Ontario City Council
February 18, 2025

shipping carton must be marked with the commodity, brand, quantity, item code number and the Purchasing Entity’s Purchase Order number.

IX. Inspection and Acceptance

9.1 Laws and Regulations. Any and all Products offered and furnished must comply fully with all applicable Federal, State, and local laws and regulations.

9.2 Applicability. Unless otherwise specified in the Master Agreement, Participating Addendum, or ordering document, the terms of this Section IX will apply. This section is not intended to limit rights and remedies under the applicable commercial code.

9.3 Inspection. All Products are subject to inspection at reasonable times and places before Acceptance. Contractor shall provide right of access to the Lead State, or to any other authorized agent or official of the Lead State or other Participating or Purchasing Entity, at reasonable times, to monitor and evaluate performance, compliance, and/or quality assurance requirements under this Master Agreement.

9.3.1 Products that do not meet specifications may be rejected. Failure to reject upon receipt, however, does not relieve the contractor of liability for material (nonconformity that substantial impairs value) latent or hidden defects subsequently revealed when goods are put to use.

9.3.2 Acceptance of such goods may be revoked in accordance with the provisions of the applicable commercial code, and the Contractor is liable for any resulting expense incurred by the Purchasing Entity related to the preparation and shipping of Product rejected and returned, or for which Acceptance is revoked.

9.4 Failure to Conform. If any services do not conform to contract requirements, the Purchasing Entity may require the Contractor to perform the services again in conformity with contract requirements, at no increase in Order amount. When defects cannot be corrected by re-performance, the Purchasing Entity may require the Contractor to take necessary action to ensure that future performance conforms to contract requirements and reduce the contract price to reflect the reduced value of services performed.

9.5 Acceptance Testing. Purchasing Entity may establish a process, in keeping with industry standards, to ascertaining whether the Product meets the standard of performance or specifications prior to Acceptance by the Purchasing Entity.

9.5.1 The Acceptance Testing period will be thirty (30) calendar days, unless otherwise specified, starting from the day after the Product is delivered or, if installed by Contractor, the day after the Product is installed and Contractor certifies that the Product is ready for Acceptance Testing.
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9.5.2 If the Product does not meet the standard of performance or specifications during the initial period of Acceptance Testing, Purchasing Entity may, at its discretion, continue Acceptance Testing on a day-to-day basis until the standard of performance is met.

9.5.3 Upon rejection, the Contractor will have fifteen (15) calendar days to cure. If after the cure period, the Product still has not met the standard of performance or specifications, the Purchasing Entity may, at its option: (a) declare Contractor to be in breach and terminate the Order; (b) demand replacement Product from Contractor at no additional cost to Purchasing Entity; or, (c) continue the cure period for an additional time period agreed upon by the Purchasing Entity and the Contractor.

9.5.4 Contractor shall pay all costs related to the preparation and shipping of Product returned pursuant to the section.

9.5.5 No Product will be deemed Accepted and no charges will be paid until the standard of performance or specification is met.

X. Warranty

10.1 Applicability. Unless otherwise specified in the Master Agreement, Participating Addendum, or ordering document, the terms of this Section X will apply.

10.2 Warranty. The Contractor warrants for a period of one year from the date of Acceptance that: (a) the Product performs according to all specific claims that the Contractor made in its response to the solicitation, (b) the Product is suitable for the ordinary purposes for which such Product is used, (c) the Product is suitable for any special purposes identified in the solicitation or for which the Purchasing Entity has relied on the Contractor’s skill or judgment, (d) the Product is designed and manufactured in a commercially reasonable manner, and (e) the Product is free of defects.

10.3 Breach of Warranty. Upon breach of the warranty set forth above, the Contractor will repair or replace (at no charge to the Purchasing Entity) the Product whose nonconformance is discovered and made known to the Contractor. If the repaired and/or replaced Product proves to be inadequate, or fails of its essential purpose, the Contractor will refund the full amount of any payments that have been made.

10.4 Rights Reserved. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs.

10.5 Warranty Period Start Date. The warranty period will begin upon Acceptance, as set forth in Section IX.
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XI. Product Title

11.1 Conveyance of Title. Upon Acceptance by the Purchasing Entity, Contractor shall convey to Purchasing Entity title to the Product free and clear of all liens, encumbrances, or other security interests.

11.2 Embedded Software. Transfer of title to the Product must include an irrevocable and perpetual license to use any Embedded Software in the Product. If Purchasing Entity subsequently transfers title of the Product to another entity, Purchasing Entity shall have the right to transfer the license to use the Embedded Software with the transfer of Product title. A subsequent transfer of this software license will be at no additional cost or charge to either Purchasing Entity or Purchasing Entity’s transferee.

11.3 License of Pre-Existing Intellectual Property. Contractor grants to the Purchasing Entity a nonexclusive, perpetual, royalty-free, irrevocable, license to use, publish, translate, reproduce, transfer with any sale of tangible media or Product, perform, display, and dispose of the Intellectual Property, and its derivatives, used or delivered under this Master Agreement, but not created under it (“Pre-existing Intellectual Property”).

The Contractor shall be responsible for ensuring that this license is consistent with any third-party rights in the Pre-existing Intellectual Property.

XII. Indemnification

12.1 General Indemnification. The Contractor shall defend, indemnify and hold harmless NASPO, NASPO ValuePoint, the Lead State, Participating Entities, and Purchasing Entities, along with their officers and employees, from and against third-party claims, damages or causes of action including reasonable attorneys’ fees and related costs for any death, injury, or damage to tangible property arising from any act, error, or omission of the Contractor, its employees or subcontractors or volunteers, at any tier, relating to performance under this Master Agreement.

12.2 Intellectual Property Indemnification. The Contractor shall defend, indemnify and hold harmless NASPO, NASPO ValuePoint, the Lead State, Participating Entities, Purchasing Entities, along with their officers and employees ("Indemnified Party"), from and against claims, damages or causes of action including reasonable attorneys’ fees and related costs arising out of the claim that the Product or its use infringes Intellectual Property rights of another person or entity ("Intellectual Property Claim").

12.2.1 The Contractor’s obligations under this section will not extend to any combination of the Product with any other product, system or method, unless the Product, system or method is:

12.2.1.1 provided by the Contractor or the Contractor’s subsidiaries or affiliates;

12.2.1.2 specified by the Contractor to work with the Product;

12.2.1.3 reasonably required to use the Product in its intended manner, and the infringement could not have been
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avoided by substituting another reasonably available
product, system or method capable of performing the
same function; or

12.2.1.4 reasonably expected to be used in combination with the Product.

12.2.2 The Indemnified Party shall notify the Contractor within a reasonable time after receiving notice of an Intellectual Property Claim. Even if the Indemnified Party fails to provide reasonable notice, the Contractor shall not be relieved from its obligations unless the Contractor can demonstrate that it was prejudiced in defending the Intellectual Property Claim resulting in increased expenses or loss to the Contractor. If the Contractor promptly and reasonably investigates and defends any Intellectual Property Claim, it shall have control over the defense and settlement of the Intellectual Property Claim. However, the Indemnified Party must consent in writing for any money damages or obligations for which it may be responsible.

12.2.3 The Indemnified Party shall furnish, at the Contractor’s reasonable request and expense, information and assistance necessary for such defense. If the Contractor fails to vigorously pursue the defense or settlement of the Intellectual Property Claim, the Indemnified Party may assume the defense or
settlement of the Intellectual Property Claim and the Contractor shall be liable for all costs and expenses, including reasonable attorneys’ fees and related costs, incurred by the Indemnified Party in the pursuit of the Intellectual Property Claim.

12.2.4 Unless otherwise set forth herein, Section 12.2 is not subject to any limitations of liability in this Master Agreement or in any other document executed in conjunction with this Master Agreement.

XIII. Insurance

13.1 Term. Contractor shall, during the term of this Master Agreement, maintain in full force and effect, the insurance described in this section. A Participating Entity may negotiate alternative Insurance requirements in their Participating Addendum.

13.2 Class. Contractor shall acquire such insurance from an insurance carrier or carriers licensed to conduct business in each Participating Entity’s state and having a rating of A-, Class VII or better, in the most recently published edition of A.M. Best’s Insurance Reports. Failure to buy and maintain the required insurance may result in this Master Agreement’s termination or, at a Participating Entity’s option, result in termination of its Participating Addendum.

13.3 Coverage. Coverage must be written on an occurrence basis. The minimum acceptable limits will be as indicated below:
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13.3.1 Contractor shall maintain Commercial General Liability insurance covering premises operations, independent
contractors, products and completed operations, blanket contractual liability, personal injury (including death), advertising liability, and property damage, with a limit of not less than $1 million per occurrence and $2 million general aggregate;

13.3.2 Contractor shall maintain motor vehicle liability with limits not less than $1,000,000 combined single limit per accident. Such insurance shall cover liability arising out of a motor vehicle including owned, hired, and non-owned motor vehicles.

13.3.3 Contractor must comply with any applicable State Workers Compensation or Employers Liability Insurance requirements.

13.4 Notice of Cancellation. Contractor shall pay premiums on all insurance policies. Contractor shall provide notice to a Participating Entity who is a state within five (5) business days after Contractor is first aware of expiration, cancellation or nonrenewal of such policy or is first aware that cancellation is threatened or expiration, nonrenewal or expiration otherwise may occur.

13.5 Notice of Endorsement. Prior to commencement of performance, Contractor shall provide to the Lead State a written endorsement to the Contractor’s general liability insurance policy or other documentary evidence acceptable to the Lead State that (1) provides that written notice of cancellation will be delivered in accordance with the policy provisions, and (2) provides that the Contractor’s liability insurance policy will be primary, with any liability insurance of any Participating State as secondary and noncontributory.

13.6 Participating Entities. Contractor shall provide to Participating States and Participating Entities the same insurance obligations and documentation as those specified in Section XIII, except the endorsement is provided to the applicable Participating State or Participating Entity.

13.7 Furnishing of Certificates. Contractor shall furnish to the Lead State copies of certificates of all required insurance in a form sufficient to show required coverage within thirty (30) calendar days of the execution of this Master Agreement and prior to performing any work. Copies of renewal certificates of all required insurance will be furnished within thirty (30) days after any renewal date to the applicable state Participating Entity. Failure to provide evidence of coverage may, at the sole option of the Lead State, or any Participating Entity, result in this Master Agreement’s termination or the termination of any Participating Addendum.

13.8 Disclaimer. Insurance coverage and limits will not limit Contractor’s liability and obligations under this Master Agreement, any Participating Addendum, or any Purchase Order.
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XIV. General Provisions

14.1 Records Administration and Audit

14.1.1 The Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Agreement and Orders placed by Purchasing Entities under it to the extent and in such detail as will adequately reflect performance and administration of payments and fees. Contractor shall permit the Lead State, a Participating Entity, a Purchasing Entity, the federal government (including its grant awarding entities and the U.S. Comptroller General), and any other duly authorized agent of a
governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor's books, documents, papers and records directly pertinent to this Master Agreement or orders placed by a Purchasing Entity under it for the purpose of making audits, examinations, excerpts, and transcriptions. This right will survive for a period of six (6) years following termination of this Agreement or final payment for any order placed by a
Purchasing Entity against this Master Agreement, whichever is later, or such longer period as is required by the Purchasing Entity’s state statutes, to assure compliance with the terms hereof or to evaluate performance hereunder.

14.1.2 Without limiting any other remedy available to any governmental entity, the Contractor shall reimburse the applicable Lead State, Participating Entity, or Purchasing Entity for any overpayments inconsistent with the terms of the Master Agreement or Orders or underpayment of fees found as a result of the examination of the Contractor’s records.

14.1.3 The rights and obligations herein exist in addition to any quality assurance obligation in the Master Agreement that requires the Contractor to self-audit contract obligations and that permits the Lead State to review compliance with those obligations.

14.2 Confidentiality, Non-Disclosure, and Injunctive Relief

14.2.1 Confidentiality. Contractor acknowledges that it and its employees or agents may, in the course of providing a Product under this Master Agreement, be exposed to or acquire
information that is confidential to Purchasing Entity or Purchasing Entity’s clients.

14.2.1.1 Any and all information of any form that is marked as confidential or would by its nature be deemed
confidential obtained by Contractor or its employees
or agents in the performance of this Master
Agreement, including but not necessarily limited to (1) any Purchasing Entity’s records, (2) personnel
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confidential information of Purchasing Entity
(“Confidential Information”).

14.2.1.2 Any reports or other documents or items (including software) that result from the use of the Confidential
Information by Contractor shall be treated in the same
manner as the Confidential Information.

