APPENCIX C, REVISED: DECEMBER 15, 2010
CONTRACT
FOR
MULTIPROTOCOL AVI READERS
AND
SUPPORT SERVICES
Contents
1. Recitals 6
2. Definitions. 6
3. Inclusion and Priority of Documents 6
4. Scope of Work 6
5. Contract Term and Renewal. 7
6. Contractor Responsibility 7
6.1 Contractor Personnel 7
6.2 Contractor Program Manager 7
6.3 Permits, Licenses 7
6.4 No Discrimination 7
6.5 Cooperation 7
6.6 Meetings. 7
6.7 Material Change in Contractor’s Financial Condition 7
6.8 Contractor-owned Facilities 8
7. Pricing and Payment 8
7.1 Pricing Schedule 8
7.2 Trust Funds 8
7.3 Overpayment 8
7.4 Withholding Payments 8
7.5 Payment not Acceptance 8
7.6 Liquidated Damages 8
7.7 Net 30 Days 8
7.8 Invoicing 8
7.9 Monthly Draws 8
7.10 Right of Set Off 8
7.11 Full Compensation 8
7.12 Disputed Invoices 9
7.13 Firm Price Period 9
7.14 No Late Fees 9
7.15 Contractor Not to Withhold Equipment 9
8. Subcontracting and Assignment 9
8.1 Assignment 9
8.2 Subcontracting 9
8.3 Contractor Remains Responsible 9
8.4 Failure to Comply 9
9. Warranties. 10
9.1 Express Warranties 10
9.2 Third Party Warranties 11
9.3 No Waiver 11
9.4 Contractor Duty to Remedy 11
9.5 SRTA Cure 11
9.6 Remedies Not Exclusive 11
10. Relationship of the Parties 11
10.1 Joint Venture/Partnership 12
11. No Minimum Commitment. 12
12. Order Processing 12
12.1 Purchase Order 12
12.2 Confirmation 12
12.3 Delivery 12
12.4 Risk of Loss 12
13. Support Services. 12
13.1 Engineer 12
13.2 Delay by Third Party 12
13.3 SRTA’s Right to Remove 12
14. Inspection of Work 13
15. Intellectual Property License 13
15.1 License 13
15.2 Exclusions 13
16. Delay and Extensions of Time 13
17. Liquidated Damages 13
17.1 Failure to Meet Certain Requirements 13
17.2 Difficulty of Ascertaining Certain Damages 13
17.3 No Waiver 14
18. Confidentiality 14
18.1 Confidential Information 14
18.2 Exclusions 14
18.3 Use Restriction 14
18.4 Length of Confidentiality 14
18.5 Return of Confidential Information 14
19. Indemnification 14
19.1 General Indemnification 14
19.2 Intellectual Property Indemnification 15
19.3 General 16
20. Limitation of Liability of SRTA 16
21. Insurance 16
21.1 Insurance Certificates 16
21.2 Insurer Qualifications, Insurance Requirements 16
21.3 Required Insurance Coverages 17
21.4 Termination of Obligation to Insure 18
21.5 Failure of Insurers 18
21.6 Ongoing Coverage 18
21.7 General 18
22. Non-exclusivity 18
23. Records Retention and Audit Rights 18
24. Limitation of Liability of SRTA 19
25. Dispute Resolution 19
26. Adequate Assurances. 19
27. Event of Default; Damages/Remedies 19
27.1 Event of Default 19
27.2 SRTA Damages/Remedies 20
28. Cover 20
29. Cooperation, Transition of Equipment, and End of Contract Responsibilities 21
30. Termination 21
31. Conflicts of Interest 21
32. Records Retention and Audit Rights 22
33. Exhibits 22
34. Cooperative Purchasing. Contractor agrees that, upon SRTA’s written approval, tolling entities from other states and other third parties (individually, “Third Party” and collectively, “Third Parties”) may purchase any item of Work under this Contract. In such a case, Contractor shall look solely to the Third Party placing such order for all obligations and liabilities due to Contractor under the Contract Documents for such purchase. By way of example and not limitation, SRTA shall have no liability whatsoever to Contractor for payment for such ordered item of Work. 22
35. Miscellaneous Provisions 22
35.1. Compliance with laws 22
35.2 Parties Bound 22
35.3 Time of the Essence; Force Majeure 22
35.4 Non-disparagement 22
35.5 Trading with State Employees 23
35.6 Federal Intellectual Property Bankruptcy Protection Act 23
35.7 Governing Law 23
35.8 Notices 23
35.9 Compliance with Laws; Taxes 23
35.10 Publicity 23
35.11 Drug-Free Workplace 23
35.12 Remedies Cumulative 24
35.13 Waiver and Severability 24
35.14 No Third Party Beneficiaries 24
35.15 Interpretation 24
35.16 Counterparts 24
35.17 Construction of Contract 24
35.18 Immigration and Security Compliance. 24
35.19 Survival 24
35.20 Non-exclusivity 24
35.21 Entire Contract; Amendment 24
35.22 Gantry Controlled Access 25
35.23 Registered Lobbyists 25
CONTRACT FOR MULITPROTOCOL AVI READERS
AND SUPPORT SERVICES
This Contract for Multiprotocol AVI Readers and Support Services (the “Contract”) is made and entered into as of the ______day of ______, 2011 (“Effective Date”), by and between the STATE ROAD AND TOLLWAY AUTHORITY, a body corporate and politic and an instrumentality and public corporation of the State of Georgia (“SRTA”), and ______, a ______, and authorized to do business in the state of Georgia (the “Contractor”). SRTA and Contractor may be referred to individually as “Party” or collectively as “Parties.”
