as otherwise directed by CLIENT, the CONSULTANT shall: (1)stop work under this AGREEMENT onthe date and to the extent specified in the notice of termination;(2) place no further orders or subcontracts for materials,services,or facilities,except as may be necessary for completion of such portion of the work under this AGREEMENT as is not terminated;(3)terminate all orders and subcontracts to the extent that they relate to the performance of work terminated by the notice of termination;(4) assign to CLIENT in the manner,at the times,and to the extent directed by CLIENT,all of the right,title,and interest of the CONSULTANT under the orders and subcontracts so terminated;(5) settle all outstanding liabilities and all claims arising out of such termination oforders and subcontracts,with the approval or ratification ofCLIENT, to the extent CLIENT may require,which approval or ratification shall be final for all the purposes of this Section;(6)transfer title to CLIENT and deliver in the manner, (o8=m 9 Attachment 1 at the times,and to the extent,if auy directed by CLIENT,supplies,equipment,and othermaterials produced as apart of or acquired in connection with the pe'--' lance- of nce of the work terminated, and any information and other propertywhich�# �/� AGREEMENT had been completed,would have been required to be fumislne (/�/M CLIENT,(T)complete any such part of thework as shall not have been terminated by the notice of termination;(8) and take such action as may be necessary,or as CLIENT may direct,for the protection or preservation of the property related to this AGREEMENT which is in the possession of this CONSULTANT and in which CLIENT has or may acquire an interest Payments by CLIENT to the CONSULTANT for amounts owed by CL18NTpursuantto this Agreement shall be made by the date of termination. In the event CLIENT terminates this AGREEMENT in whole during a renewal year as provided in subsection(a)of this Section, CLIENT shall be entitled to receive a prorated refund of any unearned License Fees and/or Application Hosting Fees. Except as otherwise provided, settlement of claims by the CONSULTANT or recoveries by CLIENT under this terminatDn for convenience clause shall be in accordance with the provisions set forth in 48 C.F.R.Part 49,as.amended from time to time. SEC.610 . TERMINATION BY MUTUAL AGREEMENT This AGREEMENT maybe terminated by mutual agreement ofthe parties. Suchtermmation shall be effective in accordance with a written agreement by the parties. Any other act of termination shall be in accordance with the termination by convenience or default provisions coined in Sections 609 and 611 and the cancellation clause in Section 612 of this AGREEMENT. SEC. 611 TERMINATION FOR DEFAULT a. Subject to the provisions of subsection(c)of this Section,CLIENT may,by 10-day advance written notice of defaultto the CONSULTANT,terminatethe whole or any part of this AGREEMENT upon the occurrence of any ofthe following events if not cured to CLIENT's reasonable satisfaction within such 10 day period: (1) If the CONSULTANT fails to provide the Services in the mama required by this AGREEMENT or in accordance with the performance standards articulated herein; (2) If the CONSULTANT fails to perform any of the provisions of this AGREEMENT in accordance with its terms;or (3) If the CONSULTANT fails to make progress in the prosecution of the work under this AGREEMENT so as to endanger such performance. b. In the event that CLIENT terminates this AGREEMENT in whole or in part as provided in subsection(a)of this Section,CLIENT may procure,upon such terms and in such manneras CLIENT may deem appropriate,supplies or services similerto those so terminated The CONSULTANT shall be liable to CLIENT for costs associated with the termination of this AGREEMENT, the procurement of replacement services by CLIENT, any excess costs of such similar supplies or M=7) 10 C 7-13 Attachment 1 services,and any increase in the hourly nate as a result of the re-procurement of services from the date of termination to the expiration date of the original AGREEMENT. The CONSULTANT shall continue the performance'of470�EEM AGRENT to the extent not terminated under provisionsof this Secti 1 C. Any settlementof claims by the CONSULTANT underthis termination Section shall be in accordancewith the provisions set forth in 48 CFR Part 49,as amended from time to time. SEC.612 CANCELLATION OF AGREEMENT In any of the following cases,CLIENT shall have the right to cancel this AGREEMENT withoutexpensetoCLIENT: (1)the CONSULTANT is guilty ofmisrepresentatioq(2)this AGREEMENT is obtained by fraud,collusion,conspiracypr other unlawful means;or(3) this AGREEMENT conflicts with any statutory or constitutional provision of the State of California or the United States of America This Section shall not be construed to limit CLIENTS right to terminate this AGREEMENT for convenience or defaultns provided in Sections 609 and 611,respectively SEC.613 INDEPENDENT CONTRACTOR The CONSULTANT represents that it is fully experienced and properlyqualified to perform the Services provided for herein,and that it is properly equipped,organized,and financed to perform such Services. The CONSULTANT shalt act as an independent contractorand not as the agent of CLIENT in performing the Services under this AGREEMENT. The CONSULTANT shall maintain complete control over its employees and all of its subcontractorsand subconsultants and shall be responsible for all acts,errors or omissions of its subcontractorsand subconsultantsand ofpersons either directlyor indirectly employed by them,as it is for the acts or omissions of persons directly employed by the CONSULTANT. Nothing contained in this AGREEMENT shall create any contractual relationship between CLIENT and any subcontractoror subconsultant,agent or employee ofthe CONSULTANT or create any obligation on the part of CLIENT to pay or be liable for the payment of any sums to any subcontractor,subconsultant,agent or employee of the CONSULTANT. SEC.614 ASSUMPTION OF RISK Any Servicesperformed by the CONSULTANTunderthis AGREEMENTshall beatthe sole risk and expense of the CONSULTANT,without regard to whether CLIENT conducts a prior review or approval of the Services to be provided. SEC.615 SUCCESSORS AND ASSIGNS Neither CLIENTnor the CONSULTANT shall assign,transfer,conveyor otherwise dispose of this AGREEMENT or its interest in orto the same,or any part thereof,without the prior written consent of the other party,which consent shall not be unreasonably withheld This AGREEMENT will be binding on any authorized successor or assign. SEC.616 COVENANT AGAINST CONTINGENT FEES 1D� I 1 � day Attakchment 1. The CONSULTANT warrants that no person or selling agency has been a nplcyed�m'�et$imted to solicit or secure this AGREEMENT based upon an agreement or understandrt tor /`-' commission, percentage, brokerage or contingent fee, excepting bona fide perm employees.For breach or violation ofthis warranty,CLIENT shall have the rightto terminate ((�� this AGREEMENT without liability or,inits discretion,to deduct from amounts otherwise owed to CONSULTANT or to otherwise recover the full amount of such commission, percentage,brokerage or contingent fee. SEC.617 GRATUITIES a. CLIENT may, by written notice to the CONSULTANT, terminate this AGREEMENT if it is found after notice and hearing by CLIENT that gratuities(in the form of cash,entertainment,gifts or otherwise)were offered or given by the CONSULTANT or any agent or representativeof the CONSULTANTto any officer or employeeof CLIENT with a view toward securing a contract or securing favorable treatment with respect to the awarding,amending,or making ofany determinations with respect to the performance of this AGREEMENT. b. In the event this AGREEMENT is terminated as provided for in this Section, CLIENT shall be entitled to pursue the same remedies against the CONSULTANT as it could pursue in the event of a breach of this AGREEMENT by the CONSULTANT. C. The rights and remedies&CLIENT provided in this section shall not be exclusive and are in addition to any other rights and remedies provided.by law or under any other provision of this AGREEMENT. SEC.618 SCOPE OF AGREEMENT This AGREEMENT shall include the provisions set forth herein and all exhibits hereto, including but not limited to the Software License and Services Agreement SEC.619 CERTIFICATION The individuals who have affixed their signatures below certify and attest each is empowered to execute this AGREEMENT and act on behalf of and bind the party in whose name this AGREEMENT is executed. SEC.620 OWNERSHIP OF DOCUMENTS A. All materials,information,products,work,documents,specifications,files,reports or other data or material,whether finished,unfinished or draft,developed,prepared, completed or acquired by the CONSULTANT for the Services to be perfortned under this AGREEMENT, including, without limitation, the original data, reports, correspondence,memoranda,specificarionsand drawings shall become the property of CLIENT and shall be delivered to CLIENTupon completion ortermination ofthis AGREEMENT,whichever occurs first: (MM7) 12 C 7-/s AttaLhment 1 B. Upon termination of this AGREEMENT, all finished or unfinished materiaL% products,work,documents,film specifications,reportsorother d eparedbyor for the CONSULTANT in connection with the Services p �'d �y AGREEMENT shall be submitted toCLIENT. C C. All Licensed Software and any proprietary data, including any enhancements developed by CONSULTANT, will be delivered pursuant to CONSULTANTs Software License and Services Agreementwiththe provision that notwithstanding the fact that some portion of the Licensed Software may be fust produced and/or modified in the course of the contract, the only rights granted in the Licensed Software are those in the Software License and Services Agreement A copy of the Software License and Services Ageement is provided in Exhibit"C'. D. The Software License and Services Agreement gives CLIENT the right to share access to and use of the CONSULTANT'S Services(including,without limitation, the PurchasePooling Solutions online application) to its officers, employees, representatives,agents,members and volunteers. Therightto share access to and use of the CONSULTANTs Services may not be f miished byCLIENTto any parties outside CLIENTS agency or organization without the express consent of CONSULTANT. SEC.621 DISPUTE RESOLUTION Any dispute arising between CLIENT and CONSULTANT relating to thisAGREEMENT shall be resolved in accordance with this Section. The parties shall attempt to resolve the dispute informally in meetings or communications between the CONSULTANT and CLIENT. Ifthe dispute remains unresolved 15 days after it first arises,the CONSULTANT may request CLIENTS General Manager or CEO to issue a recommended decision an the matter in dispute. CLI a4T`s General Manager or CEO shall issuethe recommended decision in writing and provide a copy to the CONSULTANT. The recommended decision of CLIENT's General Manager or CEO shall become final unless, within 15 days of receipt of such recommended decision,the CONSULTANT submits a written request for review to CLIENTS Board of Directors or other executive or advisory group having similar decision making capacity. In connection with any such review,the CONSULTANT and CLIENrs General Manager or CEO shall be afforded an opportunity to be heard and to offer evidence on the issues presented. Ifthe dispute remains unresolved after review by CLI NTs Board of Directors, the parties may, by mutual agreement, seek arbitration by an independent party. If the parties mutually agree to arbitration,the dispute shall be resolved in accordance with standard procedures of the American Arbitration Association. Ifthe parties do not agree to submit the dispute to arbitration,either party may seek judicial resolution of the dispute in any court of competent jurisdiction in San L Obispo County.California. Pending final resolution of a dispute under this Section,the CONSULTANT shall proceed diligentlywith performanceofthe Services in accordance with the CLIENT General Manager or CEO's recommended decision. SEC.622 APPLICABLE LAW toszza7 13 Attachment 1 California State law shall govern the interpretation of this AGREEMENT. The CONSULTANT shall also abide by all applicable City and County ordinances. SEC.623 JURISDICTION O�� The CONSULTANT, by entering into this AGREEMENT, consents and submits to the (!