14.2.1.3 Confidential Information does not include information that (1) is or becomes (other than by disclosure by
Contractor) publicly known; (2) is furnished by
Purchasing Entity to others without restrictions similar to those imposed by this Master Agreement; (3) is
rightfully in Contractor’s possession without the
obligation of nondisclosure prior to the time of its
disclosure under this Master Agreement; (4) is
obtained from a source other than Purchasing Entity
without the obligation of confidentiality, (5) is
disclosed with the written consent of Purchasing
Entity; or (6) is independently developed by
employees, agents or subcontractors of Contractor
who can be shown to have had no access to the
Confidential Information.

14.2.2 Non-Disclosure. Contractor shall hold Confidential Information in confidence, using at least the industry standard of
confidentiality, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than what is necessary to the performance of Orders placed under this Master Agreement.

14.2.2.1 Contractor shall advise each of its employees and agents of their obligations to keep Confidential
Information confidential. Contractor shall use
commercially reasonable efforts to assist Purchasing
Entity in identifying and preventing any unauthorized
use or disclosure of any Confidential Information.

14.2.2.2 Without limiting the generality of the foregoing, Contractor shall advise Purchasing Entity, applicable
Participating Entity, and the Lead State immediately if Contractor learns or has reason to believe that any
person who has had access to Confidential Information
has violated or intends to violate the terms of this
Master Agreement, and Contractor shall at its expense
cooperate with Purchasing Entity in seeking injunctive
or other equitable relief in the name of Purchasing
Entity or Contractor against any such person.
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14.2.2.3 Except as directed by Purchasing Entity, Contractor will not at any time during or after the term of this
Master Agreement disclose, directly or indirectly, any
Confidential Information to any person, except in
accordance with this Master Agreement, and that upon
termination of this Master Agreement or at Purchasing
Entity’s request, Contractor shall turn over to
Purchasing Entity all documents, papers, and other
matter in Contractor's possession that embody
Confidential Information.

14.2.2.4 Notwithstanding the foregoing, Contractor may keep one copy of such Confidential Information necessary
for quality assurance, audits, and evidence of the
performance of this Master Agreement.

14.2.3 Injunctive Relief. Contractor acknowledges that Contractor’s breach of Section 14.2 would cause irreparable injury to the Purchasing Entity that cannot be inadequately compensated in monetary damages. Accordingly, Purchasing Entity may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Purchasing Entity and are reasonable in scope and content.

14.2.4 Purchasing Entity Law. These provisions will be applicable only to extent they are not in conflict with the applicable public disclosure laws of any Purchasing Entity.

14.2.5 NASPO ValuePoint. The rights granted to Purchasing Entities and Contractor’s obligations under this section will also extend to NASPO ValuePoint’s Confidential Information, including but not limited to Participating Addenda, Orders or transaction data relating to Orders under this Master Agreement that identify the entity/customer, Order dates, line-item descriptions and volumes, and prices/rates. This provision does not apply to disclosure to the Lead State, a Participating State, or any governmental entity exercising an audit, inspection, or examination pursuant to this Master Agreement. To the extent permitted by law, Contractor shall notify the Lead State of the identify of any entity seeking access to the Confidential Information described in this subsection.

14.2.6 Public Information. This Master Agreement and all related documents are subject to disclosure pursuant to the Lead State’s public information laws.
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14.3 Assignment/Subcontracts

14.3.1 Contractor shall not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this Master Agreement, in whole or in part, without the prior written approval of the Lead State.

14.3.2 The Lead State reserves the right to assign any rights or duties, including written assignment of contract administration duties, to NASPO ValuePoint and other third parties.

14.4 Changes in Contractor Representation. The Contractor must, within ten (10) calendar days, notify the Lead State in writing of any changes in the Contractor’s key administrative personnel managing the Master Agreement. The Lead State reserves the right to approve or reject changes in key personnel, as identified in the Contractor’s proposal. The Contractor shall propose replacement key personnel having substantially equal or better education, training, and experience as was possessed by the key person proposed and evaluated in the Contractor’s proposal.

14.5 Independent Contractor. Contractor is an independent contractor.

Contractor has no authorization, express or implied, to bind the Lead State, Participating States, other Participating Entities, or Purchasing Entities to any agreements, settlements, liability or understanding whatsoever, and shall not to hold itself out as agent except as expressly set forth herein or as expressly set forth in an applicable Participating Addendum or Order.

14.6 Cancellation. Unless otherwise set forth herein, this Master Agreement may be canceled by either party upon sixty (60) days’ written notice prior to the effective date of the cancellation. Further, any Participating Entity may cancel its participation upon thirty (30) days’ written notice, unless otherwise limited or stated in the Participating Addendum. Cancellation may be in whole or in part. Any cancellation under this provision will not affect the rights and obligations attending Orders outstanding at the time of cancellation, including any right of a Purchasing Entity to indemnification by the Contractor, rights of payment for Products delivered and accepted, rights attending any warranty or default in performance in association with any Order, and requirements for records administration and audit. Cancellation of the Master Agreement due to Contractor default may be immediate.

14.7 Force Majeure. Neither party to this Master Agreement shall be held responsible for delay or default caused by fire, riot, unusually severe weather, other acts of God, or acts of war which are beyond that party’s reasonable control. The Lead State may terminate this Master Agreement upon determining such delay or default will reasonably prevent successful performance of the Master Agreement.

14.8 Defaults and Remedies

14.8.1 The occurrence of any of the following events will be an event of default under this Master Agreement:
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14.8.1.1 Nonperformance of contractual requirements;

14.8.1.2 A material breach of any term or condition of this Master Agreement;

14.8.1.3 Any certification, representation or warranty by Contractor in response to the solicitation or in this
Master Agreement that proves to be untrue or
materially misleading;

14.8.1.4 Institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar officer for Contractor or any of its property, which is not vacated or fully stayed within thirty (30) calendar days after the institution or occurrence thereof; or

14.8.1.5 Any default specified in another section of this Master Agreement.

14.8.2 Upon the occurrence of an event of default, the Lead State shall issue a written notice of default, identifying the nature of the default, and providing a period of fifteen (15) calendar days in which Contractor shall have an opportunity to cure the default.

The Lead State shall not be required to provide advance written notice or a cure period and may immediately terminate this Master Agreement in whole or in part if the Lead State, in its sole discretion, determines that it is reasonably necessary to preserve public safety or prevent immediate public crisis. Time allowed for cure will not diminish or eliminate Contractor’s liability for damages, including liquidated damages to the extent provided for under this Master Agreement.

14.8.3 If Contractor is afforded an opportunity to cure and fails to cure the default within the period specified in the written notice of default, Contractor shall be in breach of its obligations under this Master Agreement and the Lead State shall have the right to exercise any or all of the following remedies:

14.8.3.1 Any remedy provided by law;

14.8.3.2 Termination of this Master Agreement and any related Contracts or portions thereof;

14.8.3.3 Assessment of liquidated damages as provided in this Master Agreement;

14.8.3.4 Suspension of Contractor from being able to respond to future bid solicitations;

14.8.3.5 Suspension of Contractor’s performance; and

14.8.3.6 Withholding of payment until the default is remedied.

14.8.4 Unless otherwise specified in the Participating Addendum, in the event of a default under a Participating Addendum, a
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remedies under this paragraph regarding its participation in the Master Agreement, in addition to those set forth in its Participating Addendum. Unless otherwise specified in an Order, a Purchasing Entity shall provide written notice of default as described in this section and have all of the rights and remedies under this paragraph and any applicable Participating Addendum with respect to an Order placed by the Purchasing Entity. Nothing in these Master Agreement Terms and
Conditions will be construed to limit the rights and remedies available to a Purchasing Entity under the applicable
commercial code.

14.9 Waiver of Breach. Failure of the Lead State, Participating Entity, or Purchasing Entity to declare a default or enforce any rights and remedies will not operate as a waiver under this Master Agreement, any Participating Addendum, or any Purchase Order. Any waiver by the Lead State, Participating Entity, or Purchasing Entity must be in writing. Waiver by the Lead State or Participating Entity of any default, right or remedy under this Master Agreement or Participating Addendum, or by Purchasing Entity with respect to any Purchase Order, or breach of any terms or requirements of this Master Agreement, a Participating Addendum, or Purchase Order will not be construed or operate as a waiver of any subsequent default or breach of such term or requirement, or of any other term or requirement under this Master Agreement, any Participating Addendum, or any Purchase Order.

14.10 Debarment. The Contractor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in public procurement or contracting by any governmental department or agency. This certification represents a recurring certification made at the time any Order is placed under this Master Agreement. If the Contractor cannot certify this statement, attach a written explanation for review by the Lead State.

14.11 No Waiver of Sovereign Immunity

14.11.1 In no event will this Master Agreement, any Participating Addendum or any contract or any Purchase Order issued
thereunder, or any act of the Lead State, a Participating Entity, or a Purchasing Entity be a waiver of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from any claim or from the jurisdiction of any court.

14.11.2 This section applies to a claim brought against the Participating Entities who are states only to the extent Congress has appropriately abrogated the state’s sovereign immunity and is not consent by the state to be sued in federal court. This section is also not a waiver by the state of any form of 145
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immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the
Constitution of the United States.

14.12 Governing Law and Venue

14.12.1 The procurement, evaluation, and award of the Master Agreement will be governed by and construed in accordance with the laws of the Lead State sponsoring and administering the procurement. The construction and effect of the Master Agreement after award will be governed by the law of the state serving as Lead State. The construction and effect of any Participating Addendum or Order against the Master Agreement will be governed by and construed in accordance with the laws of the Participating Entity’s or Purchasing Entity’s state.

14.12.2 Unless otherwise specified in the RFP, the venue for any protest, claim, dispute or action relating to the procurement, evaluation, and award is in the state serving as Lead State.

Venue for any claim, dispute or action concerning the terms of the Master Agreement will be in the state serving as Lead State.

Venue for any claim, dispute, or action concerning any Order placed against the Master Agreement or the effect of a
Participating Addendum will be in the Purchasing Entity’s state.

14.12.3 If a claim is brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for (in decreasing order of priority): the Lead State for claims relating to the procurement, evaluation, award, or contract performance or administration if the Lead State is a party; a Participating State if a named party; the state where the Participating Entity or Purchasing Entity is located if either is a named party.

14.13 Assignment of Antitrust Rights. Contractor irrevocably assigns to a Participating Entity who is a state any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of state or federal antitrust laws (15 U.S.C. § 1-15 or a Participating Entity’s state antitrust provisions), as now in effect and as may be amended from time to time, in connection with any goods or services provided in that state for the purpose of carrying out the Contractor's obligations under this Master Agreement or Participating Addendum, including, at the Participating Entity's option, the right to control any such litigation on such claim for relief or cause of action.

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2. The term of this Agreement is:
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EXHIBIT A: SCOPE OF WORK

1. AGREEMENT OVERVIEW
This Scope of Work reflects the products and supplies to be provided by Parts Authority, LLC hereinafter referred to as the “Contractor,” for the State of California hereinafter referred to as the “Lead State” and all other Participating States and Entities, for the Automotive Parts Master Agreement (“Agreement” or “Master Agreement”).

Contractor shall permit State of California agencies, California local governmental agencies and NASPO ValuePoint Participating States and Entities to participate under this Master Agreement. Subject to the approval of the Contractor, any Canadian provincial government or provincially funded entity in Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta, Northwest Territories, Nunavut, Yukon, and Newfoundland and Labrador, including municipalities, universities, community colleges, school boards, health authorities, housing authorities, agencies, boards, commissions, and crown corporations, may be eligible to use Contractor's Master Agreement.

Contractor will provide the entire portfolio of quality Automotive Parts to the Lead State, Participating States and Entities and local governmental agencies in a timely and efficient manner. Contractor will be the primary point of contact for data collection, reporting, and distribution of Automotive Parts to the Lead State and all other Participating States and Entities.

2. AGREEMENT TERM
The term of this Agreement is for a three (3) year period from the date of Master Agreement execution with the option to extend one (1) additional two (2) year period at the discretion of the Lead State. Extensions will be made by amendment to the Agreement at the same contracted discounts, terms and conditions.

3. RESPONSIBILITIES
A. Contractor shall meet all requirements identified in this Agreement.

B. Contractor will provide a Contract Manager in accordance with Exhibit A, Section

6.I.3 that will work with the Lead State Contract Administrator to fully implement and manage the Agreement.

C. Contractor will work closely with subcontractors (if applicable) to fully implement and manage this Agreement in accordance with Exhibit A, Section 6.I.1.

D. Contractor shall make available to the Lead State, technically competent personnel to accomplish the tasks and deliverables for the implementation and management of the Agreement.
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E. Contractor shall promptly notify the Lead State Contract Administrator in writing of any unresolved issues or problems related to the Agreement that have been outstanding for more than five (5) business days.