WHEREAS, SRTA desires to engage a qualified and experienced contractor to provide certain equipment and to furnish services and documentation as more fully described in the Multiprotocol AVI Reader RFP # 927-11-00002 and any addenda thereto and any documents referenced therein (collectively, the “RFP”); and
WHEREAS, the Contractor has represented to SRTA that it is experienced qualified and willing to provide: (i) Reader Subsystems and Multiprotocol Readers set forth in Exhibit C (Pricing Schedules) (collectively, the “Equipment”) specifically for performance and use on the I-85 Express Lanes Project, the North West Corridor Project, the Georgia 400 Extension, any other future ORT, HOT, or ETC environments in the State and any other possible future tolling projects; (ii) the services set forth in Section 9 (Support Services) of Appendix D of the RFP (collectively, the “Support Services”); and (iii) the documentation required throughout the Contract Documents, including Section 7 (Documentation) of Appendix D of the RFP (collectively, the “Documentation”); and
WHEREAS, SRTA has relied upon such representations and selected the Contractor to provide the Equipment, the Support Services and the Documentation (the Equipment, Support Services and Documentation may be referred to individually and collectively as “Work”); and
WHEREAS, Contractor understands that the physical installation of the Equipment will be performed by a third party (“Systems Integrator”), the services of which may, at SRTA’s option, be procured in a separate procurement for each toll facility; and
WHEREAS, Contractor, as part of the Support Services, agrees to cooperate and to assist the Systems Integrator as set forth in the RFP and the Contract; and
WHEREAS, pursuant to O.C.G.A. § 32-10-63(5), SRTA is authorized to contract for the Work.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. Recitals. The recitals set forth above are true and correct and are incorporated into this Contract.
2. Definitions. Any capitalized term not specifically defined in this Contract will have the same meaning assigned in the RFP to that term.
3. Inclusion and Priority of Documents. The RFP, which is incorporated herein by reference as Exhibit A, and the Contractor’s Proposal (and any documents referenced therein) submitted in response thereto, which is incorporated herein by reference as Exhibit B (collectively, the “Contractor’s Proposal”), are integral parts of this Contract. The RFP, the Contractor’s Proposal, this Contract (including all amendments, documents and exhibits referenced in this Contract) shall be collectively referred to as the “Contract Documents” or the “Contract” and shall govern the contractual relationship between the Contractor and SRTA. In the event of a conflict among the Contract Documents, the Contract Documents shall control one over another in the following order: Any formally executed Amendments to the Contract, the Contract, the RFP, and the Contractor’s Proposal.
4. Scope of Work. Contractor agrees to provide and to deliver all of the Equipment as set forth in the Contract Documents. All Equipment will be new, manufactured by skilled, qualified and properly trained labor, be free and clear of all liens and encumbrances, and not violate any Intellectual Property (defined in Section 13.1.4/Intellectual Property) rights of any third party. The Equipment shall be provided by Contractor within the periods specified in the schedule set forth in Section 3.15 (Order Fulfillment) of Appendix D of the RFP (“Schedule”) and in full cooperation with SRTA, SRTA-Designated Representative(s) and/or the Systems Integrator, as applicable. Contractor shall not require reprogramming, programming, installation, or any other change, directly or indirectly, to any Tags, including security schema or otherwise. Contractor shall perform the Support Services in a workmanlike and professional manner, consistent with the highest level of care and skill exercised by other providers of similar Support Services in the industry. The Support Services shall be performed pursuant to the time frames set forth in Section 9 of Appendix D of the RFP. Firmware Updates as required in Section 9.3 (Firmware Updates) of Appendix D of the RFP shall be available to SRTA at the same time such firmware is first available to any of Contractor’s customers. All Documentation shall include all information as required in the Contract Documents and otherwise be complete in all respects. Contractor shall provide to SRTA the Documentation pursuant to the time frames set forth in the RFP.