� jurisdiction of the courts of the State ofCalifornia over any action at law,suit in equity,or other proceeding arising out of or relating to the performance of this AGREEMENT. SEC.624 REMEDIES Any remedies that are availableto CLIENT under this AGREEMENT Mall be in addition to the remedies which may otherwise be available tcCLIENT at law or in equity. SEC.625 SEVERABILITY If any term,provision,covenantor condition of this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenforceable, all other terms,provisions, covenants and conditions of this AGREEMENT shall remain in full force and effect and shall in no way be affected,impaired,or invalidated. SEC.626 TITLES The titles or captions set forth in this AGREEMENT are far general reference and convenience only,do not in any way limit or amplify the terms and provisions hereof,and shall have no effect on its interpretation. SEC. 627 FORCE MAJEURE The CONSULTANT shall not be I iable for any failure to perform if acceptable evidence has been submitted to CLIENT that failure to perform the AGREEMENT was due to causes beyond the control and without the fault and negligence of the CONSULTANT and which could not have been avoided or prevented through due diligence and the use of reasonable efforts by the CONSULTANT. Example of such causes include acts of God, civil disturbances,fire,war,or floods,but does not include labor related incidents,such as strikes or work stoppages- SEC.628 NOTICE Any notice required to be given hereunder shall be deemed to have been given when received by the party to whom it is directed by personal service,hand delivery or U.S.Mail Return Receipt Requested at the following address: TO CLIENT: John Webster Transit Manager City of San Luis Obispo 919 Palm Street San Luis Obispo,CA 93401 107 14 C ��7 (805)781-7121 TO CONSULTANT: Graham C.Beacham,III Implicit PurchasePooling Solutions,L.P. 8080 North Central Expressway, Suite 1250 Dallas,Texas 75206 (214)891-7068 SEC. 629 WAIVER OF TERMS AND CONDITIONS The failure of CLIENT or the CONSULTANT to enforce one or more of the terms of this AGREEMENT or to exercise any of its rights or privileges hereunder, or the waiver by CLIENT of-any breach of such terns or conditions, shall not be construed as thereafter waiving any such terms,conditions,rights or privileges,and the same shall continue and remain in force and effect as if no waiver had occurred. SEC. 630 CONTRACT AMENDMENTS This AGREEMENT(and the Exhibits hereto)may only be amended or modified by written amendment agreed to and duly executed byCLIEAIT and the CONSULTANT. IN WITNESS WHEREOF,the parties have caused this AGREEMENT to be executed the day and year first written above. IMPLICIT PURCHASEPOOLING CITY OF SAN LUIS OBISPO,CALIFORNIA SOLUTIONS,L.P. BY: IMPLICIT SOLUTIONS,GP,LLC By: By: ham C.Beachum III Name: President Title: ATTEST: ATTEST: By: _ By: Name: Name: O Fes,�7 Title: Title: V NO'111RYKWC MMOFmW Aft7tmenf i MYCOMM.ERE 11.3 (OM07 15 l EXHIBIT A SCOPE OF WORK JOINT PROCUREMENT WEB BASED PROGRAM AGREEMENT (( ))/, Program Description: COOPERATIVE PROCUREMENT PILOT PROGRAM-HEAVY DUTY TRANSIT BUS POOL Cate of San Luis Obispo("CLIEIV7")is currently participating in the Federal Transit Administration's(FTA)Cooperative Procurement Pilot Program("CPPP"}as defined in Section 166 of Public Law No. 108-199 the Transportation,Treasury,and Independent Agencies Appropriations Act of 2004 and Section 167 of the Transportation,Treasury,and Independent Agencies Appropriations Act,2005. Pursuant to the Joint Procurement Web Based Program Agreement by and between Implicit PurchasePooling Solutions,L.P.("CONSULTANT")and CLIENT dated 2007(the"AGREEMENT'I to which this Exhibit"A"is attached and incorporated into,this Scope of Work identifies program and software application objectives,as well as various technical criteria and system features pertaining to the Internet-based software(the"Licensed Software")to be provided by CONSULTANT to support the CPPP as described below. In addition this Scope of Work sets forth certain responsibilities of CONSULTANT and CLIENT in connection with the AGREEMENT. Program Obiectives• The purpose of the CPPP is to'determine the benefits of encouraging cooperative procurement of major capital equipment under sections 5307,5309 and 5311 of FTA's authorizing legislation: Five pilot projects have been authorized by Congress and identified by the FTA for participation in the CPPP. CLIENT is an FTA-approved participant in a cooperative procurement pool being formed and supported by CONSULTANT pursuant to the CPPP. CLIENT is participating in the CPPP with other FTA-approved transit agencies for the primary purpose of purchasing heav duty transit buses. In addition to directing agencies to develop joint specifications and issue a joint Request for Proposal("RFP"),the CPPP directs the cooperating agencies,to the extent possible,to maximize the use of Intemet-based software technology in order to develop specifications,aggregate equipment requirements,create cooperative specifications,generate a joint RFP and automate the request for approved equals process. System Goals: • Provide a tool to efficiently manage multiple user technical and contractual information to encourage multiple user cooperation and aggregation in capital equipment procurement • To achieve procurement cost savings through cooperative purchasing,competitive pricing, equipment standardization,document standardization,and time and resource savings for participating purchasers and equipment manufacturers. Licensed Software Obiectivem • The Licensed Software provided by CONSULTANT shall be designed to generate a joint technical specification for capital equipment(i.e.transit buses)with a menu of individualized component selections or biddable options derived from multiple pool participants. The participants can either select a base equipment specification or enter alternative technical specifications for various components ofthe capital equipment (08=7) Page 1 of 3 Attae iment 7 • The Licensed Software shall allow online users to generate a joint RFP document incorporating commercial terms and conditions,FTA requirements,and technical specification requirements,while allowing insertion of individual agency specific terms conditions. The Licensed Software shall allow individual users to track and highligh changes or modifications to the base specification throughout the RFP process. • The Licensed Software shall be designed to develop a list of deviations,or variables,from the base specification that provides for the customized requirements of each user. Deviations from the base specification shall be transparent to all users. • The Licensed Software shall provide a tool to assist participants with the evaluation of vendor proposals and base price plus optional item comparisons by providing a template or formula to break out the price of base equipment and the price of biddable options to calculate the final price of the individually configured equipment with or without selected options. Technical Criteria' • The Licensed Software shall be accessed through an Internet website(portal)and shall be accessible for read,data entry,data modification,and data analysis by approved,licensed users. • The Licensed Software shall be hosted by CONSULTANT in a dedicated hosting environment located where the hosting site provides all hardware/sof vie and other technical infrastructure,ongoing maintenance and support No interaction with CLIENT's current information technology infrastructure will be required or permitted. • CONSULTANT shall maintain control of all files,records,technical specifications,RFP's and other documents and communications generated by CLIENT and other users on its secure servers in connection with the use of the Licensed Software pursuant to this scope of work. • The Licensed Software shall be designed to support a roles-based security model allowing assignment of access rights and permissions to be determined for individual users within the CLIENT organization. The Licensed Software shall also support a roles-based security model,as required,for RFP respondents,ie.vendors,suppliers and/or manufacturers. • The Licensed Software shall be intended to support additional future specification driven capital procurement projects involving detailed technical specifications and the development of a joint RFP and shall not be restricted to the current CPPP procurement or to the purchase of transit buses. • User training fur the Licensed Software shall be made available to CLIENT and include: system features,data entry,data manipulation,data evaluation,document creation,document editing,document distribution and document retention for CLIENT and other participating users. User help/support for CLIENT and other participating users shall be available via an online help feature and/or through telephone support provided by CONSULTANT during normal business hours. Responsibilities of Parties • CONSULTANT shall provide oversight of the pooled procurement by designating a qualified individual to act as the multi-participant Pool Advisor. The Pool Advisor (Own Page 2 of 3 C' 7-Z6 i Attachrn nt 9 shall function as the central contact and clearinghouse for all discussions,documents and decisions relating to the pooling process and the activities which result in the development and issuance of a joint RFP. For purposes of satisfying this requirement,CONSULTANT hereby names Jack Leary of JKL Solutions,Inc. Iff—MV1 as Pool Advisor. JKL is an independent consulting firm representing clieuP O/� interests within the public transportation industry providing public and private sector organizations with specialized services involving the operations,management and vuu construction of mass transit systems and facilities. • CONSULTANT and/or Pool Advisor shall host meetings as may be reasonably necessary to coordinate information,make decisions related to the procurement process and provide a central point of contact for the processing of data and delivery to and from prospective RFP respondents. • CONSULTANT and/or Pool Advisor shall chair an Advisory.Committee consisting of the General Manager,CEO,Procurement Officer or other official designee of CLIENT and which shall include similar representatives of other organizations or agencies participating in the pooled procurement. The Advisory Committee shall, among other things,endeavor to establish key dates and deadlines for the pooling process. CONSULTANT and/or Pool Advisor shall facilitate web services for the Advisory Committee collaboration process. • CONSULTANT and/or Pool Advisor shall create or input into the Licensed Software a base capital equipment specification to be used as the starting base specification by pool participants. CLIENT will have the option to either accept the base specifications or specify individualized component selections, biddable options and/or its own unique local terms and conditions. • CONSULTANT and/or Pool Advisor shall chair a Technical Committee which shall be organized to review and monitor the processing of the technical bus specifications, review questions from prospective bidders,coordinate responses and make technical modifications as may be necessary during the procurement process. CONSULTANT and/or Pool Advisor shall request CLIENT and all other pool members to designate a member of their equipment engineering or vehicle maintenance staff to the membership of the Technical Committee. • CONSULTANT and/or Pool Advisor shall facilitate through the Licensed Software the collaboration amongst the pool participants in regard to performance and technical issues to increase the collaborative value for each user participating in the pool. • CLIENT shall have the right to accept other than the lowest offer,reject any or all offers in part or in total for any reason,to accept any offer if considered best for its interest,and to waive informalities and minor irregularities in offers received. CLIENT may accept any item or group of items of any offer,unless the offeror qualifies the offer by specific limitations. Unless otherwise provided,Client shall have the right to make an award on any item for a unit quantity,less than the quantity offered at the unit prices offered unless the offeror specifies otherwise in the offer. town Page 3 of 3 e'7''Z1 r j � r1ltOC�'?ji ent i EXHIiBIT B FEE SCHEDULE City of San Luis Obispo The CLIENT shall be responsible for payment of the following fees pursuant to the JOINT PROCUREMENT WEB-BASED PROGRAM AGREEMENT(the"Agreement"): A. Software License Fee (/ A Software License Fee shall be due by CLIENT as compensation to CONSULTANT for the use of the Licensed Software. The Software License Fee,as applicable,shall be due and payable upon execution of the Agreement and"delivery of the Licensed Software by CONSULTANT to CLIENT. The total Software License Fee due by CLIENT shall be one percent(1%)of the total purchase price of all capital items purchased by CLIENT in connection with the use of the Licensed Software. The Software License Fee shall be calculated and paid as follows: 1. There shall be a minimum annual Software License Fee due'in the amount of$5,000.00 per year for the tern of the Agreement, which shall be payable in advance on the effective date of the Agreement and on each anniversary date of the Agreement thereafter so long as the agreement is in effect 2. CLIENT also agrees to pay an additional Software License Fee amount which,if applicable,shall be calculated as follows: one percent fI%) of the total purchase price of all capital items purchased by CLIENT in connection with the use of the Licensed Software less the total of any minimum annual Software License Fees paid by CLIENT pursuant to Section I above. The portion of the Software License Fee described in this section shall only be due and payable at the time a formal purchase order(or similar purchase authorization)is issued by CLIENT to a vendor in connection with the purchase of any capital pursuant to the use of the Licensed Software. 