4. REQUIREMENTS
A. Available Product Categories
Contractor shall provide products for Automotive Parts categories at the discount provided in Exhibit B, Category Discounts. Products outside the scope of categories listed in Exhibit B may not be purchased from the Master Agreement.

B. Electronic Catalog
Item Description

1. Automotive Parts Electronic Catalog
Contractor shall develop and maintain an electronic catalog for use by Purchasing Entities. Contractor’s electronic catalog must be separate from the Contractor’s commercially available (i.e., public) online catalog and shall contain only category items and pricing as specified in the awarded Master Agreement. No other items or pricing may be shown in the electronic catalog without written approval from the Lead State Contract Administrator.

2. Electronic Catalog/Contract Website Contents
The Lead State Contract Administrator will review and determine acceptability of the electronic catalog format and data. The Electronic Catalog shall contain the following data elements at minimum:
• Item descriptions
• Contractor’s stock keeping number (SKU)
• Unit of measure (UOM)
• Quantity in the UOM
• List Price/MSRP
• Master Agreement price
• Quote generation (if applicable)
• Publicly available OEM price lists (current and archives) Within 30 calendar days of notice of award, Contractor will be required to provide the Electronic Catalog for Lead State Contract Administrator approval.

3. Availability
The Electronic Catalog shall be available twenty-four (24) hours per day, seven (7) days per week, except for regularly scheduled maintenance 149
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Item Description
times. Contractor shall not have any catalog viewing access restrictions for Participating States or Entities.

C. Pricing
Item Description

1. Category Discounts
Master Agreement employs a discount-off Manufacturer Suggested Retail Price (MSRP) structure. Category discounts outlined in Exhibit B, Category Discounts, will remain firm for the entire term of the agreement, including extension periods. However, Contractors may offer lower pricing on a per order basis to Purchasing Entities.

In the event a product falls into two or more categories the highest category discount will be applied.

2. Promotions
Contractor may offer promotional discounts, including but not limited to statewide promotional discounts, customer location specific discounts, bulk discounts, or spot discounts.

During special pricing promotions, the Contractor shall offer Participating Entities the promotional pricing or the category discount percentage off MSRP, whichever is lower.

Promotional pricing shall not be cause for a permanent change in pricing.

Promotional items shall come with all benefits of the Master Agreement terms and conditions and shall include all provisions such as warranty and delivery.

D. Retail Sales Establishments
Item Description

1. Retail Sales Establishments
Retail Sales Establishments are defined as any facilities that the Contractor uses on a regular basis to warehouse and/or sell merchandise, and at which the Contractor conducts regular business transactions at either the retail or wholesale level. Contractor facility should provide:
• Walk-in and will-call order system during regular work hours. • Customer service associate to support walk-in and will-call order system.
• Itemized sales receipts for all walk-in and will-call transactions. 150
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Item Description
• Availability of delivery.
• Acceptance of Purchasing Card.

These facilities shall be operated in accordance with state law and comply with all zoning requirements as implemented by local, county or state governments. Examples of unacceptable retail sales establishments include houses, garages, or storage rental facilities.

Contractor shall provide a list of authorized retail sales establishment locations to be used on this Master Agreement to the Lead State within 15 calendar days of notice of award.

If Contractor is offering Retail Sales Establishments, Contractor shall ensure state agencies, local government agencies and other Participating Entities will receive Master Agreement pricing when purchasing items through Retail Sales Establishments.

E. Ordering
Item Description

1. Ordering Methods
Contractor shall accept orders through the following methods:
• Electronic (email) – An email address to be used by
Purchasing Entities for placing orders must be in place before the commencement of this Master Agreement.
• Facsimile – A toll-free facsimile number to be used by Purchasing Entities for placing orders must be in place before the commencement of this Master Agreement. Facsimile orders must be accepted between the hours of 8:00 AM and 5:00 PM, Monday through Friday in the time zone the order is placed. • U.S. Mail – Contractor must have the capability to receive orders by mail in place before the commencement of this Master Agreement.
• Over-the-counter/Walk-In – Contractor shall provide over-the- counter order and delivery at all commercial locations. See Exhibit A, Section 6.D (Retail Sales Establishments).
• Online (internet) – Contractor’s Electronic Catalog website to be used by Purchasing Entities for placing orders must be in 151
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Item Description
place before the commencement of this Master Agreement. See Exhibit A, Section 6.B (Electronic Catalog).

Prior to contract award, Contractor shall provide the ordering information within five (5) business days of the Lead State’s request.

2. Purchase Execution
California state agencies must submit orders on a Purchasing Authority Purchase Order (Std. 65) or using the FI$Cal Purchase Order process in accordance with posted User Instructions.

Local government agencies and other Purchasing Entities may use their own approved Purchase Order document process as addressed in their Participating Addendum.

Contractor shall not accept purchase documents from Purchasing Entities that are incomplete or contain items outside the scope of the Master Agreement.

3. Minimum Order (M)
There is no minimum order.

4. Order Acknowledgement
The Contractor must provide Purchasing Entities with an order receipt acknowledgment via e-mail/facsimile within one (1) business day after receipt of an order. The acknowledgement will include:

• Purchasing Entity Name
• Purchase Order Number
• Description of Goods / SKUs
• Total Cost
• Anticipated Delivery Date
• Identification of any Out of Stock/Discontinued Items

5. Out-of-Stock Remedy
Upon receipt of order acknowledgment identifying out of stock items, the Purchasing Entity shall have the following options:
• Request back order
• Cancel the item from the order
Upon request, Contractor shall provide updates on back ordered items to the Purchasing Entity. Contractor is not permitted to make 152
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Item Description
substitutions or cancellations without authorization from the Purchasing Entity.

6. Core Exchange/Charges
All parts supplied which require core exchange shall be monitored by the Contractor to ensure proper cores are returned. Core credit is to be issued the same day as received. Any core that is not usable or not returned shall be billed at the core price listed in the manufacturer’s price sheet for that particular part.

7. Remanufactured Parts
Contractor may provide remanufactured parts when new parts are not available with authorization from the Purchasing Entity. Used, previously installed or shop-worn parts shall not be accepted.

F. Delivery
Item Description

1. Delivery Locations
Deliveries are to be made to the Purchasing Entities’ location specified on the individual order, which may include, but not be limited to inside buildings, high-rise office buildings, and receiving docks.

2. Delivery Schedule
Delivery of ordered product shall be completed within two (2) business days after receipt of an order, unless otherwise agreed to by the Purchasing Entity.

Since receiving hours for each Purchasing Entity will vary by facility, it will be the Contractor’s responsibility to check with each facility for their specific receiving hours before delivery occurs.

Contractor must notify the Purchasing Entity within 12 hours of scheduled delivery time, if delivery cannot be made within the time frame specified on the order.

3. Delivery from Retail Sales Establishments
Delivery of standard in-stock items to locations within five (5) miles from company’s retail business establishment shall be accomplished within 45 minutes. Delivery outside the five (5) mile range will be accomplished by a scheduled delivery.
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Item Description

4. Security Requirements for Institutions
Deliveries may be made to locations inside secure institutional grounds (such as state prisons) that require prior clearances to be made for delivery drivers.

Contractor will be responsible for contacting the secure location for security clearance procedures, hours of operation for deliveries and service, dress code, and other rules of delivery. These security clearance procedures may vary from facility to facility.

Deliveries that are delayed due to drivers not being cleared to enter institutional grounds may cause the contractor to be declared in default of contract requirements.

5. Free on Board (F.O.B.) Destination (Shipping Terms) All prices offered shall be F.O.B. destination, freight prepaid by the Contractor, to the Purchasing Entity’s final receiving point. Responsibility and liability for loss or damage for all orders shall remain with the Contractor until final inspection and acceptance, when all responsibility shall pass to the ordering organization, except the responsibility for latent defects, fraud, and the warranty obligations.

All emergency or rush deliveries that require special shipping and handling should be at the ordering entities expense, with prior approval from the Purchasing Entity. Emergency or rush shipping charges shall be added to an invoice as a separate line item. In the event an emergency or rush delivery is required as the result of a Contractor’s error; all shipping cost shall be paid by the Contractor.

6. Manufacturer Warranty
Contractor must honor all manufacturers’ warranties and guarantees on all products offered as part of the Master Agreement. If a product warranty extends beyond the term of the Master Agreement, the Contractor must agree to provide warranty services throughout the life of the warranty.

These parts must be warranted to be free of defective parts and workmanship, provided they are properly installed on the vehicle for which they were intended, for the time and mileage shown in the product literature or catalog.

Statement of warranty is to be provided by Contractor with items delivered under this Master Agreement.

For all items ordered, warranty begins on the date of delivery. 154
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Item Description

7. Return Policy
Items purchased under this Master Agreement may be returned at no cost for a full refund if item is unused, in its original packaging and within thirty (30) calendar days of delivery.

All returns shall be picked up within seven (7) business days of notification. Notification is defined as notice in writing, by facsimile or e- mail.

8. Credit Policy
The Contractor shall offer a full credit/refund for the following items:
• Items shipped in error
• Defective or freight-damaged items
• Items returned within 30 calendar days of delivery

In all cases, the Purchasing Entity shall have the option of taking an exchange, receiving a credit, or receiving a refund.

The Contractor will be responsible for the credit/refund or replacement of all products, including those covered by manufacturer warranties as stated in Exhibit A, Section 6.F.6, Warranty. Contractor cannot require the Purchasing Entity to deal directly with the manufacturer.

9. Product Recall Procedures
Contractor shall provide recall notification, regardless of level, in writing to the Lead State Contract Administrator and each applicable Purchasing Entity through the most expedient method possible. The notices, at a minimum, shall include a complete product description and/or identification, contract number, delivery order number and disposition instructions.

Contractor agrees to use commercially reasonable efforts in identifying the applicable manufacturer in order that the Lead State and any Participating Entities or Purchasing Entities may work with such manufacturer to handle any applicable recall issues.

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G. Invoicing and Payment
Item Description

1. Invoices
Invoices shall be submitted to the Purchasing Entity within seven (7) calendar days from date of delivery. Invoices should include the following at a minimum:
• Agency Order Number (Purchase Order Number)
• Purchasing Entity Name
• Delivery address of the order
• Product(s) description
• Manufacturer’s product(s) number(s)
• Quantities of merchandise issued
• Price(s) per unit(s) and extended price
• Date ordered
• Date delivered
• Listing of returns or back ordered items
• Discounts (i.e. Cash Discounts, Prompt Payment
• Totals for each order. Each invoice shall have a total for all orders, a total for all credits, and amount due from each agency • Any other mutually agreed upon requirements

2. Payment
California state agencies and local government agencies may pay by check, electronic funds transfer, or with the State of California purchase card (CAL-Card). Payments are to be made in accordance with paragraph 30 of the Lead State’s General Provisions (Exhibit C).

Purchasing Entities may pay by check, electronic funds transfer, or by a State Purchasing card (P-card). The Contractor will be solely responsible for the credit card user-handling fee associated with credit card purchases.

Participating States and Entities may have their own payment terms which will be identified within individual Participating Addendums.

3. State of California CAL-Card Invoicing
For orders paid through CAL-Card, invoices are to be processed separately from other payment methods and submitted to the CAL-Card 156
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Item Description
account holder. For additional information, visit the CAL-Card Program website (https://www.dgs.ca.gov/cal-card).

The total invoice amount for each order paid by CAL-Card must reflect a zero balance due or credit, if applicable, and identified as “paid by CAL- Card”.

H. Reporting
Item Description

1. Usage Report (Lead State)
During the term of the Master Agreement, Contractor shall submit usage reports on a quarterly basis to the Lead State Contract Administrator for all California Purchasing Entity sales using the report template provided by the Lead State Contract Administrator.

Usage Report will contain the following data elements at a minimum:
• Ordering Agency Name
• Agency Type (State/Local)
• Purchase Order Number
• Order Date
• Category
• Manufacturer Part Number (OEM #)
• Item Description
• Unit of Measure
• Quantity
• List Price/MSRP
• Unit Price
• Extended Price Paid
• Catalog Version Date
The Lead State Contract Administrator reserves the right to modify the reporting template and require Contractor to provide additional order information during the course of this Agreement.

The report shall be an Excel spreadsheet transmitted electronically to [email protected]
.

The report is due even when there is no activity. Any report that does not follow the required format or that excludes information will be deemed incomplete. Contractor will be responsible for submitting corrected 157
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Item Description
reports within five (5) business days of the date of written notification from the State.

Tax must not be included in the report, even if it is on the purchase order.

Reports are due by the 30th day following a calendar quarter. Failure to meet reporting requirements and submit the reports on a timely basis shall constitute grounds for suspension of the Master Agreement.

Amendment for term extensions may be approved only if all quarterly reports due have been submitted to the Lead State.