5. Contract Term and Renewal. This Contract shall begin on the Effective Date and shall continue until June 30, 2016 (the “Initial Term”). SRTA may elect to renew this Contract on the same terms and conditions for up to five (5) additional renewal periods with a term of up to one (1) year each (each a “Renewal Term”). Any renewal of the Contract shall be at the sole discretion of SRTA.
6. Contractor Responsibility.
6.1 Contractor Personnel. The Contractor shall provide sufficient professional personnel and staffing to provide the Work. All persons assigned to perform under this Contract shall be employees or authorized subcontractors of Contractor and shall be fully qualified to perform the Work. Contractor and its personnel (and any approved subcontractors and their personnel) shall comply with the confidentiality provisions of Section 18 (Confidentiality).
6.2 Contractor Program Manager. Throughout the Initial Term and each Renewal Term, Contractor shall assign a Program Manager who shall interface with SRTA, the System Provider, SRTA-Designated Representatives, and any other third party vendor of SRTA.
6.3 Permits, Licenses. Throughout the Initial Term and each Renewal Term, Contractor shall procure and maintain, at its expense, all permits and licenses that may be required in connection with the performance of Work by the Contractor and as otherwise required in the Contract Documents. Contractor shall furnish copies of the permits and licenses upon SRTA’s request.
6.4 No Discrimination. Contractor shall not and shall cause any subcontractor to not discriminate on the basis of race, color, national origin, sex, age, religion or handicap in the performance of the Work under the Contract Documents. Contractor shall carry out and shall cause its subcontractors to carry out, applicable requirements of 49 CFR Part 26. Contractor shall include this provision in every subcontract pertaining to the Work.
6.5 Cooperation. SRTA shall be entitled to full and prompt cooperation of the Contractor in all aspects of the Work. Contractor shall also fully and promptly cooperate with the System Provider, SRTA-Designated Representatives, and any third party vendors providing maintenance, transponders, other equipment and/or services to or on behalf of SRTA. In the event the Contractor deems that the System Provider or any other of SRTA’s contractors/vendors is delaying or not performing their work or otherwise interfering with the Work, Contractor shall immediately notify SRTA in writing of this matter, including a detailed explanation of such delay so that SRTA may investigate the issue and assist with a resolution. Contractor’s failure to furnish a detailed written notification within seven (7) Days after the System Provider or any other of SRTA’s contractors/vendors first failed to cooperate with Contractor or otherwise improperly performed their work, shall result in SRTA’s denial of any future claim by Contractor that the System Provider or any other of SRTA’s contractors/vendors, as applicable, failed to properly perform their work or failed to cooperate with Contractor and Contractor shall be deemed to have waived such claim and Contractor shall be held to any applicable requirement under the Contact Documents that Contractor alleges is affected thereby.
6.6 Meetings. SRTA and Contractor shall conduct meetings as deemed needed by SRTA to review, discuss and resolve matters relating to coordination, Work, and other matters relating to the Contract Documents.
6.7 Material Change in Contractor’s Financial Condition. Contractor shall immediately notify SRTA of any material adverse change since the Effective Date in Contractor’s financial condition, business, prospects, affairs or operations or of any change of any partner or of such change of any shareholder holding greater than a 10% interest in Contractor, or of the existence of any material impairment of rights or ability of Contractor to carry on as its business and operations are currently conducted.
6.8 Contractor-owned Facilities. Contractor shall have sole responsibility for risk of loss to Contractor-owned facilities, equipment and other goods.
7. Pricing and Payment.
7.1 Pricing Schedule. For satisfactory performance of the Work, SRTA hereby agrees to compensate the Contractor in accordance with the prices set forth in Exhibit C (Pricing Schedules). To the extent payment for Work will be on a unit price basis, then such units must be received and accepted in writing by SRTA prior to payment. If payment for any Work will be on a lump sum basis, Contractor shall not invoice for such Work until the Work is completed and accepted by SRTA.
7.2 Trust Funds. All payments made by SRTA to Contractor for the Work under the Contract Documents shall be held in trust by the Contractor for the purpose of paying its employees, agents, assigns, subcontractors, suppliers and any other labor who provided any part of the Work.
7.3 Overpayment. In the event an overpayment is made to Contractor under this Contract, Contractor shall immediately refund to SRTA the full amount of any such erroneous payment or overpayment following SRTA’s written notice of such erroneous payment or overpayment. If Contractor fails to refund the erroneous payment or overpayment within thirty (30) Days after SRTA’s demand therefor, SRTA shall be entitled to interest at one (1%) percent per month on the amount not repaid from the date of overpayment. If applicable, SRTA may deduct the amount of overpayment from any subsequent payment owed by SRTA to Contractor.