3. The Licensed Software shall provide the following capabilities: General Application: • Use of the Licensed Software • Individual users assign application access rights to their personnel • Bulletin board communication with other users and/or pool members • E-mail notifications of key milestone information to pool members. Technical Specification Development: • Pool members enter minimum and optional capital item quantity information • Pool members have access to a baseline technical specification • Pool members have viewing access to technical specifications of other participating pool members • The application allows for-editing of baseline specification to meet individual pool member needs or requirements • Pool members can create and incorporate a detailed list of Biddable Options into RFP • Individual pool members can view a comparison of their specification to the common specification of the pool,or the baseline specification. Request For Proposal(RFP)Production and Publishing: • Allows for input of local terms and conditions by each pool member P= Page 1 of 4 =hment 1 • Automatic production of a joint RFP with local requirements of pool members • Online publishing of a joint RFP,accessible by licensed vendors • RFP may be delivered via hard copy if necessary RFP Response: • Licensed vendors have online access to published RFP • Vendors can view common pool specifications as wells as individuaI agency specifications. • Vendors can submit online questions and clarification requests • Pool members respond online to vendor submitted questions • Vendors can submit their requests online for Approved Equals • Pool members approve(or decline)the Approved Equals requests • Vendors can input their RFP response online • Vendors respond with separate pricing for all Biddable Options • Complete transparency of vendor questions,Approved Equals requests and pool.member responses Bid Evaluation Tools: • Pool members can access and view online RFP responses from vendors • Pool members can view a Pricing Analysis Report comparing vendor pricing,,including pricing by each year in a multi-year procurement • Dynamic pricing capabilities where pool members can select Biddable Options and review the impact of selected options on total unit price and total overall procurement price. • Pool members can evaluate proposals by defining the criteria and assigning weights to the criteria to be evaluated. Based on the scores input, the application will then automatically.calculate the weighted scores for each vendor Bid Selection and Award: • After pool members have reviewed and evaluated the proposals submitted by vendors, pool members may select the vendor which is determined to be in the best interest of the pool member for the contract award. The application provides a report showing the selected vendor, their scorecard result, unit quantities, unit pricing, and total pricing by year,if applicable_ • Pool members shall contract individually with vendors as applicable and will use best efforts to expediently award contracts in accordance with their own usual, unique and specific procurement practices for final adoption. B Application Setup and Professional Services Fees 1. CLIENT shall be entitled to purchase and receive on an"as needed"basis professional consulting services provided by CONSULTANT or CONSULTANT's qualified designee. These services may include data analysis, development, preparation, conversion and/or input of CLIENT's commercial terms and conditions,technical specifications,deviations, local terms and conditions, textual revisions and other information and data necessary to be entered into the Licensed Software pursuant to the development of a joint request for proposal under the Agreement 2. CLIENT shall be entitled to receive version protection updates, upgrades,fixes and repairs,new releases or versions of the Licensed Software,including updated documentation, at such time as CONSULTANT makes such updates,upgrades and new releases or versions generally available to its customers within the specified time frame of the Software License and Services Agreement lam Page 2 of 4 AttaChment 1 3. CLIENT shall be entitled to receive initial application setup and introductory training for the Licensed Software, including training manuals. The initialsetup and training shall be delivered via telephone,email or other automated processes such as Webex. Technical support is generally available Monday through Friday during normal business hours at CONSULTANTS generaJtD published telephone number or designated email address. CLIENT agrees to CONSULTANT as compensation for application setup and introductory training (as describO above)an amount equal to 52,500.00 in advance on the effective date of the Agreement Upon request by CLIENT, application setup and training may also be delivered on-site at CLIENT's designated location if scheduled in advance by CLIENT at a rate of$150 per hour, including CONSULTANT's travel time. Related travel expenses will be the responsibility of the CLIENT, subject to state or federal standardized terms. C. Anniication Hostine Services 1. CONSULTANT shall host the Licensed Software and all of CLIENT's data pertaining to the subject procurement on CONSULTANT's secure Internet servers.. 2. Hosted information shall include,but isnot necessarily limited to. • Individual CLIENT member technical specifications • Participating pool member technical specifications • Joint RFP with CLIENT and participating pool member requirements • List of vendor questions • CLIENT and participating pool member responses to vendor questions • CLIENT and pool member online communications • Approved Equals requests from vendors • Individual CLIENT and pool member list of Approved Equals • Detailed list of Biddable Options • Vendor RFP responses • Vendor responses to Biddable Options • Pricing Analysis by vendor • Vendor scorecard • Vendor Summary Report 3. CLIENT shall be entitled to access the Licensed Software at all times while the Software License and Services Agreement remains in effect CONSULTANT uses multiple providers for full redundancy of connectivity to its servers and ensures Hospital Grade Power Supply on multiple power grids. CONSULTANT provides a managed firewall to ensue: security of site and application data. CONSULTANT's state-of-the-art data center is located in Dallas,'Texas and utilizes card key entrance and video surveillance. 4. CLIENT agrees to pay to CONSULTANT as compensation for Application Hosting Services an amount equal to 52500.00 per year in advance on the effective date of the Agreement and on each anniversary date of the Agreement thereafter. D. Reimbursable Ezoenses CLIENT shall be responsible to reimburse CONSULTANT for documented necessary travel and out of pocket expenses to CLIENT's location, including airfare, ground transportation, panting, fuel, hotel, and meals. Expenses under this category shall be pre-authorized by CLIENT in writing and shall be invoiced monthly,as applicable,by CONSULTANT. E Additional Hoorly Services (08MM Page 3 of 4 ^2:1 4 Attachment 1 If CLIENT in its sole discretion determines that any additional professional services are needed, an additional fee will be charged by CONSULTANT based on a set hourly rate of$150.00 with,a not-to- exceed amount specified in writing by CLIENT. Such Additional Hourly Services shk 0 approved in writing by CLIENT and invoiced by CONSULTANT on a monthly basis services are rendered. CLIENT shall be under no obligation whatsoever to purchase any Additional Hourly Services. F. Manuals and Documentation A User Manual for the Licensed Software shall to be provided to CLIENT free of charge by CONSULTANT. Manuals and documentation shall be delivered electronically. G. Deferred Fees. CLIENT shall not be obligated to pay any of the fees described in sections"A", "B"and "C"above until such time as a Request for Proposal (RFP) as described in section "A-3" above has been produced and published by pool members in connection with the activities involving the joint procurement of heavy duty transit buses as contemplated by this Agreement. This provision does not constitute a waiver of any fees whatsoever but rather sets forth the conditions under which the payment of certain fees may be deferred by CLIENT. The remainder of this page has been left blank intentionally (Nam Page 4 of 4 C -25 E)=BrrC Attachment I SOIi'rwma LICENSE AND SERVICES AGREEMENT , This Software License and Services Agreement(the"License Agreement")is made effe,ctiue as�� of the Effective Date, by and between Implicit PurchasePooling Solutions, L.P., a Texas limited partnership, with a principal place of business at 8080 North Central Expressway, Suite 1250, Dallas, Texas 75206-1881 ("Implicit"), and City of San Luis Obispo ("Client") (each being referred to individually as a"Party"and collectively as the"Parties"). ER CURLS WHEREAS, Implicit and Client are parties to a Joint Procurement Web Based Program Agreement dated ,2007(the"Joint Procurement—Web Based Program Agreement'j. WHEREAS,Implicit has the licensing rights to certain PurchasePooling Solutions software and on-line software-related services. WHEREAS, Implicit desires to provide to Client(as defined in Section 1.4 of this Agreement), and Client desires to obtain from Implicit, such software and on-line software-related services, in accordance with the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the terms and conditions of this Agreement,the Joint Procurement— Web Based Program Agreement,and other good and valuable consideration,the receipt and sufficiency of which are acknowledged,Implicit and Client, intending to be legally bound,agree as follows: TERMS 1. Definitions. The following definitions apply for purposes of this Agreement 1.1 "Business Day" means any of Monday through Friday, other than holidays observed by Implicit 12 "Business Hour"means any hour between 8:00 am.and 5:00 p.m.Central Time during Business Days. 13 "Confidential Information" means (a) confidential or proprietary information that is either marked as such or, given the nature of the information or circumstances surrounding its disclosure, ought reasonably to be understood to be confidential or proprietary information of the Disclosing Party,and(b)with respect to Implicit as the Disclosing Party,the Licensed Materials. 1.4 "Client" means, individually or collectively, City of Sam Luis Obispo which is/are further defined in Exhibit A under the heading"Client hrformation"),and which is/are participating as partner agencies in the Federal Transit Administration's Cooperative Procurement Pilot Program, as defined in Section 166 of Public Law No. 108-109, the Transportation, Treasury, and Independent Agencies Appropriations Act of 2004. 13 "Client Administrator"means the technical administrator as designated by the Client in Exhibit A under the heading"Client Administrator." c08 Page 1 of 13 / l \l% Attachment 1 1.6 "Client Data" means all data originated by or for Client, and transmitted�by� Client to Implicit as part of Client's permitted use of the On-Line Services. 0 O 1.7 "Consent" means the prior, express, and written concern of a Party, which consent may be withheld in such Party's sole discretion. 1.8 "Disclosing Party"is defined in Section 7.1 1.9 "Effective Date" means the date upon which Implicit receives payment from Client. 1.10 "Excluded Support" means any the items or services that are not expressly described in Sections 5.1 through 5.4. 1.1 I "Initial Term"is defined in Section 10.1. 1.12 "Licensed Materials"means any and all software made available by Implicit to Client in order for Client to use, access, or receive the On-Line Services and any and all published specifications for such software. 1.13 "Licensed Software"is defined in Section 3.1. 1.14 "Losses" means any and all claims, damages, losses, deficiencies, liabilities, penalties,charges,costs,and expenses,including reasonable attorney's fees. 1.15 �On-Line Services"means the services that are as described in Exhibit B under the heading"On-Line Services." 1.16 "Receiving Party"is defined in Section 7.1. 1.17 "Renewal Term"is defined in Section 10.1. 1.18 "Support"means the support services described in Sections 5.I through 5.4. 1.19 "Term"means the Initial Term and any Renewal Term(s). 120 "User ID"means a unique identifier assigned by Implicit. . 121 "User Password"means the password associated with a User ID. 2. On-Line Services. 2.1 ScoW— Implicit shall provide the On-Line Services via the Internet to Client 22 User IN and User Passwords. (a) Client shall not access or use the On-Line Services without a valid User ID and a valid User Password. Implicit shall issue Client unique User ID's and User Passwords as necessary to allow for multiple CIient users of the On-Line Services. Client's employees shall use their assigned User ID's when accessing and/or using the On-Line Services. (03=7) Page 2 of 13 C 7-z 7 Attachment 1 (b) CIient shall be responsible for(i)maintaining the strict confidentiality of the User IDs and the User Passwords consistent with its obligations under Section 7 of this IAg�emen% (n) instructing Client's employees not to allow use of any User ID or any User Password that expressly permitted,(iii)any and all Losses that may be incurred or suffered as a result of the failure Client to maintain the strict confidentiality of a User ID or a User Passwords, and (iv) immediately informing Implicit verbally, and promptly informing Implicit in writing, (A) of any need to deactivate a User ID due to security concerns,(B)of any known or suspected misuse of a User ID or a User Password, or(C)of any loss or theft of a User ID or the deactivation of any User ID. (c) Implicit shall not be liable for any harm,loss,or liability related to(i)the theft of User IDs or User Passwords(unless such theft is a result of Implicit's negligence)or(ii)Client or any of its personnel,(A)misusing,or failing to use,a User ID or User Password,or(B)disclosure of any User ID or User Password that violates Section 7 of this Agreement. (d) If(i) Client informs Implicit of a breach of security in connection with one or more User IDs,(ii)Implicit reasonably believes that such a breach has occurred or is threatened,or (iii)Cl ient or its personnel misuse any User ID or User Password,then,in each such event,Implicit may, without liability, immediately suspend providing the On-Line Services and Support until such breach, threat,or misuse is cured to Implicit's reasonable satisfaction. 2.3 Connectivity. Client shall obtain,and be responsible for maintaining,its Internet access and connectivity conforming to Implicit's then-current specifications reasonably necessary to receive access to, and use ofi the On-Line Services. Implicit will not provide Client with computers or dial-up access for the purpose of accessing the Internet 2.4 Internet Delays. Implicit shall not be responsible for delays in file delivery or other services between the On-Line Services and Client's computers due to Internet availability, performance,or access that is beyond the control of implicit 2.5 . On-Line Services Interruptions. Client agrees and understands that the On-Line Services are provided by Implicit on a best efforts basis and that axasional interruptions in the Online Services may occur. Subject to the previous sentence, Implicit shall use commercially reasonable best efforts to make the On-Line Services available during the Term. 3. Licenses. 