The Lead State Contract Administrator will provide the reporting template upon award.

2. Participating State/Entity Reporting
Contractor must provide usage reporting to Participating States and Entities as defined in the individual Participating Addendum.

3. NASPO ValuePoint Summary and Detail Usage Reports
Contractor shall submit specific summary and detailed usage reports directly to NASPO ValuePoint as set forth in Section V of the NASPO ValuePoint Master Agreement Terms (Exhibit D).

The Lead State Contract Administrator will provide the Detail Usage Report template upon award.

4. Ad Hoc Reporting
Contractor shall have the ability to provide ad hoc reports at no cost to the Lead State. Upon written request, Contractor shall permit and provide access to all data that pertains to any procurement action taken by a Purchasing Entity or Participating Entity as a whole. The Lead State or Purchasing Entity may make copies of procurement data in any form and the use of such data shall not be restricted.

Dependent on future reporting requirements, the Lead State may ask that certain reports become standard and delivered to the Lead State on a monthly or quarterly basis.

5. Lead State Administrative Fee
Contractor shall remit a quarterly Lead State administrative fee of 1.25 percent of all goods purchased by California Purchasing Entities for each reporting quarter. Prices submitted shall not reflect the California administrative fee. The Lead State administrative fee shall not be 158
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Item Description
invoiced or charged to the ordering agency and is specific to California only.

This fee will be due to the Lead State on the 30th day following the ending of the quarterly reporting period. Payment of the Lead State administrative fee is due irrespective of payment status on orders or service contracts from a Purchasing Entity.

6. NASPO ValuePoint Administrative Fee
Contractor shall remit a NASPO ValuePoint administrative fee as specified in Section V of the NASPO ValuePoint Master Agreement Terms (Exhibit D).

7. Participating Entity Administrative Fee
If a Participating Entity requires an administrative fee, each fee will be negotiated and articulated in the individual state’s Participating Addendum.

I. Management and Customer Service
Item Description

1. Contractor Responsibility
Contractor shall be responsible for successful contract performance of the Master Agreement and successful performance of any and all of their subcontractors.

Contractor agrees to comply with requirements under the Master Agreement, even if requirements are delegated to subcontractors. All Lead State policies, guidelines, and requirements apply to subcontractors. The prime Contractor and subcontractor(s) shall not in any way represent themselves in the name of the Lead State without prior written approval.

Furthermore, the Lead State will consider the prime Contractor to be the sole point of contact with regard to contractual matters, payments, warranty issues, for the term of the Master Agreement and any extensions.

Use of subcontractors will be addressed within each state’s Participating Addendum.
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Item Description

2. Lead State Contract Administrator
The Lead State Contract Administrator will be the contact person for issues relating to the Master Agreement. Any modifications to the requirements contained in the Master Agreement may only be authorized by the State Contract Administrator or his/her designee through Master Agreement Amendment.

3. Contractor Contract Manager
Contractor will assign a contact person for contract management purposes. The Contractor Contract Manager must be authorized to make decisions on behalf of the Contractor.

4. Changes in Contract Manager
Contractor must notify the Lead State Contract Administrator of Contractor Contract Manager changes in writing within 10 calendar days of the change.

5. Contractor Name Change
An amendment is required to change the Contractor’s name as listed on this agreement.

Contractor shall notify the Lead State of any name change. Upon receipt of legal documentation of the name change the Lead State will process the amendment. Payment of invoices presented with a new name cannot be paid prior to approval of said amendment.

6. Customer Service Unit
Contractor will have a customer service unit that supports this Master Agreement. The customer service unit shall provide office and personnel resources for responding to inquiries, including telephone and email coverage weekdays during business hours.

The customer service unit shall be staffed with individuals that:
• Are trained in the requirements of this contract
• Have the authority to take administrative action to correct problems that may occur
• Are designated for training and general customer service follow-up Contractor shall respond to customer inquiries within one (1) business day of initial contact.

Prior to Master Agreement award, Contractor shall provide customer service information to the Lead State within five (5) business days of written request.
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J. Transition / End of Agreement
Item Description

1. Transition Plan at End of Contract
Contractor agrees that at the end of this Master Agreement, should the Lead State conduct another procurement and award a new Master Agreement, the Contractor will work with the Lead State Contract Administrator, if requested to ensure that an efficient and effective transition takes place.

Upon termination or expiration of the Master Agreement the following will occur:
• All on-line offering systems and Electronic Catalog functions supported and/or available as part of the Master Agreement will cease and be removed from public viewing access without redirecting to another website.
• Customer data/user accounts acquired during the term of the contract shall be destroyed or returned to the Lead State at the request of the Lead State Contract Administrator.
• No references to the Master Agreement shall be made after contract end on the Contractor’s commercial website without permission by the State Contract Administrator.
• All invoicing disputes and/or order tracking will be conducted through the Contractor’s Customer Service Unit via telephone or email.

K. Environmentally Preferable Purchasing
The following requirements are specific to the State of California and may be incorporated within Participating Addenda at the Participating Entity’s discretion.

Item Description

1. Environmentally Preferable Purchasing (EPP)
California Department of General Services is responsible for the implementation of EPP as mandated by the California Public Contract Code (PCC), Chapter 6, sections 12400-12404. Contractor certifies the products or services offered comply with the Federal Trade Commission’s Guidelines for the Use of Environmental Marketing Terms (PCC Section 12404).

2. Post-Consumer Recycled Content (PCRC) Certification California state agencies are required to report purchases made within eleven (11) product categories in the California Department of Resources Recycling and Recovery’s (CalRecycle), State Agency Buy Recycled 161
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Item Description
Campaign (SABRC) in accordance with Public Contract Code sections 12200-12217.In order to comply with those requirements, Contractor will be required to certify in writing the minimum percentage, if not the exact percentage, of post-consumer recycled content (PCRC) material in each of the products ordered, upon request.

3. Green Product Marking and Labeling
Contractor shall identify products that possess third party environmental certifications on the Electronic Catalog.

4. Wheel Weights
California law prohibits the manufacture, sale, or installation of wheel weights containing more than 0.1% lead. California Health and Safety Code Section 25215.6-25215.7 (
https://codes.findlaw.com/ca/health-and-
safety-code/hsc-sect-25215-6.html).

5. Mercury Containing Products
A person cannot sell or distribute for promotional purposes, in California, certain types of new or refurbished products and devices that contain mercury. This law can be found in Health and Safety Code, Division 20, Chapter 6.5; Mercury-Added Thermostats, Relays, Switches, and Measuring Devices (Sections 25214.8.1-25214.8.6).
(
https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-25214-8-

4.html).

6. Consumer Products
Contractor may not sell, supply, offer for sale, or manufacture for sale in California consumer products that do not comply with the Consumer Products Regulatory Program, whose aim is to reduce the amount of volatile organic compounds (VOCs), toxic air contaminants (TACs), and greenhouse gases (GHGs) that are emitted from using chemically formulated consumer products. Background information including enforcement of the program can be found at:
https://ww2.arb.ca.gov/our-
work/programs/consumer-products-program/about.

Regulations for the program can be found in Article 2: Regulation for Reducing Emissions from Consumer Products, commonly referred to as the General Consumer Products Regulation.

7. Brake Friction Material
All motor vehicle brake friction materials sold in California must meet the requirements as identified in California Health and Safety Code Section 25250.51 (Source:
https://dtsc.ca.gov/wp-
content/uploads/sites/31/2018/07/Final_regulation_language_10032016.p df).
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EXHIBIT B: CATEGORY DISCOUNTS
Category Description
Percent
Discount Off
MSRP
1 Air Conditioning 60%
2 Alternators and Starters 60%
3 Batteries 60%
4 Bearings, Ball and Roller 60%
5 Belts and Hoses 60%
6 Brakes 60%
7 Electrical and Ignition 60%
8 Emission, Sensors and Exhaust 60%
9 Engine and Drive Train 60%
10 Filters, Oil, Gas, Air and Transmission 60%
11 Gaskets and Seals 60%
12 Heating and Cooling (Engine) 60%
13 Lamps, Lighting and Mirrors 60%
14 Oils, Chemicals, Fluids and Lubricants 60%
15 Pumps, Fuel and Water 60%
16 Suspension, Shocks, Struts and Steering 60%
17 Wipers/Washers 60%
18 Winter Accessories 50%
19 General Automotive Parts (Aftermarket Automotive
Parts not included in Categories 1-18.) 60%
20 Automotive Repair Shop Supplies and
Equipment/Tools (e.g., cleaning supplies,
wrenches, etc.)
35%

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EXHIBIT C: LEAD STATE GENERAL PROVISIONS
Non-IT General Provisions (6/8/2010) is hereby incorporated by reference and made part of this agreement as if attached hereto. This document can be viewed at:
https://www.dgs.ca.gov/PD/Resources/Page-Content/Procurement-Division-Resources- List-Folder/Model-Contract-Language
These terms are applicable for State of California purchases only.

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EXHIBIT D: NASPO VALUEPOINT MASTER AGREEMENT TERMS
I. Definitions

1.1 Acceptance means acceptance of goods and services as set forth in Section IX of this Master Agreement.

1.2 Contractor means a party to this Master Agreement, whether a person or entity, that delivers goods or performs services under the terms set forth in this Master Agreement.

1.3 Embedded Software means one or more software applications which permanently reside on a computing device.

1.4 Intellectual Property means any and all patents, copyrights, service marks, trademarks, trade secrets, trade names, patentable inventions, or other similar proprietary rights, in tangible or intangible form, and all rights, title, and interest therein.

1.5 Lead State means the State centrally administering any resulting Master Agreement(s) who is a party to this Master Agreement.

1.6 Master Agreement means the underlying agreement executed by and between the Lead State, acting in cooperation with NASPO ValuePoint, and the Contractor, as now or hereafter amended.

1.7 NASPO ValuePoint is a division of the National Association of State Procurement Officials (“NASPO”), a 501(c)(3) limited liability company.

NASPO ValuePoint facilitates administration of the NASPO cooperative group contracting consortium of state chief procurement officials for the benefit of state departments, institutions, agencies, and political subdivisions and other eligible entities (i.e., colleges, school districts, counties, cities, some nonprofit organizations, etc.) for all states, the District of Columbia, and territories of the United States. NASPO ValuePoint is identified in the Master Agreement as the recipient of reports and may perform contract administration functions relating to collecting and receiving reports, as well as other contract administration functions as assigned by the Lead State.

1.8 Order or Purchase Order means any purchase order, sales order, contract or other document used by a Purchasing Entity to order the Products.

1.9 Participating Addendum means a bilateral agreement executed by a Contractor and a Participating Entity incorporating this Master Agreement and any additional Participating Entity-specific language or other requirements (e.g., ordering procedures specific to the Participating Entity, entity-specific terms and conditions, etc.).

1.10 Participating Entity means a state (as well as the District of Columbia and US territories), city, county, district, other political subdivision of a State, or a nonprofit organization under the laws of some states properly authorized to enter into a Participating Addendum, that has executed a Participating Addendum.
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1.11 Participating State means a state that has executed a Participating Addendum or has indicated an intent to execute a Participating Addendum.

1.12 Product or Products and Services means any equipment, software (including embedded software), documentation, service, or other deliverable supplied or created by the Contractor pursuant to this Master Agreement. The term Product includes goods and services.

1.13 Purchasing Entity means a state (as well as the District of Columbia and US territories), city, county, district, other political subdivision of a State, or a nonprofit organization under the laws of some states if authorized by a Participating Addendum, that issues a Purchase Order against the Master Agreement and becomes financially committed to the purchase.

II. Term of Master Agreement

2.1 Initial Term. The initial term and extension options for this Master Agreement is listed in Section 2 of Exhibit A, Scope of Work.

2.2 Amendment Limitations. The terms of this Master Agreement will not be waived, altered, modified, supplemented, or amended in any manner whatsoever without prior written agreement of the Lead State and Contractor.

2.3 Amendment Term. The term of the Master Agreement may be amended past the initial term and stated renewal periods for a reasonable period if in the judgment of the Lead State a follow-on competitive procurement will be unavoidably delayed (despite good faith efforts) beyond the planned date of execution of the follow-on master agreement. This subsection will not be deemed to limit the authority of a Lead State under its state law to otherwise negotiate contract extensions.