3.1 Licensed Software. For any and all.proprietary software and/or third-party software contained in, or used or accessed in connection with, the Licensed Materials (the "Licensed Software% Implicit grants to Client a non-exclusive and non-transfemble license to use or access (as applicable) such Licensed Software, but only in connection with the authorized use of the On-Line Services and in accordance with this Agreement 3:2 Limitations: Client (including its personnel and all other persons under its control)shall not disassemble,decompile,reverse engineer, download, copy, disclose,,sell, assign, lend, lease,license,sublicense,or otherwise transfer or provide the On-Line Services or the Licensed Materials or any component ofi right in, or access to,the On-Line Services or the Licensed Materials to any other person or entity for any purpose,except as expressly provided in this Agreement 33 Use. Client shall use the On-Lime Services and the Licensed Materials only for the processing of its respective internal businesses. Client shall not(a)permit any third-party(including (Nno7) Page 3 of 13 C�-z� Attachment I any contractors thereof)to use the Licensed Materials or(b)use the Licensed Materials in thec p ration of a service bureau,application service provider,or commercial timesharing service. 4. Ownership. �vJ 4.1 Licensed Materials. Except for the licenses granted to Client pursuant to Section Implicit and the applicable third-party licensors (a) own all right, title, and interest in and to the Licensed Material or (b) have licensing rights to such Licensed Materials. All rights in and to the Licensed Materials not expressly granted to Client in this Agreement shall remain in Implicit and the applicable third-party licensors. 4.2 Client Data. (a) Client owns the Client Data. The Client Data is deemed to be Confidential Information. Implicit.may use the Client Data only for purposes of providing the On-Line Services to Client in connection with this Agreement. Without limiting Implicit's obligations under Section 7 of this Agreement,Implicit shall use reasonable efforts to restrict access to the Client Data to Client and its personnel who have a need to know. In the event the On-Line Services specifically require Implicit to maintain the Client Data,Implicit shall maintain the Client Data in accordance with Implicit's then-current back-up and archiving practices; OTHERWISE, IMPLICIT ISNOT RESPONSIBLE FOR MAINTAINING ANY CLIENT DATA- (b) ATA(b) IN NO EVENT SHALL IMPLICIT BE RESPONSIBLE OR OTHERWISE LIABLE FOR ANY THIRD-PARTY'S UNAUTHORIZED ACCESS TO THE CMT DATA, UNLESS SUCH UNAUTHORIZED ACCESS IS THE RESULT OF IMPLICIT'S NEGLIGENCE OR OTHER VIOLATION OF SECTION 7 OF THIS AGREEMENT. 5. Support. Implicit shall provide the following Support to Client during the Term: 5.1 Help Desk Implicit shall be available during Business Hours to answer questions from,and provide general advice to,the Client Administrator concerning the On-Line Services and the Licensed Software. 5.2 Error Corrections. Implicit shall use commercially reasonable best efforts to correct a material failure of the Licensed Software to substantially perform in accordance with the then- current published specifications for the Licensed Software. 5.3 Maintenance and Su2Rgr—L During the Term of this Agreement,as requested by Client Administrator,Implicit shall provide Client technical maintenance and support,including,without limitation the maintenance and support services set forth in the Scope of Work attached as Exhibit A to the Joint Procurement—Web Based Program Agreement. 5.4 Improvements During the Term of this Agreement, Implicit shall provide to Client any and all improvements, modifications, revisions, or updates to the Licensed Software that Implicit may make with respect to the Licensed Software. 6. Compensation. 6.I On-Line Services and Support The compensation payable by Clientfor the On- Line Services and Support is set forth in the Joint Procurement—Web Based Program Agreement. CD&M7 Page 4 of 13 I AttaC went 1 6.2 Excluded Support Client shall compensate Implicit far any Excluded Support that Implicit provides..at Client's request at Implicit's then-current time and materials rat" reasonable expenses,provided however,that nothing in this A exp g gmement requires Implicit to provide a y� c, n ,� Excluded Support. On or before the fifth day of each month following a month in which Implicit 1 / provides Excluded Support, Implicit shall deliver an invoice to Client for all Excluded Support that UUU Implicit provided at Client's request during such previous month. Client shall pay to Implicit the amount set forth in such invoice within 30 days following Client's receipt of such invoice. 63 Past Due Amounts. All past due amounts owed by Client shall bear interest until paid in full at the rate of 15%per month. 7. Confidentiality. 7.1 Use and Disclosure. Without the Consent of a party disclosing Confidential Information (the "Disclosing Party") or as otherwise provided in this Agreement, the party receiving such Confidential Information (the "Receiving Party") shall never disclose, copy, or use any Confidential Information of the Disclosing Party in any manner other than by disclosing such Confidential Information: (a) To an employee of the Receiving Party who has a need to know such Confidential Information as contemplated by this Agreement;or (b) As required to be disclosed by operation of law, provided that the Receiving Party has promptly notified the Disclosing Party of any legal process requiring production of such Confidential Information prior to compliance with such process and has taken all reasonable precautions,including seeking a protective order if so requested by(and at the expense of)the Disclosing Party,to insure confidential treatment of arty Confidential Information.so disclosed. 7.2 Decree of Can. The Receiving Party shall treat the Disclosing Party's Confidential Information with the same degree of care as the Receiving Party accords to the Receiving Party's own Confidential Information,but in no case less than reasonable care. 73 Notification. The Receiving Party shall promptly advise the Disclosing Party if the Receiving Party learns of any unauthorized use or disclosure of the Disclosing Party's Confidential Information. 7.4 Exclusions. Except for information that is required by law to remain confidential, Confidential Information of the Disclosing Party does not include information or materials that are (a) publicly available without violation of this Agreement or any other obligation of confidentiality, (b) already known by the Receiving Party without any obligation of confidentiality, (c) independently developed by the Receiving Party without any use'of, or reference to, the Disclosing Party's Confidential Information, or(d) subsequently disclosed to the Receiving Party by a third-party without restriction and the disclosure by the third-party does not violate any obligation of confidentiality. 73 Ownership. Unless otherwise provided in this Agreement,the Disclosing Party shall continue to own all of the Disclosing Party's Confidential Information. 7.6 Return. The Receiving Party shall promptly return to the Disclosing Party,at the Disclosing Party's sole cost and expense, all Confidential Information of the Disclosing Party upon the (082207) Page 5 of 13 7. 30 Attachment 1 earlier to occur of(a) a written request by the Disclosing Party or(b)termination of thisAgre��z- 7.7 f, any reason by any Party. �o Equitable Remedies. A breach of this Section 7 by the Receiving Party may cause irreparable harm and injury to the Disclosing Party for which money damages are inadequate. In the event of such breach,the Disclosing Party shall be entitled to seek injunctive relief,in addition to all other available remedies. 7.8 Suspension. If Client breaches or threatens to breach this Section 7. Implicit may, without liability, immediately suspend providing the On-Line Services and Support until such breach or threatened breach is cured to Implicit's reasonable satisfaction. 8. Indemnification The indemnification provisions contained in the Joint Procurement— Web Based Program Agreement: including, without limitation, Sections 602 and 603 of the Joint Procurement—Web Based Program Agreement,shall apply to this Agreement. 9. Warranties.Disclaimers and Limitations. 9.1 warranties. Implicit warrants and represents that(a)it has full title to and/or the right to license the Licensed Materials,Licensed Software and On-Lime Services,and that Client's use of them in accordance with this Agreement will not infringe upon the patent, copyright,trademark,trade secret or other intellectual property or proprietary rights of any third party; (b)the Licensed Materials, Licensed Software and On-Line Services will perform substantially in accordance with the specifications set forth in Exhibit B to this Agreement;and(c)the Licensed Materials,Licensed Software and On-Line Services do not and will not contain any intentional feature which would in anyway impair or damage the operation of the Licensed Materials,Licensed Software or On-Line Services andlor any of Client's other software, other data and/or hardware, including without limitation (i)software locks, drop dead devices, back doors,time bombs,or other software routines which may disable a computer program automatically with the passage of time or under the positive control of a person other than Client, or(ii) any form of virus, a Trojan horse, worn or other software routineor hardware component which may (y) permit unauthorized access or(z)disable,erose or otherwise harm software,hardware or data 92 Disclaimers. EXCEPT AS PROVIDED IN SECTION 9.1 OF THIS AGREEMENT, IMPLICIT MAKES NO WARRANTIES, 'EITHER EXPRESS OR IMPLIED, WRITTEN OR VERBAL. EXCEPT AS PROVIDED IN SECTION 9.1 OF THIS AGREEMENT, IMPLICIT DISCLAIMS TEE IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE,AND NON-INFRINGEMENT. EXCEPT AS PROVIDED IN SECTION 9.1 OF THIS AGREEMENT, THE ON-LINE SERVICES AND THE LICENSED MATERIALS ARE PROVIDED "AS IS," "WHERE IS," AND "WITH ALL FAULTS." IMPLICIT DOES NOT WARRANT THAT THE OPERATION OF THE ON-LINE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. 93 Limitations. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANYONE ELSE ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT FOR INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9.4 Benefit of Bar again. THE 1XVHTATIONS IN THIS SECTION 9 REPRESENT THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN THE roszzor3 Page 6 of 13 1 Attachment i PRICING UNDER THIS AGREEMENT AND ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. r v ©p 10. Term and Termination. 10.1erm. This Agreement shall commence on the Effective Dateandshall remain in force for a period of rve_ years from the Effective Date("Initial Term"),unless earlier terminated as permitted herein. Upon the expiration of the Initial Term, the Agreement shall be automatically . renewed on an annual basis(`Renewal Term")for each year thereafter, unless either Party has notified the other Party in writing at least 60 days prior to the end of the Initial Term or then-current Renewal Term, as applicable, of the non-renewal of this Agreement. This Agreement is subject to termination pursuant to Section 10.2. 102 Termination. (a) Sections 609 through 612 of the Joint Procurement — Web Based Program Agreement shall also apply to this Agreement (b) If the Joint Procurement—Web Based Program Agreement expires or is terminated or canceled for any reason,this Agreement shall also terminate. I0.3 Effect of Termination. Upon termination of this Agreement, (a) Client shall immediately discontinue use of the On-Line Services, the Licensed Materials, and Support and (b) all licenses granted to Client pursuant to this Agreement shall terminate immediately and without further notice. Termination of the licenses granted in Section 3 shall be in addition to, and not in lieu of, any legal or equitable remedy available to Implicit 11. Miscellaneous. 11.1 Force M ieure. Neither Party shall be in default of this Agreement by reason of any failure of its performance under this Agreement if such failure results,whether directly or indirectly, from a cause beyond its reasonable control, including any (a) international, federal, state, or local law, statute,or regulation,(b)act of God,(c)war or terrorism,(d)civil disturbance,(e)act of any government, or(f)failure of any third-party. 11.2 Amendments This Agreement may be changed, waived, or discharged only pursuant to a written agreement between the Parties. 11.3 Binding Effect This Agreement shall be binding upon, inure to the benefit of, and be enforceable by,the Parties and their respective successors and permitted assigns. 11.4 Counterparts. This Agreement may be executed simultaneously in one or more counterparts,each of which gall be deemed an original but all of which together shall constitute one and the same instrument. Faxed copies of manually executed signature pages to this Agreement are fully binding and enforceable without the need for delivery of the original manually executed signature page. 11.5 Severability. If any provision of this Agreement is held to be illegal,invalid,or unenforceable under present or future laws, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid,or unenforceable provision never comprised a part of this Agreement; and the remaining provisions of this Agreement shall remain in full force and cD822M Page 7 of 13 AttachlilEflt effect and shall not be affected by the illegal,invalid,or unenforceable provision or by its severance nn this Agreement. Furthermore, in lieu of such illegal, invalid,or unenforceable provision,there s1r 1 beJ n added automatically as part of this Agreement a provision as similar in its terms to such illegal,invalid,or unenforceable provision as may be possible and be legal,valid,and enforceable. 11.6 Notices. (a) Any notices or communications to be given under this Agreement by either Party to the other Party shall be deemed to have been duly given if given in writing and (i) personally delivered, (ii) sent by nationally recognized overnight courier, (iii) sent by facsimile (with electronic confirmation), or(iv)sent by mail, certified,postage prepaid with return receipt requested, in each case,at the address for such other Party set forth below: (i) If to Implicit,addressed to: Implicit PurehasePooling Solutions, . L.P., 8080 North Central Expressway, Suite 1250, Dallas, Texas 75206-1881, Attention: Graham C. Beachum III,Facsimile:214891-8122;and (ii) If to Client, addressed to the contact information set forth in Exhibit A under the heading"Client Information." (b) Notices delivered personally,by courier, or by facsimile shall be deemed communicated as of actual receipt. Mailed notices shall be deemed communicated as of 10:00 am.on the third business day after mailing. Any Party may change such Party's address for notice under this Agreement by giving five days, prior written notice to the other Party of such change in the manner provided in this Section 11.6. 