III. Order of Precedence

3.1 Order. The following order of precedence shall apply for Orders executed by Purchasing Entities:

3.1.1 A Participating Entity’s Participating Addendum (“PA”);

3.1.2 NASPO ValuePoint Master Agreement, including all attachments thereto;

3.1.3 A Purchase Order issued against the Master Agreement;

3.1.4 The Solicitation or, if separately executed after award, the Lead State’s bilateral agreement that integrates applicable provisions;

3.1.5 Contractor’s response to the Solicitation, as revised (if permitted) and accepted by the Lead State.

3.2 Conflict. These documents will be read to be consistent and complementary. Any conflict among these documents will be resolved by giving priority to these documents in the order listed above. Contractor terms and conditions that apply to this Master Agreement are only those that are expressly accepted by the Lead State and must be in writing and attached to this Master Agreement as an Exhibit or Attachment. 166
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3.3 Participating Addenda. Participating Addenda will not be construed to dimmish, modify, or otherwise derogate any provisions in this Master Agreement between the Lead State and Contractor. Participating Addenda will not include a term of agreement that exceeds the term of the Master Agreement.

IV. Participants and Scope

4.1 Requirement for a Participating Addendum. Contractor may not deliver Products under this Master Agreement until a Participating Addendum acceptable to the Participating Entity and Contractor is executed.

4.2 Applicability of Master Agreement. NASPO ValuePoint Master Agreement Terms and Conditions are applicable to any Order by a Participating Entity (and other Purchasing Entities covered by their Participating Addendum), except to the extent altered, modified, supplemented or amended by a Participating Addendum, subject to Section III. For the purposes of illustration and not limitation, this authority may apply to unique delivery and invoicing requirements, confidentiality requirements, defaults on Orders, governing law and venue relating to Orders by a Participating Entity, indemnification, and insurance requirements. Statutory or constitutional requirements relating to availability of funds may require specific language in some Participating Addenda in order to comply with applicable law. The expectation is that these alterations, modifications, supplements, or amendments will be addressed in the Participating Addendum or, with the consent of the Purchasing Entity and Contractor, may be included in the ordering document (e.g., purchase order or contract) used by the Purchasing Entity to place the Order.

4.3 Authorized Use. Use of specific NASPO ValuePoint Master Agreements by state agencies, political subdivisions and other Participating Entities is subject to applicable state law and the approval of the respective State Chief Procurement Official. Issues of interpretation and eligibility for participation are solely within the authority of the respective State Chief Procurement Official.

4.4 Obligated Entities. Obligations under this Master Agreement are limited to those Participating Entities who have signed a Participating Addendum and Purchasing Entities within the scope of those Participating Addenda.

States or other entities permitted to participate may use an informal competitive process to determine which Master Agreements to participate in through execution of a Participating Addendum. Participating Entities incur no financial obligations on behalf of other Purchasing Entities.

4.5 Notice of Participating Addendum. Contractor shall email a fully executed PDF copy of each Participating Addendum to
[email protected]
to support documentation of participation and
posting in appropriate databases.
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4.6 Eligibility for a Participating Addendum. Eligible entities who are not states may under some circumstances sign their own Participating Addendum, subject to the consent of the Chief Procurement Official of the state where the entity is located. Entities should coordinate requests for such participation through NASPO ValuePoint. Any permission to participate through execution of a Participating Addendum is not a determination that procurement authority exists; the entity must ensure that they have the requisite procurement authority to execute a Participating Addendum.

4.7 Prohibition on Resale. Subject to any specific conditions included in the solicitation or Contractor’s proposal as accepted by the Lead State, or as explicitly permitted in a Participating Addendum, Purchasing Entities may not resell Products purchased under this Master Agreement. Absent any such condition or explicit permission, this limitation does not prohibit:
payments by employees of a Purchasing Entity for Products; sales of Products to the general public as surplus property; and fees associated with inventory transactions with other governmental or nonprofit entities and consistent with a Purchasing Entity’s laws and regulations. Any sale or transfer permitted by this subsection must be consistent with license rights granted for use of intellectual property.

4.8 Individual Customers. Except as may otherwise be agreed to by the Purchasing Entity and Contractor, each Purchasing Entity shall follow the terms and conditions of the Master Agreement and applicable Participating Addendum and will have the same rights and responsibilities for their purchases as the Lead State has in the Master Agreement and as the Participating Entity has in the Participating Addendum, including but not limited to any indemnity or right to recover any costs as such right is defined in the Master Agreement and applicable Participating Addendum for their purchases. Each Purchasing Entity will be responsible for its own charges, fees, and liabilities. The Contractor will apply the charges and invoice each Purchasing Entity individually.

4.9 Release of Information. Throughout the duration of this Master Agreement, Contractor must secure from the Lead State prior approval for the release of information that pertains to the potential work or activities covered by the Master Agreement. This limitation does not preclude publication about the award of the Master Agreement or marketing activities consistent with any proposed and accepted marketing plan.

4.10 No Representations. The Contractor shall not make any representations of NASPO ValuePoint, the Lead State, any Participating Entity, or any Purchasing Entity’s opinion or position as to the quality or effectiveness of the services that are the subject of this Master Agreement without prior written consent.
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V. NASPO ValuePoint Provisions

5.1 Applicability. NASPO ValuePoint is not a party to the Master Agreement.

The terms set forth in Section V are for the benefit of NASPO ValuePoint as a third-party beneficiary of this Master Agreement.

5.2 Administrative Fees

5.2.1 NASPO ValuePoint Fee. Contractor shall pay to NASPO ValuePoint, or its assignee, a NASPO ValuePoint Administrative Fee of one-quarter of one percent (0.25% or 0.0025) no later than sixty (60) days following the end of each calendar quarter. The NASPO ValuePoint Administrative Fee must be submitted quarterly and is based on all sales of products and services under the Master Agreement (less any charges for taxes or shipping). The NASPO ValuePoint Administrative Fee is not negotiable. This fee is to be included as part of the pricing submitted with a vendor’s response to the Lead State’s solicitation.

5.2.2 State Imposed Fees. Some states may require an additional fee be paid directly to the state on purchases made by Purchasing Entities within that state. For all such requests, the fee rate or amount, payment method and schedule for such reports and payments will be incorporated into the applicable Participating Addendum. Unless agreed to in writing by the state, Contractor may not adjust the Master Agreement pricing to include the state fee for purchases made by Purchasing Entities within the jurisdiction of the state. No such agreement will affect the NASPO ValuePoint Administrative Fee percentage or the prices paid by Purchasing Entities outside the jurisdiction of the state requesting the additional fee.

5.3 NASPO ValuePoint Summary and Detailed Usage Reports

5.3.1 Summary Sales Data. The Contractor shall submit quarterly sales reports directly to NASPO ValuePoint using the NASPO ValuePoint Quarterly Sales/Administrative Fee Reporting Tool found at http://calculator.naspovaluepoint.org
. All sales made under this
Master Agreement must be reported as cumulative totals by state.

Contractor must submit a report for each quarter, including quarters during which a Contractor has no sales, in which case this will be indicated in the Reporting Tool. Reports must be submitted no later than thirty (30) days following the end of the calendar quarter (as specified in the reporting tool).

5.3.2 Detailed Sales Data. Contractor shall also report detailed sales data by: (1) state; (2) entity/customer type, e.g. local government, higher education, K12, non-profit; (3) Purchasing Entity name; (4) Purchasing Entity bill-to and ship-to locations; (4) Purchasing Entity and Contractor Purchase Order identifier/number(s); (5) Purchase Order Type (e.g. sales order, credit, return, upgrade, determined by industry practices); (6) Purchase Order date; (7) Ship Date; (8) and 169
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line item description, including product number if used. The report must be submitted in any form required by the solicitation. Reports are due on a quarterly basis and must be received by the Lead State and NASPO ValuePoint Cooperative Development Team no later than thirty (30) days following the end of the calendar quarter.

Reports must be delivered to the Lead State and to the NASPO ValuePoint Cooperative Development Team electronically through a designated portal or other method as determined by the Lead State and NASPO ValuePoint. Detailed sales data reports must include sales information for all sales under Participating Addenda executed under this Master Agreement.

5.3.3 Reporting on Personal Use. Reportable sales for the summary sales data report and detailed sales data report includes sales to employees for personal use where authorized by the solicitation and the Participating Addendum. Report data for employees should be limited to ONLY the state and entity ((state and agency, city, county, school district, etc.) under whose authority the employee is purchasing Product for personal use and the amount of sales. No personal identification numbers (e.g., names, addresses, social security numbers or any other numerical identifier) may be submitted with any report.

5.3.4 Executive Summary. Contractor shall provide the NASPO ValuePoint Cooperative Development Coordinator with an
executive summary each quarter that includes, at a minimum, a list of states with an active Participating Addendum, states that Contractor is in negotiations with and any Participating Addendum roll out or implementation activities and issues. NASPO ValuePoint Cooperative Development Coordinator and Contractor will determine the format and content of the executive summary. The executive summary is due thirty (30) days after the conclusion of each calendar quarter.

5.3.5 Use of Data. Timely submission of these reports is a material requirement of the Master Agreement. The recipient of the reports will have exclusive ownership of the media containing the reports. The Lead State and NASPO ValuePoint shall have a perpetual, irrevocable, non-exclusive, royalty free, transferable right to display, modify, copy, and otherwise use reports, data and information provided under this section.

5.4 NASPO ValuePoint Cooperative Program Marketing, Training, and Performance Review

5.4.1 Staff Education. Contractor shall work cooperatively with NASPO ValuePoint personnel. Contractor shall present plans to NASPO ValuePoint for the education of Contractor’s contract
administrator(s) and sales/marketing workforce regarding the Master Agreement contract, including the competitive nature of 170
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NASPO ValuePoint procurements, the master agreement and participating addendum process, and the manner in which eligible entities can participate in the Master Agreement.

5.4.2 Onboarding Plan. Upon request by NASPO ValuePoint, Contractor shall, as Participating Addendums are executed, provide plans to launch the program for the Participating Entity. Plans will include time frames to launch the agreement and confirmation that the Contractor’s website has been updated to properly reflect the scope and terms of the Master Agreement as available to the Participating Entity and eligible Purchasing Entities.

5.4.3 Annual Contract Performance Review. Contractor shall participate in an annual contract performance review with the Lead State and NASPO ValuePoint, which may at the discretion of the Lead State be held in person and which may include a discussion of marketing action plans, target strategies, marketing materials, Contractor reporting, and timeliness of payment of administration fees.

5.4.4 Use of NASPO ValuePoint Logo. The NASPO ValuePoint logos may not be used by Contractor in sales and marketing until a separate logo use agreement is executed with NASPO ValuePoint.

5.4.5 Most Favored Customer. Contractor shall, within thirty (30) days of their effective date, notify the Lead State and NASPO ValuePoint of any contractual most-favored-customer provisions provided to another competing cooperative. Upon request of the Lead State or NASPO ValuePoint, Contractor shall provide a copy of any such provisions.

5.5 Cancellation. In consultation with NASPO ValuePoint, the Lead State may, in its discretion, cancel the Master Agreement or not exercise an option to renew, when utilization of Contractor’s Master Agreement does not warrant further administration of the Master Agreement. The Lead State may also exercise its right to not renew the Master Agreement if vendor fails to record or report revenue for three consecutive quarters, upon 60-calendar day written notice to the Contractor. Cancellation based on nonuse or under-utilization will not occur sooner than two (2) years after execution of the Master Agreement. This subsection does not limit the discretionary right of either the Lead State to cancel the Master Agreement or terminate for default subject to the terms herein. This subsection also does not limit any right of the Lead State to cancel the Master Agreement under applicable laws.

5.6 Canadian Participation. Subject to the approval of Contractor, any Canadian provincial government or provincially funded entity in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec, or Saskatchewan, and territorial government or territorial government funded entity in the Northwest Territories, Nunavut, or Yukon, including municipalities, 171
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universities, community colleges, school boards, health authorities, housing authorities, agencies, boards, commissions, and crown corporations, may be eligible to use Contractor's Master Agreement.

5.7 Additional Agreement with NASPO. Upon request by NASPO ValuePoint, awarded Contractor shall enter into a direct contractual relationship with NASPO ValuePoint related to Contractor’s obligations to NASPO ValuePoint under the terms of the Master Agreement, the terms of which shall be the same or similar (and not less favorable) than the terms set forth in the Master Agreement.

VI. Pricing, Payment & Leasing

6.1 Pricing. The discounts contained in this Master Agreement represent the minimum discount to any Purchasing Entity.

6.1.1 All discounts must be guaranteed for the entire term of the Master Agreement, including extension years.

6.2 Payment. Unless otherwise agreed upon in a Participating Addendum or Order, Payment after Acceptance will be made within forty-five (45) days following the date the entire order is delivered or the date a correct invoice is received, whichever is later. After 45 days the Contractor may assess overdue account charges up to a maximum rate of one percent per month on the outstanding balance, unless a different late payment amount is specified in a Participating Addendum or Order, or otherwise prescribed by applicable law. Payments will be remitted in the manner specified in the Participating Addendum or Order. Payments may be made via a purchasing card with no additional charge.

6.3 Leasing or Alternative Financing Methods. The procurement and other applicable laws of some Purchasing Entities may permit the use of leasing or alternative financing methods for the acquisition of Products under this Master Agreement. Where the terms and conditions are not otherwise prescribed in an applicable Participating Addendum, the terms and conditions for leasing or alternative financing methods are subject to negotiation between the Contractor and Purchasing Entity.

VII. Ordering

7.1 Order Numbers. Master Agreement, Participating Addendum, and purchase order numbers must be clearly shown on all acknowledgments, packing slips, invoices, and on all correspondence.

7.2 Quotes. Purchasing Entities may define entity-specific or project-specific requirements and informally compete the requirement among companies having a Master Agreement on an “as needed” basis. This procedure may also be used when requirements are aggregated or other firm commitments may be made to achieve reductions in pricing. This procedure may be modified in Participating Addenda and adapted to the Purchasing Entity’s rules and policies. The Purchasing Entity may in its sole discretion determine which Master Agreement Contractors should be 172
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solicited for a quote. The Purchasing Entity may select the quote that it considers most advantageous, cost, and other factors considered.

7.3 Applicable Rules. Each Purchasing Entity will identify and utilize its own appropriate purchasing procedure and documentation. Contractor is expected to become familiar with the Purchasing Entities’ rules, policies, and procedures regarding the ordering of supplies and/or services contemplated by this Master Agreement.

7.4 Required Documentation. Contractor shall not begin work without a valid Purchase Order or other appropriate commitment document under the law of the Purchasing Entity.

7.5 Term of Purchase. Orders may be placed consistent with the terms of this Master Agreement and applicable Participating Addendum during the term of the Master Agreement and Participating Addendum.

7.5.1 Orders must be placed pursuant to this Master Agreement prior to the termination date thereof, but may have a delivery date or performance period up to 120 days past the then-current termination date of this Master Agreement.

7.5.2 Notwithstanding the previous, Orders must also comply with the terms of the applicable Participating Addendum, which may further restrict the period during which Orders may be placed or delivered.

7.5.3 Financial obligations of Purchasing Entities payable after the current applicable fiscal year are contingent upon agency funds for that purpose being appropriated, budgeted, and otherwise made available.

7.5.4 Notwithstanding the expiration, cancellation or termination of this Master Agreement, Contractor shall perform in accordance with the terms of any Orders then outstanding at the time of such expiration or termination. Contractor shall not honor any Orders placed after the expiration, cancellation, or termination of this Master Agreement, or in any manner inconsistent with this Master Agreement’s terms.

7.5.5 Orders for any separate indefinite quantity, task order, or other form of indefinite delivery order arrangement priced against this Master Agreement may not be placed after the expiration or termination of this Master Agreement, notwithstanding the term of any such indefinite delivery order agreement.

7.6 Order Form Requirements. All Orders pursuant to this Master Agreement, at a minimum, must include:

7.6.1 The services or supplies being delivered;

7.6.2 A shipping address and other delivery requirements, if any;

7.6.3 A billing address;

7.6.4 Purchasing Entity contact information;

7.6.5 Pricing consistent with this Master Agreement and applicable Participating Addendum and as may be adjusted by agreement of the Purchasing Entity and Contractor;
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7.6.6 A not-to-exceed total for the products or services being ordered; and

7.6.7 The Master Agreement number or the applicable Participating Addendum number, provided the Participating Addendum
references the Master Agreement number.

7.7 Communication. All communications concerning administration of Orders placed must be furnished solely to the authorized purchasing agent within the Purchasing Entity’s purchasing office, or to such other individual identified in writing in the Order.

7.8 Contract Provisions for Orders Utilizing Federal Funds. Pursuant to Appendix II to 2 Code of Federal Regulations (CFR) Part 200, Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, Orders funded with federal funds may have additional contractual requirements or certifications that must be satisfied at the time the Order is placed or upon delivery. These federal requirements may be proposed by Participating Entities in Participating Addenda and Purchasing Entities for incorporation in Orders placed under this Master Agreement.

VIII. Shipping and Delivery

8.1 Shipping Terms. All deliveries will be F.O.B. destination, freight pre-paid, with all transportation and handling charges paid by the Contractor.

8.1.1 Notwithstanding the above, responsibility and liability for loss or damage will remain the Contractor’s until final inspection and acceptance when responsibility will pass to the Purchasing Entity except as to latent defects, fraud, and Contractor’s warranty obligations.

8.2 Minimum Shipping. The minimum shipment amount, if any, must be contained in the Master Agreement. Any order for less than the specified amount is to be shipped with the freight prepaid and added as a separate item on the invoice. Any portion of an Order to be shipped without transportation charges that is back ordered will be shipped without charge.

8.3 Inside Deliveries. To the extent applicable, all deliveries will be “Inside Deliveries” as designated by a representative of the Purchasing Entity placing the Order. Inside Delivery refers to a delivery to a location other than a loading dock, front lobby, or reception area. Specific delivery instructions will be noted on the order form or Purchase Order. Costs to repair any damage to the building interior (e.g., scratched walls, damage to the freight elevator, etc.) caused by Contractor or Contractor’s carrier will be the responsibility of the Contractor. Immediately upon becoming aware of such damage, Contractor shall notify the Purchasing Entity placing the Order.

8.4 Packaging. All products must be delivered in the manufacturer’s standard package. Costs must include all packing and/or crating charges. Cases must be of durable construction, in good condition, properly labeled and suitable in every respect for storage and handling of contents. Each 174
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shipping carton must be marked with the commodity, brand, quantity, item code number and the Purchasing Entity’s Purchase Order number.

IX. Inspection and Acceptance

9.1 Laws and Regulations. Any and all Products offered and furnished must comply fully with all applicable Federal, State, and local laws and regulations.

9.2 Applicability. Unless otherwise specified in the Master Agreement, Participating Addendum, or ordering document, the terms of this Section IX will apply. This section is not intended to limit rights and remedies under the applicable commercial code.

9.3 Inspection. All Products are subject to inspection at reasonable times and places before Acceptance. Contractor shall provide right of access to the Lead State, or to any other authorized agent or official of the Lead State or other Participating or Purchasing Entity, at reasonable times, to monitor and evaluate performance, compliance, and/or quality assurance requirements under this Master Agreement.

9.3.1 Products that do not meet specifications may be rejected. Failure to reject upon receipt, however, does not relieve the contractor of liability for material (nonconformity that substantial impairs value) latent or hidden defects subsequently revealed when goods are put to use.

9.3.2 Acceptance of such goods may be revoked in accordance with the provisions of the applicable commercial code, and the Contractor is liable for any resulting expense incurred by the Purchasing Entity related to the preparation and shipping of Product rejected and returned, or for which Acceptance is revoked.

9.4 Failure to Conform. If any services do not conform to contract requirements, the Purchasing Entity may require the Contractor to perform the services again in conformity with contract requirements, at no increase in Order amount. When defects cannot be corrected by re-performance, the Purchasing Entity may require the Contractor to take necessary action to ensure that future performance conforms to contract requirements and reduce the contract price to reflect the reduced value of services performed.

9.5 Acceptance Testing. Purchasing Entity may establish a process, in keeping with industry standards, to ascertaining whether the Product meets the standard of performance or specifications prior to Acceptance by the Purchasing Entity.

9.5.1 The Acceptance Testing period will be thirty (30) calendar days, unless otherwise specified, starting from the day after the Product is delivered or, if installed by Contractor, the day after the Product is installed and Contractor certifies that the Product is ready for Acceptance Testing.
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9.5.2 If the Product does not meet the standard of performance or specifications during the initial period of Acceptance Testing, Purchasing Entity may, at its discretion, continue Acceptance Testing on a day-to-day basis until the standard of performance is met.

9.5.3 Upon rejection, the Contractor will have fifteen (15) calendar days to cure. If after the cure period, the Product still has not met the standard of performance or specifications, the Purchasing Entity may, at its option: (a) declare Contractor to be in breach and terminate the Order; (b) demand replacement Product from Contractor at no additional cost to Purchasing Entity; or, (c) continue the cure period for an additional time period agreed upon by the Purchasing Entity and the Contractor.

9.5.4 Contractor shall pay all costs related to the preparation and shipping of Product returned pursuant to the section.

9.5.5 No Product will be deemed Accepted and no charges will be paid until the standard of performance or specification is met.

X. Warranty

10.1 Applicability. Unless otherwise specified in the Master Agreement, Participating Addendum, or ordering document, the terms of this Section X will apply.

10.2 Warranty. The Contractor warrants for a period of one year from the date of Acceptance that: (a) the Product performs according to all specific claims that the Contractor made in its response to the solicitation, (b) the Product is suitable for the ordinary purposes for which such Product is used, (c) the Product is suitable for any special purposes identified in the solicitation or for which the Purchasing Entity has relied on the Contractor’s skill or judgment, (d) the Product is designed and manufactured in a commercially reasonable manner, and (e) the Product is free of defects.

10.3 Breach of Warranty. Upon breach of the warranty set forth above, the Contractor will repair or replace (at no charge to the Purchasing Entity) the Product whose nonconformance is discovered and made known to the Contractor. If the repaired and/or replaced Product proves to be inadequate, or fails of its essential purpose, the Contractor will refund the full amount of any payments that have been made.

10.4 Rights Reserved. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs.

10.5 Warranty Period Start Date. The warranty period will begin upon Acceptance, as set forth in Section IX.
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XI. Product Title

11.1 Conveyance of Title. Upon Acceptance by the Purchasing Entity, Contractor shall convey to Purchasing Entity title to the Product free and clear of all liens, encumbrances, or other security interests.

11.2 Embedded Software. Transfer of title to the Product must include an irrevocable and perpetual license to use any Embedded Software in the Product. If Purchasing Entity subsequently transfers title of the Product to another entity, Purchasing Entity shall have the right to transfer the license to use the Embedded Software with the transfer of Product title. A subsequent transfer of this software license will be at no additional cost or charge to either Purchasing Entity or Purchasing Entity’s transferee.

11.3 License of Pre-Existing Intellectual Property. Contractor grants to the Purchasing Entity a nonexclusive, perpetual, royalty-free, irrevocable, license to use, publish, translate, reproduce, transfer with any sale of tangible media or Product, perform, display, and dispose of the Intellectual Property, and its derivatives, used or delivered under this Master Agreement, but not created under it (“Pre-existing Intellectual Property”).

The Contractor shall be responsible for ensuring that this license is consistent with any third-party rights in the Pre-existing Intellectual Property.

XII. Indemnification

12.1 General Indemnification. The Contractor shall defend, indemnify and hold harmless NASPO, NASPO ValuePoint, the Lead State, Participating Entities, and Purchasing Entities, along with their officers and employees, from and against third-party claims, damages or causes of action including reasonable attorneys’ fees and related costs for any death, injury, or damage to tangible property arising from any act, error, or omission of the Contractor, its employees or subcontractors or volunteers, at any tier, relating to performance under this Master Agreement.

12.2 Intellectual Property Indemnification. The Contractor shall defend, indemnify and hold harmless NASPO, NASPO ValuePoint, the Lead State, Participating Entities, Purchasing Entities, along with their officers and employees ("Indemnified Party"), from and against claims, damages or causes of action including reasonable attorneys’ fees and related costs arising out of the claim that the Product or its use infringes Intellectual Property rights of another person or entity ("Intellectual Property Claim").

12.2.1 The Contractor’s obligations under this section will not extend to any combination of the Product with any other product, system or method, unless the Product, system or method is:

12.2.1.1 provided by the Contractor or the Contractor’s subsidiaries or affiliates;

12.2.1.2 specified by the Contractor to work with the Product;

12.2.1.3 reasonably required to use the Product in its intended manner, and the infringement could not have been
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avoided by substituting another reasonably available
product, system or method capable of performing the
same function; or

12.2.1.4 reasonably expected to be used in combination with the Product.

12.2.2 The Indemnified Party shall notify the Contractor within a reasonable time after receiving notice of an Intellectual Property Claim. Even if the Indemnified Party fails to provide reasonable notice, the Contractor shall not be relieved from its obligations unless the Contractor can demonstrate that it was prejudiced in defending the Intellectual Property Claim resulting in increased expenses or loss to the Contractor. If the Contractor promptly and reasonably investigates and defends any Intellectual Property Claim, it shall have control over the defense and settlement of the Intellectual Property Claim. However, the Indemnified Party must consent in writing for any money damages or obligations for which it may be responsible.

12.2.3 The Indemnified Party shall furnish, at the Contractor’s reasonable request and expense, information and assistance necessary for such defense. If the Contractor fails to vigorously pursue the defense or settlement of the Intellectual Property Claim, the Indemnified Party may assume the defense or
settlement of the Intellectual Property Claim and the Contractor shall be liable for all costs and expenses, including reasonable attorneys’ fees and related costs, incurred by the Indemnified Party in the pursuit of the Intellectual Property Claim.