11.7 Dispute Resolution. The Dispute Resolution procedures set forth in Section 621 of the Joint Procurement—Web Based Program Agreement also apply to this Agreement. 11.8 F4luitable Remedies. Notwithstanding the provisions for arbitration in this Agreement, either Party may proceed to any state or federal courts in California having competent jurisdiction, for the purpose of obtaining equitable relief; including, but not limited to temporary restraining orders,temporary injunctions,and/or specific performance. 11.9 Continuity During-Dispute. In the event there is a dispute between Client and Implicit,Implicit shall continue to perform the On-Line Services described in Section 2. 11.10 Choice of Law. This Agreement shall be governed by, and construed and enforced in accordance with,the laws of the state of California(without.regard to such state's conflicts of laws rules). Venue of any action relating to, or arising out of, this Agreement that is not otherwise subject to arbitration shall lie exclusively in the courts located in Cali ornia. 11.11 Costs. Each Party shall pay all of such Party's own expenses relating to the negotiation and preparation of this Agreement,including the fees and expenses of such Party's counsel. 11.12 Party Beneficiaries. This Agreement does not create, and shall not be construed as creating,any right enforceable by anyone not a Party. (07) Page 8 of 13 Attachment 7 I 1.13 Assignment Client may not assign or sublicense this Agreement(or/deh;gate Clients rights,duties,or obligations under this Agreement)without Implicit's written agreemA ch shall not be unreasonably withheld. � 11.14 Entire Aereement This Agreement(including the exhibit(s)to this Agreement) U\ and any master or similar agreement entered into by Implicit and Client that expressly incorporates this Agreement by reference(a)embody the entire agreement and understanding between the Parties relating to the subject matter of this Agreement and(b)supersede all prior agreements and understandings relating to the subject matter of this Agreement 11.15 Interpretation. In the interpretation of this Agreement, except where the context otherwise requires, (a)"including"or"include"does not denote or imply any limitation,(b)"or"has the inclusive meaning "and/or," (c) "and/or" means "or" and is used for emphasis only, (d) 'V refers to United States dollars, (e)the singular includes the plural, and vice versa, and each gender includes each other gender, (f)captions or headings are only for reference and are not to be considered in interpreting this Agreement, (g) "Section" refers to a section of this Agreement, unless otherwise stated in this Agreement,and(h)all references to times are times in Central Time. 11.16 No Waiver. The waiver or failure of a Party to exercise in any respect any right provided for under this Agreement shall not be deemed a waiver of any further right under this Agreement by such Party. 11.17 Survival. This Section I I and Sections 1. 4 6 7 8 4 and 10 shall survive termination of this Agreement [Balance of page intentionally blank] (0822071 Page 9 of 13 i j r IN WITNESS WHEREOF,this Agreement is entered into by the Parties to be effective on the Effective Date. EMUCH PURCHASEPOOLING CITY OF SAN LUIS OBISPO SOLUTIONS,LP By: Implicit Solutions GP,LLC By: Name: Title: By: RAHAM C BEACHUM ID,PRESIDENT ATTEST ATTEST: By: By; MCMUAM NOMPt>>1ddC SMOFTM Attachment 1 C�Op� (08o7) Page 10 of 13 C � PNnhi ent 1 Exhibit A Terms and Conditions 1. Payment Terms QC) O The compensation payable to Implicit for the On-Line Services and Support for this Agreement is set forth in the Joint Procurement-Web Based Program Agreement entered into by Implicit and City of San Luis Obisuo that expressly incorporates this Agreement by reference. 2. Client Information. Client's information is: (a) Name: City of San Luis Obispo("Client") (b) Address: 919 Palm Sheet San Luis Obispo,CA 93401 (c) Send notices to the attention of: John Webster (d) Fax number. (805)781-7109 3. Client Administrator. The Client Administrator's contact information is: (a) Name: John Webster,Transit Manager (b) Phone number. (805)78I-7121 (c) Email address: jwebster@slocity.org (082207) PAGE A-1 A-11alchm2nt 1 Exhibit B On-Line Services PurchasePoo6nE Solutions Software Product Capabilities for use by Transit Arencies in�e Acquisition of Transit Buses Traasitpool.com is a browser based web-application that manages "the process" of pooling multiple transit agencies for the acquisition of transit buses. This is done via an internet software application and a service that: 1: Facilitates through web-based services the collaboration amongst the transit agency members of the pool in regard to performance and technical issues to increase the collaborative value add for each agency participating in the pool; 2. Provides for input of an online base specification to be used or modified by pool members; 3. Publishes a list of deviations (variables) that provides for the customized requirements of each agency, 4. Facilitates agency collaboration with manufacturers to provide feedback on specifications and requirements; 5. Facilitates"pre-RFP"conference caIls amongst pool members and/or transit bus manufacturers; 6. Provides web-based services for the collaboration process to define the weighting factors for the evaluation criteria to be included in the RFP; 7. Aggregates and creates an acceptable standard RFP package for transit agencies to issue to manufacturers in accordance with their own approval, notification, and other local terms, conditions and requirements; 8. Facilitates and supports all aspects of online collaboration and discussions amongst agencies and between agencies and manufacturers regarding. a. Requests for clarifications, changes, approved equals, and permitted exceptions to the RFP; b. Amendments to the RFP; c. Providing software assistance to transit agencies in reviewing technical proposals for conformance with the specifications; d. Facilitating communications with manufacturers to resolve questions, identify proposal deficiencies,and minimize any variaiions from the pooling concept; e. Supporting the preparation of a request for best and final offers (BAFO)for agencies to issue to manufacturers;and E Providing software tools to be used by transit agencies in evaluating proposals and awarding contracts. (usz2tn) � ��37 Attachment 4. And providing, at transit agency's request, technical assistance for explanations and recommendations regarding: a. The pooled procurement process; �� G p� b. Base specification,individual agency specification,and deviations(variations); PurchasePooling Solutions is currently delivered via www,bmmtpool.com, as an internet portal procurement application that utilizes a proprietary software engine to aggregate technical vehicle specifications, local/regional laws, Iocal requirements, pricing/cost matrices, and commercial terms and conditions,as well as many other requirements associated with transit vehicle procurement The basis of the software solution is multiple members(transit authorities)using the portal as a template to input their vehicle requirements. A `pool"begins by selecting the type of vehicle the authorities desire to procure. The portal application provides a common interface for the gathering of each agency's unique and customized requirements. Once pool specifications are established,the application engine applies several algorithms and database queries to generate various matrices that allow for the comparison of each agency's individual requirements and specifications to that of the base specification of the pool. This comparison allows for the pool members to see the common needs of their agency versus other pool members as well as the common needs of the group as a whole. The application guides the members through not only the creation of their online specification, but provides the framework for interactive collaboration as the authorities evaluate the various matrices. The web-based application delivers a joint RFP with biddable options derived from multiple agencies entering individual specifications into the web-based technology. The software has the unique and proprietary ability to recognize the preferences of each participating agency and realize their unique requirements throughout the process. The web-based program also provides the bid evaluation pricing matrix to calculate multiple bus specifications and equipment configurations for price comparisons and final cost. The online access will allow the pool administrator to designate permission and"role based" security access. The functionality of this application is divided into separate areas based on the "roles" the users have been assigned. Those roles are: I. Admin User—These user; perform administrative tasks such as creating users, activating and closing pools,editing users,creating and inputting the base vehicle specification,which is used as a starting point for the pool specification. 2. Super Admin User — Maintains the Standard Bus Procurement Guideline document in the application, creates and edits Admin Users; and performs all the functions that an Admin User can. This user cannot be deleted. 3. Agency User (active pool) -Regular User that belongs to a pool. These users participate by entering their preferences via the technical specifications forms,text revisions entries,and custom entries. Agency Users also have the ability to utilize software tools to evaluate option pricing and to evaluate proposals based on established,weighted criteria 4. Vendor User(active pool)—This is a limited access"role based"user and would not be able to access the specification building process. This user may be provided access to the application in order to create the data necessary to support the bid evaluation functionality, and to create any approved equals requests or other requests for clarification. (082207) 1 J Attachment 1 EJMIT D LIST OF SUBCONSULTANTS •p� I i AttaehMent 1 EXHIBIT E FEDERAL CONDITIONS-GENERAL City of San Luis Obispo Op1. FEDERAL CONDITIONS It is a requirement of the Federal Government that activities financed,in part,with Federal funds and performed by a third party contractorand its subcontractorson behalfof a Federal grantee must be carried out in accordance with Federal requirements. Actividesperforned resultingfrom the original contractto this and any other prior or subsequent contract amendments thereto are financed,in part,by a grant from the United States Department of Transportation (DOT),eithertheFederal TransitAdministration(FTA)orthe federal Highway Administration(FHWAJ and are therefore subject to the applicable grant terms,conditions,and regulations. Accordingly,anycontractorand its subcontractorsperforming activities underthis contract must adhere to the Federal regulations stated herein as a condition of satisfactory performance. All subcontracts and subcontractorsemployed as a result ofthis contract are subject to the same editions and regulations as set forth herein unless specifically exempted. The prime contractor shall ensure that its subcontractors at all tiers are made aware of and comply with these Federal regulations. The prime contractor will be held liable for compliance failures by its subcontractors. Failure to comply will render the prime contractor responsible for damages and/orontracttermination. NOTE to distributors,dealers,and manufach=representativesresponding to this solicitation in lien of the manufacturer they represent: Certificationscontained herein shall be separately prepared and signed by the BIDDER/PROPOSER and THE MANUFACTURER. One set of certifications must be prepared and signed by the bidder/proposer, and one set of certifications must be prepared and signed by the manufacturer the bidder/proposer represents.It is the bidders/proposenresponsibilityto obtain the prepared and signed certificationsfrom the manufacturer and include them in the bid/proposal.Bids/proposals failing to include both sets of prepared and signed certifications will be rejected as being nonresponsive. 2. BUY AMERICA (Applicable to bids/proposals$100,000 or more) The Buy America requirement provides that Federal funds may not be obligated for mass transportation projects unless steel,cement,and manufactured products,as defined by the U.S.Federal Government, used in such projects are produced in the United States. As a condition of respo ess the bidder must submit as part of its bid a completed"Buy America Certificate"in accordance with 49 U.S.C. Section 532 0)and with 49 CFR Part 66I.6. The submission of a.false certification is a criminal act and in violation of 18 U.S. Code 1001. Therefore,arty Contractor who submits a written response to this procurement solicitation must certify,and submit either the compliance or the non-compliance"Bury AmericaCertifrcate"attached hereto.Failure to submitthis certificationwill renderthe bidders/proposers entire submission non-responsive and thereby disqualified. A bidder/proposer who seeks to establish I �-7 Hent grounds foran exception to this requirementmustfollow the procedure in thesection entitled"Exceptions. 3. DISADVANTAGED BUSINESS ENTERPRISE PROGRAM A. INSTRUCTIONS TO BIDDERS Q� 1. General—City of San Luis Obispo recipient of federal financial assistance from the Federal Transit Adm inistration(FTA)and the Federal Highway Administration(FHWA),is committed to and has adopted a Disadvantaged Business Enterprise(DBE)Program in accordance with 49 C.F.R.Part 26,issued by the U.S.Department of Transportation(DOT). It is the policy of City of San.Luis Obispo to ensure nondiscrimination in the award and administration of U.S. DOT-assisted contracts and to create a level playing field on which Disadvantaged Business Enterprises(DBEs)can compete fairly for contracts and subcontracts relating to City.of San Luis Obisno's construction, services, supplies, equipment and professional servicelconsultantactivities. To this end,City of San Lois Obispo has developed procedures to remove barriers to DBE participation in the bidding and award process and to assist DBEs to develop and compete successfully outside of the DBE program. In connection with the performance of this contract,the Contractor will cooperate with City of San Luis Obispo in meeting these commitments and objectives. 2. DBE Goal - For a bid/proposal to be determined responsive, a bidder/proposer must demonstrate that it can meet the percentage indicated in the Special Provisions: DBE Participation Goal in the performanceofthis contract,or ifitcannot,that it performed sufficient good faith efinrts to meetthis goal.A bidder/proposerwho is not responsiveshall be ineligible for award of cartract. The DBE goal remains in effect throughout the term of the contract. 3. Eli ibilityofDBEs-InordertoinsurethatfirmsparticipatingasDBE'sonFederallyfunded contracts are owned and controlled by socially and economically disadvantaged individuals, City of San Luis Obispo requires firms to be certified by certification procedures in compliance with Department ofTransportationguidelines. Only those DBE firm- scertifiedby this agency are eligible to be counted towards DBE goals in this ontract. City of San Lois Obispo requires that any DBEs listed by bidders or proposers for participation .in the contract be certified as eligible DBEs as of the time of bid opening/proposal dosing date. City of San Lois Obispo is available to assist potential contractors in ascertaining their DBE status. 4. Verification Regarding DBEs Form a. Assurance-All bidders/proposers shall certify in their bid/proposal on the Verification Regarding DBE's form their intent to meet or exceed the established goal or demonstrate good faith efforts to meet the goal. b. Certificate Copies-Bidders/proposers are also required to submit detailed information regarding intended participation by DBE's firms on the Verification Regarding DBE's form. Ifthe bidder/proposer is a certifiedDBE,a copy oftheirDBE certifcationor if the bidder/proposeris subcontiactingwith certifiedDBEs,a copy oftheirDBE certification(s) must be included. 5. Good Faith Effortscr When the DBE goal cannot be met,the bidder/proposer must document and 2 Attachment 1 submit justification statingwhy the goal could not be met and demonstiatinggood faith efforts taken to meetthe DBE goal in theirbid/groposal. Such good faith efforts shall be in compliance with 49 C.F.R Part 26,Appendix A.(available upon request). Failure to document on the Verification Form 1)certified DBEs which meet i O� targeted goal, H' any, or 2) failure to document good faith efforts, will render a" g � bid/proposal non-responsive. 6. CpuntingDBE Participation TowardSDBEG0alParticipation Towards DBE Goals-DBE participation shall be counted toward meeting the DBE goal in accordance with 49 C.FIL Part 26,Section 26.55. (available upon request). 7. Definition -Disadvantaged Business Enterprise or DBE means a for-profit small business concern- a. That is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged or,in the case of a corporation,in which 51 percent of the stock is owned by one or more such individuals; and b. Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it Small business concern means,with respect to firms seeking to participate as DBEs in DOT-assisted contracts,a small business concern as defined pursuant to Section 3 of the Small Business Act and SmallBusinessAdministration regulations implementing it(13 C.F.R part 121) that also does not exceed the cap on average annual gross receipts specified in 49 CF.R,Section 26.65(b). Socially and economicallydisadvantaged individual means any individual who is a citizen (or lawfully admitted permanent resident)of the United States and who is a. Any individual who a recipient finds to be a socially and economically disadvantaged individual on a case-by-case basis. b. Any individual in the following groups,members of which are rebuttablypresumed to be socially and economically disadvantaged: I. `Black.Americans,"which includes persons having origins in any of the Black racial groups of Africa; 2. "Hispanic Americans," which includes persons of Mexican, Puerto Rican Cuban,Dominican,Central or South American,or other Spanish o=Portuguese culture or origin,regardless of race; 3. 'Native Americans," which includes persons who are American Indians, Eskimos,Aleuts,or Native Hawaiians; 4. "Asian-Pacific Americans,"which includes persons whose origins are from Japan China,Taiwan,Korea,Buena(Myamnar),Vietnam,Laos,Cambodia (Kampuchea),Thailand,Malaysia,lndonesia,the Philippines,Brunei,Samoa, Guam,the U.S.Trust Territories ofthe Pacific Islands(Republic ofPalan),the Comm onwealth ofthe Northern Marianas Islands,Macao,Fiji,Tonga,Kiibati, Juvalu,Nauru,Federated States of Micronesia,or Hong Kong, 5. "Subcontinent Asian Americans,"which includes persons whose origins are from India,Pakistan, Bangladesh,Bhutan;the Maldives Islands,Nepal or Sri Lanka; 6. Women; 7. Any additional groups whose members are designated as socially and 3 (�` � Aft Chment 1 economicallydisadvantaged by the SBA,at such time as the S_BIA­ ation becomes effective. O B. CONTRACT PROVMONS Special Provisions: . 1. DBE Participation Goal—City of San Luis Obispo has established a goal of DA of the contract amountfor the utilizationoffirms owned and controlled by socially and economically disadvantaged persons. This goal remains in effect throughout the term of the contract General Provisions: 1. DBE Obliggfon- Pursuant to49 C.F.R.Part 26.13,the Contractor is required to make the following assurance in its agreement with City of San Luis Obispo and to include this assurance in any agreements it makes with subcontractors in the performance of this contract: The Contractoror Subcontractorshall not discriminateon the basis of race,color,national origin,or sex in the performanceofthis contract. The Contractorshall carry out applicable requirements of49 C.F.R.Part 26 in the award and administration of U.S.DOT-assisted contracts. Additionally,all of the requirements described in,City of San Luis Obispo's Disadvantaged Business Enterprise Program,(available upon request)shall be met.A contract that has a specific DBE participation goal is included in the Special Provisions above. 2. Compliance- Failure by the Contractoror Subcontractorto carry out these requirements is a material breach ofthis contract,which may result in the termination of this contractor such other remedy,as City of San Luis Obispo deems appropriate(see section f.) 3. Inclusion ofDBE Requirements-The Special Provisions and General Provisions 1.and 2.must be included in every subcontract,so that such provisions shall be binding upon each subcontractor, regular dealer,manufacturer,consultant,or service agency. 4. Replacement/Substitutions of DBEs a. lie Contractor is required to have a valid arrangementwith the DBE(s)designated to fulfill the contract goal. DBE participants have been identified'in the Contractor's bid documents. b. The Contractor may not terminate for convesiene a,DBE subcontractor listed in thebid and then perform the work ofthe terminated subcontractwith its own forces orthoseofan affiliate, without the prior written consent ofGity of San Lais Obisoa 4 �� 4✓ O IAY Q V O. a cA+ � � u c = pm. dm0 ` c wi :5-w= ° mr R m men g a= C e� C r !. is 1— C m q 0 ti 6 e ca a Yto � n v L a6iy a 9 u Z fC1 4 0 o'Ots 3ae R uu n 9 CA �i d C O u LL O F O C O V(a u a r e c E C e g �° `°, �CC o Y ° aap � a m c o o'; a5a u Qaa c 7 E O G' cc = Cm u 0. G m O t C 7 E _E M . e i � W s m y 5 a C C L � V .O •+ m rL�R z � a � Ea aaIm QCs n I« 4 « ° a W C Q V d eon c� ao p a > C V L a m oamw r m b z eon q w eU °e E � c a 3 c m w.�; < IL eC u c m `c aCr��C�`° R w -g a y = ar N wl a U d m d E C = y= SIC a � � T R a L _ � RRun 3Rae: m e u R a e. E a 0 a .. :: z LIZ o e o L °a=EQ I a C u ti o C o O o � vi c rel Eu9a$ tgey O t a o m, = zuE o e ECL m Eu cc q L IE-aS M ea, aq a N CLF] Ps ti = G U o a � gmey uee L ... G p o a E `J a M I. E= R Lo, CC U mZ z W m C y ', tai L L .rL aa .R. 3 a ' vo 2 z � g e Sb robE m 3 G Z Cs7o � Od e ' O � EQam nrm o m .o. U L a e m �,!C E Oa dLoDu m Lopp °U o. 0G 9OO�Cp uO RCm� Ca to a- w O a E n m o Lo o U �Q m $ Ct< a 7— C�Op� c. When a DBE subcontractor is tenninated,or fails to complete its work on the contract for any reason,the Contractor is required to make good faith efforts to find anotherDBE subcontractor to substitute for the originalDBE. These good faith efforts shall be directed at finding another DBE to perform at least the same amount of work under the contract as the DBE that was terminated,to the extent needed to meet the contract goal. d. If the Contractor or a non-DBE firm performs the work originally committed to a DBE,the Contractor shall submit a revised work plan to City of San Luis Obispo detailing how the DBE goal will be met If the Contractorfails to meet the goal or to make good faith efforts to meet the goal,sanctions may be applied against the Contractor. 5. Reporting Requirements•The Contractorshall provide all information and reports required by City of San Luis Obispo and shall permit access to its books, records, accounts, other sources of information and its facilities as may be determined brCity of San Lais Obispo to be pertinent to ascertain compliance with the regulations or directives. Monthly reports ofDBE payments to DBE firms shall be submittedto City of San Luis Obispo on the DBE Contract Compliance Form with each invoice for payment submitted for the life of the contract Invoices will not be processed for approval unless the report is attached. 6. Monitorinizand Enforcement-Contractorsare required to make good faith effortstv meetthe DBE goal of the contract with DBEs that are certified. The DBE fines must perform a commercially useful function in order to be counted towards the goal. Firms who fail to meet the goal must demonstrate that they have exerted good faith efforts to meet the goal. The definition of "commerciaflyuseful function"and"good faith efforts"shall,in the discretion of City of San Luis Obispo meet criteria set forth by the Department of Transportation under 49 C. Part 26. Failure by the Contractor to comply with its DBE contractual obligations shall constitute a substantial breach of the contract If City of San Luis Obispo determines that the Contractor is in breach of the conhact,it shall give the Contractor thirty(30)days notice to comply.Should the Contractorfail to cure the breach,City of San Luis Obispo may term inatethe contract,or withhold all applicable payments from the Contractor,and may enforce the contract and sue to collect any damages resulting from the Contractors breach. The foregoing is in addition to any other remedies authorized by law. 4. RESTRICTIONS ON LOBBYING (Applicable to bids/proposals$100,000 or more) Section 319 of Public Law 101-121 generally prohibits using Federally appropriated fiords to pay for influencingFederal governmentofficials in connection with specific grants and contracts. Lobbying is not prohibited. Using Federally appropriated funds to pay for lobbying is prohibited. .Section 319 also requires that each person who requests or receivesa Federal contract,grant,cooperative agreement,loan,or a Federal commitmentto insure or guarantee a loan must disclose lobbying. In addition,any recipient of a sub-grant,contract,or subcontract exceeding$100,000 is required to certify compliance and submit disclosure forms if appropriate. 6 ��-mss e rev s t m C C d OI A�eo � O � cEEE ' aCAU a co yp 3 '� E m e utL E c r E o E `ae u; 4 r mC604 m a d S !. ra F < CO Z '� Q •• yg E ` e `b W Z o u ✓ VH H H H H H H H 6s of y .FI � Q 102 Q �7U V A.OF � "O x q w aa. F H H H H H H H H fA V V Z .2 .7 O D L Uj z�o R1 F' PD U _ � o LQ jrmrn Q fYi Q, a .'W U tb a c� .^. C U U w OAt G O a x a m a 0. yWi IS O O U .7 O O, a Z O I]) The term"recipient"is defined in the law to include all contractors and subcontractors at any tier o recipient of fundsreceived in connection with a Federal contract,grant,loan,or cooperative agreement. Manufhaturersortheir authorized sales representativeofvehiclesand related equipment are thus included Therefore,any Contractorwho submits a written response to this procurement solicitation must certify and submit the"Certification Regarding Lobbying'bn page FC-19. Failure to submit this Certification will render the Contractor's entire submission nonresponsive and thereby disqualified. 5. DEBARMENT AND SUSPENSION (Applicable to bids/proposals$100,000 or more) The terms of the U.S. Department of Transportation regulation, "Suspension and Debarment of Participants in DOT Financial AssistanceProgiams,"49 CFR Part 29,are applicebleto any agreement or contract resulting from this procurement solicitation. Therefore,any Contractor who submits a written response to this procurement solicitation must sign and submit with the response the "Certificate Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion— Lower Tier Covered Transactions"on page FC-20. Failure to submit this Certificate will render the Contractor's entire submission non-responsive and thereby disqualified. In addition,any contractorentering into a contractor agreementwith City of San Luis Obispo resulting from this solicitationand who subsequently anticipates entering into any subcontractexceeding$100,000 associated with this solicitation shall require the prospective subcontractor(s)to sign and submit the Certificate mentioned immediately above to City of San- Luis Obispo prior to executing the . subcontract(s).The subcontract(s)shall not be executed until after City of San Luis Obispo has given the prime contractorwritten notice to do so. This procedure is necessary to establish to the satisfaction ofd of San Luis OhEm that a potential subcontractor has notbeen debarred or suspended. 6. PROTEST PROCEDURES I. CITY OF.SAN LOS OBISPO PROTEST PROCEDURES Procurement protest procedures of City of San Luis Obispo are published elsewhere in this solicitation. These are the procedures to follow regarding a proteSto this procurement solicitation. 