12.2.4 Unless otherwise set forth herein, Section 12.2 is not subject to any limitations of liability in this Master Agreement or in any other document executed in conjunction with this Master Agreement.

XIII. Insurance

13.1 Term. Contractor shall, during the term of this Master Agreement, maintain in full force and effect, the insurance described in this section. A Participating Entity may negotiate alternative Insurance requirements in their Participating Addendum.

13.2 Class. Contractor shall acquire such insurance from an insurance carrier or carriers licensed to conduct business in each Participating Entity’s state and having a rating of A-, Class VII or better, in the most recently published edition of A.M. Best’s Insurance Reports. Failure to buy and maintain the required insurance may result in this Master Agreement’s termination or, at a Participating Entity’s option, result in termination of its Participating Addendum.

13.3 Coverage. Coverage must be written on an occurrence basis. The minimum acceptable limits will be as indicated below:
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13.3.1 Contractor shall maintain Commercial General Liability insurance covering premises operations, independent
contractors, products and completed operations, blanket contractual liability, personal injury (including death), advertising liability, and property damage, with a limit of not less than $1 million per occurrence and $2 million general aggregate;

13.3.2 Contractor shall maintain motor vehicle liability with limits not less than $1,000,000 combined single limit per accident. Such insurance shall cover liability arising out of a motor vehicle including owned, hired, and non-owned motor vehicles.

13.3.3 Contractor must comply with any applicable State Workers Compensation or Employers Liability Insurance requirements.

13.4 Notice of Cancellation. Contractor shall pay premiums on all insurance policies. Contractor shall provide notice to a Participating Entity who is a state within five (5) business days after Contractor is first aware of expiration, cancellation or nonrenewal of such policy or is first aware that cancellation is threatened or expiration, nonrenewal or expiration otherwise may occur.

13.5 Notice of Endorsement. Prior to commencement of performance, Contractor shall provide to the Lead State a written endorsement to the Contractor’s general liability insurance policy or other documentary evidence acceptable to the Lead State that (1) provides that written notice of cancellation will be delivered in accordance with the policy provisions, and (2) provides that the Contractor’s liability insurance policy will be primary, with any liability insurance of any Participating State as secondary and noncontributory.

13.6 Participating Entities. Contractor shall provide to Participating States and Participating Entities the same insurance obligations and documentation as those specified in Section XIII, except the endorsement is provided to the applicable Participating State or Participating Entity.

13.7 Furnishing of Certificates. Contractor shall furnish to the Lead State copies of certificates of all required insurance in a form sufficient to show required coverage within thirty (30) calendar days of the execution of this Master Agreement and prior to performing any work. Copies of renewal certificates of all required insurance will be furnished within thirty (30) days after any renewal date to the applicable state Participating Entity. Failure to provide evidence of coverage may, at the sole option of the Lead State, or any Participating Entity, result in this Master Agreement’s termination or the termination of any Participating Addendum.

13.8 Disclaimer. Insurance coverage and limits will not limit Contractor’s liability and obligations under this Master Agreement, any Participating Addendum, or any Purchase Order.
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XIV. General Provisions

14.1 Records Administration and Audit

14.1.1 The Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Agreement and Orders placed by Purchasing Entities under it to the extent and in such detail as will adequately reflect performance and administration of payments and fees. Contractor shall permit the Lead State, a Participating Entity, a Purchasing Entity, the federal government (including its grant awarding entities and the U.S. Comptroller General), and any other duly authorized agent of a
governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor's books, documents, papers and records directly pertinent to this Master Agreement or orders placed by a Purchasing Entity under it for the purpose of making audits, examinations, excerpts, and transcriptions. This right will survive for a period of six (6) years following termination of this Agreement or final payment for any order placed by a
Purchasing Entity against this Master Agreement, whichever is later, or such longer period as is required by the Purchasing Entity’s state statutes, to assure compliance with the terms hereof or to evaluate performance hereunder.

14.1.2 Without limiting any other remedy available to any governmental entity, the Contractor shall reimburse the applicable Lead State, Participating Entity, or Purchasing Entity for any overpayments inconsistent with the terms of the Master Agreement or Orders or underpayment of fees found as a result of the examination of the Contractor’s records.

14.1.3 The rights and obligations herein exist in addition to any quality assurance obligation in the Master Agreement that requires the Contractor to self-audit contract obligations and that permits the Lead State to review compliance with those obligations.

14.2 Confidentiality, Non-Disclosure, and Injunctive Relief

14.2.1 Confidentiality. Contractor acknowledges that it and its employees or agents may, in the course of providing a Product under this Master Agreement, be exposed to or acquire
information that is confidential to Purchasing Entity or Purchasing Entity’s clients.

14.2.1.1 Any and all information of any form that is marked as confidential or would by its nature be deemed
confidential obtained by Contractor or its employees
or agents in the performance of this Master
Agreement, including but not necessarily limited to (1) any Purchasing Entity’s records, (2) personnel
records, and (3) information concerning individuals, is 180
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confidential information of Purchasing Entity
(“Confidential Information”).

14.2.1.2 Any reports or other documents or items (including software) that result from the use of the Confidential
Information by Contractor shall be treated in the same
manner as the Confidential Information.

14.2.1.3 Confidential Information does not include information that (1) is or becomes (other than by disclosure by
Contractor) publicly known; (2) is furnished by
Purchasing Entity to others without restrictions similar to those imposed by this Master Agreement; (3) is
rightfully in Contractor’s possession without the
obligation of nondisclosure prior to the time of its
disclosure under this Master Agreement; (4) is
obtained from a source other than Purchasing Entity
without the obligation of confidentiality, (5) is
disclosed with the written consent of Purchasing
Entity; or (6) is independently developed by
employees, agents or subcontractors of Contractor
who can be shown to have had no access to the
Confidential Information.

14.2.2 Non-Disclosure. Contractor shall hold Confidential Information in confidence, using at least the industry standard of
confidentiality, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than what is necessary to the performance of Orders placed under this Master Agreement.

14.2.2.1 Contractor shall advise each of its employees and agents of their obligations to keep Confidential
Information confidential. Contractor shall use
commercially reasonable efforts to assist Purchasing
Entity in identifying and preventing any unauthorized
use or disclosure of any Confidential Information.

14.2.2.2 Without limiting the generality of the foregoing, Contractor shall advise Purchasing Entity, applicable
Participating Entity, and the Lead State immediately if Contractor learns or has reason to believe that any
person who has had access to Confidential Information
has violated or intends to violate the terms of this
Master Agreement, and Contractor shall at its expense
cooperate with Purchasing Entity in seeking injunctive
or other equitable relief in the name of Purchasing
Entity or Contractor against any such person.
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14.2.2.3 Except as directed by Purchasing Entity, Contractor will not at any time during or after the term of this
Master Agreement disclose, directly or indirectly, any
Confidential Information to any person, except in
accordance with this Master Agreement, and that upon
termination of this Master Agreement or at Purchasing
Entity’s request, Contractor shall turn over to
Purchasing Entity all documents, papers, and other
matter in Contractor's possession that embody
Confidential Information.

14.2.2.4 Notwithstanding the foregoing, Contractor may keep one copy of such Confidential Information necessary
for quality assurance, audits, and evidence of the
performance of this Master Agreement.

14.2.3 Injunctive Relief. Contractor acknowledges that Contractor’s breach of Section 14.2 would cause irreparable injury to the Purchasing Entity that cannot be inadequately compensated in monetary damages. Accordingly, Purchasing Entity may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Purchasing Entity and are reasonable in scope and content.

14.2.4 Purchasing Entity Law. These provisions will be applicable only to extent they are not in conflict with the applicable public disclosure laws of any Purchasing Entity.

14.2.5 NASPO ValuePoint. The rights granted to Purchasing Entities and Contractor’s obligations under this section will also extend to NASPO ValuePoint’s Confidential Information, including but not limited to Participating Addenda, Orders or transaction data relating to Orders under this Master Agreement that identify the entity/customer, Order dates, line-item descriptions and volumes, and prices/rates. This provision does not apply to disclosure to the Lead State, a Participating State, or any governmental entity exercising an audit, inspection, or examination pursuant to this Master Agreement. To the extent permitted by law, Contractor shall notify the Lead State of the identify of any entity seeking access to the Confidential Information described in this subsection.

14.2.6 Public Information. This Master Agreement and all related documents are subject to disclosure pursuant to the Lead State’s public information laws.
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14.3 Assignment/Subcontracts

14.3.1 Contractor shall not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this Master Agreement, in whole or in part, without the prior written approval of the Lead State.

14.3.2 The Lead State reserves the right to assign any rights or duties, including written assignment of contract administration duties, to NASPO ValuePoint and other third parties.

14.4 Changes in Contractor Representation. The Contractor must, within ten (10) calendar days, notify the Lead State in writing of any changes in the Contractor’s key administrative personnel managing the Master Agreement. The Lead State reserves the right to approve or reject changes in key personnel, as identified in the Contractor’s proposal. The Contractor shall propose replacement key personnel having substantially equal or better education, training, and experience as was possessed by the key person proposed and evaluated in the Contractor’s proposal.

14.5 Independent Contractor. Contractor is an independent contractor.

Contractor has no authorization, express or implied, to bind the Lead State, Participating States, other Participating Entities, or Purchasing Entities to any agreements, settlements, liability or understanding whatsoever, and shall not to hold itself out as agent except as expressly set forth herein or as expressly set forth in an applicable Participating Addendum or Order.

14.6 Cancellation. Unless otherwise set forth herein, this Master Agreement may be canceled by either party upon sixty (60) days’ written notice prior to the effective date of the cancellation. Further, any Participating Entity may cancel its participation upon thirty (30) days’ written notice, unless otherwise limited or stated in the Participating Addendum. Cancellation may be in whole or in part. Any cancellation under this provision will not affect the rights and obligations attending Orders outstanding at the time of cancellation, including any right of a Purchasing Entity to indemnification by the Contractor, rights of payment for Products delivered and accepted, rights attending any warranty or default in performance in association with any Order, and requirements for records administration and audit. Cancellation of the Master Agreement due to Contractor default may be immediate.

14.7 Force Majeure. Neither party to this Master Agreement shall be held responsible for delay or default caused by fire, riot, unusually severe weather, other acts of God, or acts of war which are beyond that party’s reasonable control. The Lead State may terminate this Master Agreement upon determining such delay or default will reasonably prevent successful performance of the Master Agreement.

14.8 Defaults and Remedies

14.8.1 The occurrence of any of the following events will be an event of default under this Master Agreement:
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14.8.1.1 Nonperformance of contractual requirements;

14.8.1.2 A material breach of any term or condition of this Master Agreement;

14.8.1.3 Any certification, representation or warranty by Contractor in response to the solicitation or in this
Master Agreement that proves to be untrue or
materially misleading;

14.8.1.4 Institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar officer for Contractor or any of its property, which is not vacated or fully stayed within thirty (30) calendar days after the institution or occurrence thereof; or

14.8.1.5 Any default specified in another section of this Master Agreement.

14.8.2 Upon the occurrence of an event of default, the Lead State shall issue a written notice of default, identifying the nature of the default, and providing a period of fifteen (15) calendar days in which Contractor shall have an opportunity to cure the default.

The Lead State shall not be required to provide advance written notice or a cure period and may immediately terminate this Master Agreement in whole or in part if the Lead State, in its sole discretion, determines that it is reasonably necessary to preserve public safety or prevent immediate public crisis. Time allowed for cure will not diminish or eliminate Contractor’s liability for damages, including liquidated damages to the extent provided for under this Master Agreement.

14.8.3 If Contractor is afforded an opportunity to cure and fails to cure the default within the period specified in the written notice of default, Contractor shall be in breach of its obligations under this Master Agreement and the Lead State shall have the right to exercise any or all of the following remedies:

14.8.3.1 Any remedy provided by law;

14.8.3.2 Termination of this Master Agreement and any related Contracts or portions thereof;

14.8.3.3 Assessment of liquidated damages as provided in this Master Agreement;

14.8.3.4 Suspension of Contractor from being able to respond to future bid solicitations;

14.8.3.5 Suspension of Contractor’s performance; and

14.8.3.6 Withholding of payment until the default is remedied.

14.8.4 Unless otherwise specified in the Participating Addendum, in the event of a default under a Participating Addendum, a
Participating Entity shall provide a written notice of default as described in this section and shall have all of the rights and 184
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remedies under this paragraph regarding its participation in the Master Agreement, in addition to those set forth in its Participating Addendum. Unless otherwise specified in an Order, a Purchasing Entity shall provide written notice of default as described in this section and have all of the rights and remedies under this paragraph and any applicable Participating Addendum with respect to an Order placed by the Purchasing Entity. Nothing in these Master Agreement Terms and
Conditions will be construed to limit the rights and remedies available to a Purchasing Entity under the applicable
commercial code.