2. FEDERAL TRANSIT ADMIMSTRATION PROTEST PROCEDURES The Federal TmnsitAdministration(FTA)may entertain a protestonly ifthe protest allegesthat_City of San Luis Obispo failed to have or follow written protest procedures.Such a protestmust be filed, in accordance with FTA Circular 4220.ID,as updated,with the FTA not later than five(5)working days after City of San Luis Obispo renders a final protestdecision,orfrve(5)working days after the protestor knows or has reason to know that City of San Luis Obispo has failed to render a final decision. Under the following conditions, City of San Luis Obispo may proceed with the procurement in spite of a pending protest: (I) The items described to be procured are urgently required;(2)Delivery or performancewill be unduly delayed by failureto make the award promptly; or,(3)Failure to make prompt award will otherwise cause undue harm to City of San Luis Obispo or the Federal Government. 8 Mtachmenf' 7. EMPLOYEE PROTECTIONS 0O D The requiremeatsof the clauses in 29 C.F.R.Section 5:5(b)or the immediatelyfollowingsubsections - 4)of this RepuestFor Proposal are applicable to any contract resulting from this solicitationsubject to the overtime provisions of the contractwork hours and Safety Standards Act andnot to any of the other statutes cited in 29 C.F.R.Section 5.1. The Contractor and subcontractor;shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period ofrs•from the completion ofthe contactforall laborers and mechanics,including guards and watchmen,working on the contract Such records shall contain the name and address of each such employee,social security number,correct classifications,hourly rates'of wages paid,daily and weekly number of hours wormed, deductions made,and actual wages paid. The records to be maintained under this clause shall be made available by the Contractor and subcontractors for inspection,copying,or transcription by authorized representatives of the FTA or FHWA as applicable,the U.S.DOT,or the Department Labor,and the Contactor and subcontractors will permit such representatives to interview employees during working hours on the job. 1. Overtime Requirements No Contractor or subcontractors contracting for any part ofthe contract work which may require or involve the employmentof laborersor mechanics shall require orpermit any such laborer ormechanic in any work week in which he or she is employed on such work to work in excess of forty hours in such work week unless such laborer or mechanic receives compensationat arate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hams in such work week. 2. Violation.•Liability for Unpaid Wages:Liquidated Damages In the event of any violation of the requirements of 29 C.F.R.Section 5.5(b)(1),the Contractor and any subcontractors responsible therefore shall be liable for the unpaid wages. lir addition, such Contractor and subcontractors shall be liable to the United States(in the case of work done under contact for the District of Columbia or a territory,to such district or to such territory)for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic,including watchmen and guards,employedin violation of29 C.F.R.Section 5.5(b)(1)in the sum ofU f).00 for each calendar day on which such individual was required or permittedto work in excess of the standard work week of fortyhours withoutpay hent ofthe overtime wages required by 29 C.F.R.Section 55(b)(1). 3. Withholdingof f Un iid Wages and Liquidated Damages The Federal Transit Administration or the Federal Highway Administration or City of San Luis Obispo shall upon its own action or upon written request of an authorized representative of the DepartmentofLaborwithhold or cause to be withheld from any moneys payable on accountof work performed by the Contractor,or any subcontractors under any such contract or any other federal contractwith the same prime Contractoror any otherfederally-assisted contract subject to the contract work hours and safety standards act which is held by the same prime Contractor,such sums as maybe determined to be necessary to satisfy any liabilities of such Contractor or subcontractors for unpaid wages and liquidated damages as provided in the clause set forth at 29 CF-RSection 5.5(b)(2). 4. Subcontracts 9 Attachmeint 1 The Contractor and subcontractors shall insert in any subcontracts the clauses set "Employee Protections" section of this Contract or Agreement and also a clause requ' subcontractors to include these clauses in any lower tier subcontracts.The prime ContractorshalI be (J responsible for compliance by subcontractors orlowertiersubcontractorwiththe clausesset forth in the"Employee Protections"section of this Contract or Agreement. & CLEAN AIR(AIR QUALITY) The Contractor,by respondingto this solicitation,acknowledgesthat any beilities or equipment acquired, constructed,manufactured,or improved for which the Contractor is responsible as a part of any project resulting from a contract or agreement with City of San Luis Obispo may be subject to the following Environmental Protection Agency(EPA)regulations,among others: (1)"Control of Air Pollution from Motor Vehicles and Motor Vehicle Engines;"40 CYR Part 85; (2)"Control ofAir Pollution from New and In-Use Motor Vehicles and New and In-Use Motor Vehicle Engines: Certification and Test Procedures,"40 C.F.R.Part 86;and(3)"Fuel Economy of Motor Vehicles,"40 C.F.R.Part 600. 9. ACCESS REQUIR YRNTS FOR INDIVIDUALS WITH DISABILmES The ccmractorselected as a result of this solicitationshall complywith all applicable requirementsof the Americans with Disabilities Act of 1990(ADA),42 U.S.C. Sections 12101 gl se�C; Section 504 of the Rehabilitation Act of 1973, as amended,29 U.S.C. Section 794;49 U.S.C. Section 5301(d);and the following regulationsand any amendments thereto: I. U.S.DOT regulations,"Transportation Services for Individualswith Disabifities(ADA),"49 CYR Part 37; 2. U.S. DOT regulations,"Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance,"49 CYR Part 27; 3. U.S. DOT regulations, "Americans With Disabilities(ADA) Accessibility Specifications for Transportation Vehicles,"49 CYR Part 38; 4. Department oflustice(DOJ)regulations,"Nondiscriminationonthe Basis ofDisability in State and Local Government Services,"28 C.FR.Part 35; 5. DOJ regulations,'Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,"28 CYR Part 36; 6. U.S.GSA regulations,"Accommodations forthe Physically Handicepped,"41 CYR Subpart 101-19; 7. U.S.Equal EmploymentOpporumity Commission,"Regulations to Implemeatthe Equal Employment Provisions of the Americans with Disabilities Act,"29 C.F.R.Part 160; 8. U.S. Federal Communications Commission regulations,Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled,"47 CYR Part 64, Subpart F;and 9. FTA regulations,"Transportation for Elderlyand Handicapped Persons,"49 C.FR Part 609. 10. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 The Contractor selected as a result of this solicitation shall comply,and assure the compliance by its subcontractors under this project,with all requirements of Title VI of the Civil Rights Act of 1964,as 10 Artachment 1 amended, 42 U.S.C. Section 2000d; 49 U.S.C. Section 5332; and U.S. DOT regulakibns Nondiw mmationmFedmUrAssistedProgramsoftheDepartmentof ronspor=on—E$'ecbt` kegD Title VI of the Civil Rights Act,"49 CFR Part 21. �j 11. TEEM PARTY CONTRACT DISPUTES OR BREACHES ((// The federal govemmenthas a vested interest in the settlementof any dispute,default,or breach involving any federally-assisted third party contract. Therefore City of San Luis Obispo shall pursue all legal rights available under any third party contract involvingFTA orFHWA funds.The federal governmentreserves the right to concur in any compromiseor settlement of any claim by City of San Luis Obispo involving any third party contract Accordingly,City of San Luis Obispo shall notify the federal government of any current or prospective major disputes,breach,or litigation pertaining to any contract resulting from this solicitation. Prior to seeking to name the federal governmentas aparty to any type of litigation for any reason involving said contract,City of San Luis Obispo will first inform the federal government before doing so. 12. ENERGY CONSERVATION The contractorselected as a resultof this solicitationshall complywith mandatorystandards and policies relating to energy efficiency that are contained in applicable State energy conservation plans issued in compliance with the Energy Policy and Conservation Act,42 U.S.C.,Sections 6321 et seq. 13. CARGO PREFERENCE:USE OF UNITED STATES-FLAG VESSELS As required by 46 CXJL Part 381,the contractor selected as a result of this solicitation agrees: I. To utilize privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage(computed separately for dry bulk carvers,dry cargo liners,and tankers)involved, whenevershipping any equipment,materials,or commoditiespursQantto this contractto the extent such vessels are available at fair and reasonable rates forUnited Sb t&flag commercial vessels. 2. To famish within 20 days followingthe date of loading for shipments originatingwithin the United States,or within 30 working days following the date of lading for shipment originating outside the United States,a legible copyof a rated,"on-board"commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph (1) above to the recipient(through the prime contractor in case of subcontractorbills-of-lading)and to the Division of National Cargo,Office of MarketDevelopment,MaritimeAdministration,400 Seventh Stre4 SM,Washington,D.C.20590, marked with appropriate identification of the project 3. To insert the substance of the provisions of this clause in all subcontracts issued pursuant to this contract 14. EQUAL EMPLOYMENT OPPORTUNITY The contractor selected as a result of this solicitation may not discriminate against any employee or applicant for employment because of race, color, creed, sex, disability,age, or national origin.The contrnctoragreesto take affrrmativeaction to ensure that applicants are employed,and that employees are II Attachment ? treated during employment,without regard to their race,color,creed,-sex,disability,age,ar�tionai origin. Such action shall include,but not be limited to,the following:emplcymem,upgradin ` r�hon� or transfer,recruitment or recruitment advertising,layoff or termination;rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor shall insert the foregoing provision in all subcontracts, except subcontracts for standard commercial supplies, raw materials,or construction. 15. FALSE OR FRAUDULENT STATEMENTS&CLAIMS By executing any contract resulting from this solicitation,the contractoracknowledgesthat if it makes a false,fictitious,or fraudulent claim, statement,submission,or certification,the Federal Government reserves the right to impose penalties under the Program Fraud Civil Remedies Act of 1986. 16. RIGHTS IN DATA&COPYRIGHTS The contractor selected as a result of this solicitation agrees that, as applicable, the use of any data produced or delivered under the termsofsaid contract,including,but not limited to,engineering drawings and associated lists,specification;process sheets,and technical reports,shall be governed by provisions of 49 C.F.R. '1834. In addition,the contractoragrees that it will not publish such data without the written consent of City of San Lois Obisgg and,if appropriate,the Federal Government. 17. NO FEDERAL GOVERNMENT OBLIGATIONS Although any contractresultingfiom this solicitation shall be funded with Federal grant funds,absentthe Federal Government's express written consent, the Federal Government shall not be subject to any obligations or liabilities to the contractor,or any other person other than City of San Luis Obisu in connectionwith the performance of the contract Notwithstandingany concurrence that maybe provided by the Federal Government in or approval of any solicitation or contract,the Federal Government has no obligations or liabilities to any party,including the contractor. I& AUDIT&INSPECTION OF RECORDS The contractor selected as a result of this solicitation agrees that City of San Luis Obisnm the Comptroller General of the United States, and the Secretary of Transportation,or any of their duly authorized representatives,shall,for the purpose of audit and examination,be permitted to inspect all work,materials,payrolls,and other data and records,and to audit the books,records,and accounts relating to the performance of the contract Further,said contractoragtees to maintain all required records for at least three yearsafterCity ofSan Luis Obispo has made final paymentand all other pending mattes are closed. 19. FEDERAL CHANGES This project is fimded in part by a grant from the Federal Transit Administration(FTA)or the Federal HighwayAdministration(FHWA).Federal laws,regulations,policies,and related administrative practices are applicable to the project on the date the grant was authorized by the FTA or the FHWA and may be modified from time to time. The Contractor is hereby instructed that the most recent of such Federal requirementswill govern the administrationof the project at any particuhu•time,exceptif the FTA or the FHWA issues a written determination otherwise.Federal requirements applicable to this project may 12 v Attachnna(lf 1 change and the changed requirementswill apply to the project as required,unless the Federal Govounent determines otherwise. Up 20. CLEAN WATER The Contractor acknowledges that any facilities or equipment acquired,constructed,manufactured,or improved for which the Contractor is responsible as a part of any project resulting from a contract or agreement with City of San Luis Obispo may be subject to complying with all applicable standards, orders,or regulations issued pursuant to the Federal WaterPolIution Control Act,as amended,33 U.S.C. 1251 et seg. Among other things; (1) The Contractor agrees to protect underground sources of drinking water consistent with the provisions of the Safe Drinking Water Act of 1974,as amended,42 U.S.C.' ' 300h et seg. (2) The Contractor agrees to comply with the notification of violating facilities provisions of ExecutiveOrderNo.11738,Administrationof the Clean AirAct and theFederal WaterPollution Control Act with Respect to Federal Cartracts,Grants or Loans,42 U.S.C. ' 7606 note. 21. ENVIRONMENTAL REQuIREM ENTS The Contractor agrees tocomply with all applicable requirements of the National Environmental Policy Act of 1969,as amended,42 U.S.C. ' ' 4321 et seg. consistent with Executive Order No. 11514, as amended,Protection and Enhancement ofEnvironmental Quality,42 U.S.C. ' 4321 note;FTA statutory requirements on environmental matters at 49 U.S.C. ' 5324(b); Council on Environmental Quality regulations on compliance with the National Environmental Policy of 1969,as amended,40 C.FR Part 1500 etseg.;and jointFHWAJFTA regulations,Environmental Impact and Related Procedures,23 C.F.R. Part 771 and 49 C.F.R.Part 622. 22. NOTIFICATION OF FEDERAL PARTICIPATION In any announcement of any third party contract involving Federal grant funds for goods or services (including construction services)having an aggregate value of$500.DG0 or more, City of San Luis Obispo will spmifythe amountof Federal assistanceto be used in financingthatacquisition ofgoods and services and to express the amount of that Federal assistance as a percentage of the total cost ofthat third ply contract- 23. ontract23. TMAUNATION FOR CONVENIENCE City of San Luis Obispo may terminatethis contract,in whole or in part,at anytime by written noticeto the Contractor when it is in the Governments best interest. The Contractor shall be paid its costs, including contract closeout costs,and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to City,of San Luis Obispo to be paid the Contractor.Ifthe Contractorhas any property in its possession belonging to City of San Laic Obispo.the Contractor will account for the same,and dispose of it in the mannerCity of San Leis Obispo directs. 24. TERMINATION FOR DEFAULT If the Contractor does not deliver supplies in accordance with the contract delivery schedule,or,if the 13 -J7Z A-ftaC11ment contract is for services,the Contractor fails to perform in the manner called for in the conk oiftl� Contractor fails to comply with any other provisions of the contract,City of San Leis Obis y4 terminate this contractfor default. Termination shall be effected by serving a notice ofterminationontf Y contrectorsetting forth the manner in which the Contractor is in default. The contractorwil l only be paid the contract price for supplies delivered and accepted, or services performed in accordance with this contract. It a$erterminationforfaiilureto fulfill contractobligations,it is determinedtbatthe Contractorwas not in default,the rights and obligations ofthe parties shall be the same as ifthe terminationhad been issued for the convenience ofCity of San Luis Obispo. 25. PATENT RIGHTS If any invention, improvement, or discovery of City of San Luis Obispo or any contractor or subcontractors conceived or first actually reduced to practice in the course of or undeft Contract or Agreement,and that invention,impravement,or discovery is patentable under the laws of the United States of America or any foreign country, City of San Luis Obispo and the contractor or any subcontractor shall notify the FTA or the F 4WA immediately ancprovide a detailed report. The rights and responsibilities of Criy of San Luis Obism the contractor or subcontractor of any tier,and the Governmentwith respectto such invention,improvement,or discoverywill be determined in accordance with applicable Federal laws,regulations,policies,and any waiver thereof. 26. CLEAN AIR AND CLEAN WATER As a condition of satisfactory contract performance,the contractor shall report to City of San Luis Obispo the FTA,or the FHWA,as applicable,and to the Regional Environmental Protection Agency (EPA)the use offacilitiesconsideredto be placed on EPAs List of ViolatingFacilities,refiain from using violating facilities,report violations to the FTA, or the FHWA, as applicable,and the Regional EPA Office,and comply with the inspection and other requirements of the following: 1. Section 114 of the Clean Air Act,as amended,42 U.S.C. ' 7414, as well as other applicable provisions of the Clean Air Act,as amended,42 U.S.Q.' ' 7401 et seg.;and, 2. Section 308 of the Federal WaterPollution Control Act,as amended,33 U.S.C. ' 1318,as well as other provisions of the Federal Water Pollution Control Act,as amended,33 U.S.C. ' ' 1251 et seq. 27. FLY AMERICA The Contractor understands and agrees that the Federal Government will not participate in the costs of international sir transportation of any persons involved in or property acquired forthe Project unless that air transportation is provided by U.S.flag air carriers to the extent service by U.S.-flag air carriers is available,in accordancewith the International Air Transportation Fair Competitive Practices Act of 1974, as amended,49 U.S.C.§40118,and with U.S.GSA regulations,"Use of United States Flag Air Carriers," C.F.R.§§30I-10.131 through 30I-10.143. The remainder of this page has been Ieft blank intentionally. 14 Attachment 1 BUY AMERICA CERTIFICATE CERTIFICAcoo 0 TION Of COMPLLANCE WITH SECTION 165(a) p� The bidder/proposer hereby certifies that it and/or the manufacturer it represents will comply with the requirements of section 165(a)of the Surface Transportation Assistance Act of 1982,as amended,and the applicable regulations in 49 CFR part 661. Date: Signature: Title: Company Name CERTIFICATION OF NON-COMPLIANCE WITH SECTION 165(a) The bidder/proposer hereby certifies that it and/or the manufacturer it represents cannot comply with the requirements of section 165(a)of the Surface TransportationAssistanceAct of 1982,as amended,but it may qualify for an exception to the requirement pursuant to section 165(b)(2) or (b)(4) of the Surface Transportation Assistance Act of 1982,as amended,acd regulations in 49 CFR 661.7. Date- Signature: Title: Company Name: If a successful bidder/proposer fails to demonstrate that it is in compliance with its certification,it will be required to take the necessarysteps in order to achieve compliance.Ifa bidder/proposertaltesthese necessary steps,it will not be allowed to change its original bid/proposed price.If a bidderiproposer does not take the necessary steps,it will not be awarded the contract if the oontracthas notyet been awarded,and it is in breach of contract if a contract has been awarded 15 76y AttaChment i CERTIFICATION REGARDING LOBBYING 1, the undersigned hereby certify (Typed Name and Title of Company Official) on behalf of to the best of his or her U (Typed Name of Company) knowledge and belief that: 1. No Federal appropriated funds have been paid or will be paid,by or on behalf of the undersigned,to any person for influencing or attempting to influence an officer or employee of an agency,a Member of Congress,an officer or employee of Congress,or an employee of a Member of Congress in connection with the awarding of any Federal contact,the making of any Federal grant,the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment,or modification of any Federal contract,grant,loan,or coopera0e agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer of employee of any agency,a Member of Congresarr officer or employeeofCongmss,or an employeeofa Member ofCongress in connection with this Federal contract,giant,loan or cooperativeagreement,the undersigned shall complete and submit Standard Form- LLL,"DisclosureForm to Report Lobbying,"in accordance with its instructions. The Standard Form-LLL shall be submitted to the Regional Transportation Commission,attention:Management Services. 3. The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers(including subcontracts,sub-grants,and contracts under grants,loans,and cooperative agreements)and that all subrecipients shall certify and disclose accordingly. This certifrcationis a material representation of fact upon which reliancewas placed when thistransactian was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352,title 31,U.S.Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than$10,000 and not more than$100.000 for each such failure. Executed this day of 26 By (Signature of Authorized Official) (Title of Authorized Official) 16 Attachment 1- CERTIFICATE REGARDING DEBARMENT,SUSPENSION,INELIGIBH4TY\) AND VOLUNTARY EXCLUSION—LOWER TIER COVERED TRANSACTIONS(OZ�, I. The Lower Tier Participant [Typed Name of Contractor) certifies,by submission of this bid or proposal,that neither it nor its principals is presently debarred,suspended, proposed for debarment,declared ineligible,or voluntarily excluded from participation in this transaction by any Federal department or agency. 2. Where the prospective lower tier(the contractor)participant is unable to certify to any of the statements in this certification,such prospective participant shall attach an explanation to this id or proposal. THE LOWER TIER PARTICIPANT. [Typed Name of Contractor] CERTIFIES OR AFFIRMS THE TRUTHFULNESS AND ACCURACY OF THE CONTENTS OF THE STATEMENTS SUBMITTED ON OR WITH THIS CERTIFICATION AND UNDERSTANDS THAT THE PROVISIONS OF 31 U.S.C. SECTIONS 3801 ET SEO•ARE APPLICABLE THERETO. (Signature and Title of Authorized Offci i) Date 17 Attachment 1 Ak 0:51331 111METITZ9312A 50M• e e April 11,2007 Mr. David Hartwick Implicit Purchase Pooling Solutions, L.P. 2002 Academy Lane Suite 130 Farmers Branch,Texas 75234 Re; Expression of Interest to Participate in Federal Transit Administration("FTA")Cooperative Procurement Pilot Program Dear Mr.Hartwick, Please accept this letter as the City of San Luis Obispo's expression of interest to participate in a capital equipment purchasing pool to be formed utilizing Implicit Solutions Purchase Pooling Internet-based technology(the"Pool"). The Pool is being formed for the purpose of acquiring new mass transit vehicles by participating agencies and will be subject to the FTA's Cooperative Procurement Pilot Program guidelines,through which the Federal share for a qualified grant shall be 90%of the net project cost. It is our understanding and intent that the Pool will ultimately submit a Request for Proposal ("RFP")to qualified contractors of new vehicles under this program. San Luis Obispo intends to acquire a minimum of five(5)diesel powered, low floor,heavy duty transit vehicles through its participation in the Pool over a period of approximately five(5)years. San Luis Obispo's participation in the Pool will be contingent upon and subject to the execution of a mutually acceptable contract between San Luis Obispo and Implicit Solutions. The contract shall document,among other things,the terms and conditions under which Implicit's Purchase Pooling Solutions Internet based software will be utilized in the procurement process. This letter is being provided, in part,to satisfy FTA's requirement that Implicit Solutions identify a pool of not less than three transit agencies procuring a total of at least 75 vehicles. Please be advised that this letter does not constitute a fixed commitment by San Luis Obispo to participate in the Pool and/or to acquire the vehicles identified above. Also, it is our understanding that the pilot program will be terminated if the RFP for the equipment purchase has not been issued within 18-months of the acceptance of the Pool by the FTA. Yours truly, John P.Webster Sr. Transit Manager City of San Luis Obispo-Public Works Department 919 Palm Street San Luis Obispo, California 93401 (805)781-7121 Fax: (805)781-7563 Pc: Tim Bochum, City of San Luis Obispo Eliane Guillot, San Luis Obispo Council of Governments A �_� i ° COUNCIL MEMORANDUM Date: September 13, 2007 RED FILE RECEIVED MEETING AGENDA SEP 18 2007 TO: Ke mpian J DA VL,?/R ITEM # C-_7 SLO CIlY CLERK FROM: Timothy Scott Bochum, Deputy Director of Public Works SUBJECT: MTC Action: JOINT TRANSIT VEHICLE WEB BASED PROCUREMENT PILOT PROJECT The purpose of this memo is to provide the Council with a status update regarding the Mass Transportation Committee (MTC) review and recommendation for the Joint Transit Vehicle WEB based Procurement Pilot Project. The MTC met on September 12, 2007 and after consideration of the staff report they unanimously approved the staff recommendation to participate as an agency in the Federal Transit Administration's Cooperative Procurement Pilot Program and utilizing Implicit Purchase Pooling Solutions; LP as their consultant. There are no direct fiscal impacts to the General Fund due to the recommendations by the MTC on this issue. G:lSW-Reporis-Apendw-Minutm\-CAR\200TTransportation\TwsitVnplicit Purchase PooN webster RED FILE d2fl COUNCIL MEMORANDUM MTC CONCURRENCE PROCUREMENT POOL PILOT PROGRAM(IMPLICIT)September 12,2007.dco ENWFPG COUNCIL TCDD DIR CAO l?'FIN DIR ACAO �2 FIRE CHIEF ATTORNEY Ie PW DIR gCLERK/ORIG 7v POLICE CHF DEPT HEADS yr REC DIR a UTIL DIR HR DIR r ev0 CF<- )L +s C.C.E#t-le- �j B-4 Decals Mr. Webster reported t etter way to outline/indicate fare in n t at Medicare Cardholders had be ed as a fare category. C. ACTION ITEMS C-1 Web Based Transit Vehicle Purchase Pool Project Mr. Webster discussed the staff report regarding the procurement pool concept and progress of current "piggy-backing" on purchase contracts and RFPs with other agencies for quicker access to large volume, lower cost vehicle purchases. He noted customization details could be included, there was no long-term commitment or mandatory purchase involved, and that agency participation could be terminated at any time. He projected savings of at least 10% Local Match (TDA) and felt that participating in the proposed procurement pool was a "win/win" situation. Mr. Blakeman stated he agreed with the participation concept and felt the contract/bid process was flexible enough to accommodate First Transit operating needs and concerns. Mr. Doyle moved to recommend that Council accept entering into the Purchase Pool Agreement with Implicit Purchase Pool Solutions as outlined by staff. Ms. Amundson seconded the motion. The motion passed unanimously. D. INF MATION ITEMS D-1 Tran . Manager's Report Mr. Webster recapped seve oints in the report for di sion. He also discussed various options ap/ a signage available to riders for review, e.g. H-post signs, P-post sign Mr. Blakeman reported o minor collision ha curred on Chorro/Pacific Sts. involving a new Ro operator and noted there w no injuries. MTC TES —9/12/07