14.9 Waiver of Breach. Failure of the Lead State, Participating Entity, or Purchasing Entity to declare a default or enforce any rights and remedies will not operate as a waiver under this Master Agreement, any Participating Addendum, or any Purchase Order. Any waiver by the Lead State, Participating Entity, or Purchasing Entity must be in writing. Waiver by the Lead State or Participating Entity of any default, right or remedy under this Master Agreement or Participating Addendum, or by Purchasing Entity with respect to any Purchase Order, or breach of any terms or requirements of this Master Agreement, a Participating Addendum, or Purchase Order will not be construed or operate as a waiver of any subsequent default or breach of such term or requirement, or of any other term or requirement under this Master Agreement, any Participating Addendum, or any Purchase Order.

14.10 Debarment. The Contractor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in public procurement or contracting by any governmental department or agency. This certification represents a recurring certification made at the time any Order is placed under this Master Agreement. If the Contractor cannot certify this statement, attach a written explanation for review by the Lead State.

14.11 No Waiver of Sovereign Immunity

14.11.1 In no event will this Master Agreement, any Participating Addendum or any contract or any Purchase Order issued
thereunder, or any act of the Lead State, a Participating Entity, or a Purchasing Entity be a waiver of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from any claim or from the jurisdiction of any court.

14.11.2 This section applies to a claim brought against the Participating Entities who are states only to the extent Congress has appropriately abrogated the state’s sovereign immunity and is not consent by the state to be sued in federal court. This section is also not a waiver by the state of any form of 185
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immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the
Constitution of the United States.

14.12 Governing Law and Venue

14.12.1 The procurement, evaluation, and award of the Master Agreement will be governed by and construed in accordance with the laws of the Lead State sponsoring and administering the procurement. The construction and effect of the Master Agreement after award will be governed by the law of the state serving as Lead State. The construction and effect of any Participating Addendum or Order against the Master Agreement will be governed by and construed in accordance with the laws of the Participating Entity’s or Purchasing Entity’s state.

14.12.2 Unless otherwise specified in the RFP, the venue for any protest, claim, dispute or action relating to the procurement, evaluation, and award is in the state serving as Lead State.

Venue for any claim, dispute or action concerning the terms of the Master Agreement will be in the state serving as Lead State.

Venue for any claim, dispute, or action concerning any Order placed against the Master Agreement or the effect of a
Participating Addendum will be in the Purchasing Entity’s state.

14.12.3 If a claim is brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for (in decreasing order of priority): the Lead State for claims relating to the procurement, evaluation, award, or contract performance or administration if the Lead State is a party; a Participating State if a named party; the state where the Participating Entity or Purchasing Entity is located if either is a named party.

14.13 Assignment of Antitrust Rights. Contractor irrevocably assigns to a Participating Entity who is a state any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of state or federal antitrust laws (15 U.S.C. § 1-15 or a Participating Entity’s state antitrust provisions), as now in effect and as may be amended from time to time, in connection with any goods or services provided in that state for the purpose of carrying out the Contractor's obligations under this Master Agreement or Participating Addendum, including, at the Participating Entity's option, the right to control any such litigation on such claim for relief or cause of action.

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EXHIBIT A: SCOPE OF WORK

1. AGREEMENT OVERVIEW
This Scope of Work reflects the products and supplies to be provided by Parts Authority, LLC hereinafter referred to as the “Contractor,” for the State of California hereinafter referred to as the “Lead State” and all other Participating States and Entities, for the Automotive Parts Master Agreement (“Agreement” or “Master Agreement”).

Contractor shall permit State of California agencies, California local governmental agencies and NASPO ValuePoint Participating States and Entities to participate under this Master Agreement. Subject to the approval of the Contractor, any Canadian provincial government or provincially funded entity in Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta, Northwest Territories, Nunavut, Yukon, and Newfoundland and Labrador, including municipalities, universities, community colleges, school boards, health authorities, housing authorities, agencies, boards, commissions, and crown corporations, may be eligible to use Contractor's Master Agreement.

Contractor will provide the entire portfolio of quality Automotive Parts to the Lead State, Participating States and Entities and local governmental agencies in a timely and efficient manner. Contractor will be the primary point of contact for data collection, reporting, and distribution of Automotive Parts to the Lead State and all other Participating States and Entities.

2. AGREEMENT TERM
The term of this Agreement is for a three (3) year period from the date of Master Agreement execution with the option to extend one (1) additional two (2) year period at the discretion of the Lead State. Extensions will be made by amendment to the Agreement at the same contracted discounts, terms and conditions.

3. RESPONSIBILITIES
A. Contractor shall meet all requirements identified in this Agreement.

B. Contractor will provide a Contract Manager in accordance with Exhibit A, Section

6.I.3 that will work with the Lead State Contract Administrator to fully implement and manage the Agreement.

C. Contractor will work closely with subcontractors (if applicable) to fully implement and manage this Agreement in accordance with Exhibit A, Section 6.I.1.

D. Contractor shall make available to the Lead State, technically competent personnel to accomplish the tasks and deliverables for the implementation and management of the Agreement.
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E. Contractor shall promptly notify the Lead State Contract Administrator in writing of any unresolved issues or problems related to the Agreement that have been outstanding for more than five (5) business days.

4. REQUIREMENTS
A. Available Product Categories
Contractor shall provide products for Automotive Parts categories at the discount provided in Exhibit B, Category Discounts. Products outside the scope of categories listed in Exhibit B may not be purchased from the Master Agreement.

B. Electronic Catalog
Item Description

1. Automotive Parts Electronic Catalog
Contractor shall develop and maintain an electronic catalog for use by Purchasing Entities. Contractor’s electronic catalog must be separate from the Contractor’s commercially available (i.e., public) online catalog and shall contain only category items and pricing as specified in the awarded Master Agreement. No other items or pricing may be shown in the electronic catalog without written approval from the Lead State Contract Administrator.

2. Electronic Catalog/Contract Website Contents
The Lead State Contract Administrator will review and determine acceptability of the electronic catalog format and data. The Electronic Catalog shall contain the following data elements at minimum:
• Item descriptions
• Contractor’s stock keeping number (SKU)
• Unit of measure (UOM)
• Quantity in the UOM
• List Price/MSRP
• Master Agreement price
• Quote generation (if applicable)
• Publicly available OEM price lists (current and archives) Within 30 calendar days of notice of award, Contractor will be required to provide the Electronic Catalog for Lead State Contract Administrator approval.

3. Availability
The Electronic Catalog shall be available twenty-four (24) hours per day, seven (7) days per week, except for regularly scheduled maintenance 189
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Item Description
times. Contractor shall not have any catalog viewing access restrictions for Participating States or Entities.

C. Pricing
Item Description

1. Category Discounts
Master Agreement employs a discount-off Manufacturer Suggested Retail Price (MSRP) structure. Category discounts outlined in Exhibit B, Category Discounts, will remain firm for the entire term of the agreement, including extension periods. However, Contractors may offer lower pricing on a per order basis to Purchasing Entities.

In the event a product falls into two or more categories the highest category discount will be applied.

2. Promotions
Contractor may offer promotional discounts, including but not limited to statewide promotional discounts, customer location specific discounts, bulk discounts, or spot discounts.

During special pricing promotions, the Contractor shall offer Participating Entities the promotional pricing or the category discount percentage off MSRP, whichever is lower.

Promotional pricing shall not be cause for a permanent change in pricing.

Promotional items shall come with all benefits of the Master Agreement terms and conditions and shall include all provisions such as warranty and delivery.

D. Retail Sales Establishments
Item Description

1. Retail Sales Establishments
Retail Sales Establishments are defined as any facilities that the Contractor uses on a regular basis to warehouse and/or sell merchandise, and at which the Contractor conducts regular business transactions at either the retail or wholesale level. Contractor facility should provide:
• Walk-in and will-call order system during regular work hours. • C ustomer service associate to support walk-in and will-call order system.
• Itemized sales receipts for all walk-in and will-call transactions. 190
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Item Description
• Availability of delivery.
• Acceptance of Purchasing Card.

These facilities shall be operated in accordance with state law and comply with all zoning requirements as implemented by local, county or state governments. Examples of unacceptable retail sales establishments include houses, garages, or storage rental facilities.

Contractor shall provide a list of authorized retail sales establishment locations to be used on this Master Agreement to the Lead State within 15 calendar days of notice of award.

If Contractor is offering Retail Sales Establishments, Contractor shall ensure state agencies, local government agencies and other Participating Entities will receive Master Agreement pricing when purchasing items through Retail Sales Establishments.

E. Ordering
Item Description

1. Ordering Methods
Contractor shall accept orders through the following methods:
• Electronic (email) – An email address to be used by
Purchasing Entities for placing orders must be in place before the commencement of this Master Agreement.
• Facsimile – A toll-free facsimile number to be used by Purchasing Entities for placing orders must be in place before the commencement of this Master Agreement. Facsimile orders must be accepted between the hours of 8:00 AM and 5:00 PM, Monday through Friday in the time zone the order is placed. • U.S. Mail – Contractor must have the capability to receive orders by mail in place before the commencement of this Master Agreement.
• Over-the-counter/Walk-In – Contractor shall provide over-the- counter order and delivery at all commercial locations. See Exhibit A, Section 6.D (Retail Sales Establishments).
• Online (internet) – Contractor’s Electronic Catalog website to be used by Purchasing Entities for placing orders must be in 191
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Item Description
place before the commencement of this Master Agreement. See Exhibit A, Section 6.B (Electronic Catalog).

Prior to contract award, Contractor shall provide the ordering information within five (5) business days of the Lead State’s request.

2. Purchase Execution
California state agencies must submit orders on a Purchasing Authority Purchase Order (Std. 65) or using the FI$Cal Purchase Order process in accordance with posted User Instructions.

Local government agencies and other Purchasing Entities may use their own approved Purchase Order document process as addressed in their Participating Addendum.

Contractor shall not accept purchase documents from Purchasing Entities that are incomplete or contain items outside the scope of the Master Agreement.

3. Minimum Order (M)
There is no minimum order.

4. Order Acknowledgement
The Contractor must provide Purchasing Entities with an order receipt acknowledgment via e-mail/facsimile within one (1) business day after receipt of an order. The acknowledgement will include:

• Purchasing Entity Name
• Purchase Order Number
• Description of Goods / SKUs
• Total Cost
• Anticipated Delivery Date
• Identification of any Out of Stock/Discontinued Items

5. Out-of-Stock Remedy
Upon receipt of order acknowledgment identifying out of stock items, the Purchasing Entity shall have the following options:
• Request back order
• Cancel the item from the order
Upon request, Contractor shall provide updates on back ordered items to the Purchasing Entity. Contractor is not permitted to make 192
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Item Description
substitutions or cancellations without authorization from the Purchasing Entity.

6. Core Exchange/Charges
All parts supplied which require core exchange shall be monitored by the Contractor to ensure proper cores are returned. Core credit is to be issued the same day as received. Any core that is not usable or not returned shall be billed at the core price listed in the manufacturer’s price sheet for that particular part.

7. Remanufactured Parts
Contractor may provide remanufactured parts when new parts are not available with authorization from the Purchasing Entity. Used, previously installed or shop-worn parts shall not be accepted.

F. Delivery
Item Description

1. Delivery Locations
Deliveries are to be made to the Purchasing Entities’ location specified on the individual order, which may include, but not be limited to inside buildings, high-rise office buildings, and receiving docks.

2. Delivery Schedule
Delivery of ordered product shall be completed within two (2) business days after receipt of an order, unless otherwise agreed to by the Purchasing Entity.

Since receiving hours for each Purchasing Entity will vary by facility, it will be the Contractor’s responsibility to check with each facility for their specific receiving hours before delivery occurs.

Contractor must notify the Purchasing Entity within 12 hours of scheduled delivery time, if delivery cannot be made within the time frame specified on the order.

3. Delivery from Retail Sales Establishments
Delivery of standard in-stock items to locations within five (5) miles from company’s retail business establishment shall be accomplished within 45 minutes. Delivery outside the five (5) mile range will be accomplished by a scheduled delivery.
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Item Description

4. Security Requirements for Institutions
Deliveries may be made to locations inside secure institutional grounds (such as state prisons) that require prior clearances to be made for delivery drivers.

Contractor will be responsible for contacting the secure location for security clearance procedures, hours of operation for deliveries and service, dress code, and other rules of delivery. These security clearance procedures may vary from facility to facility.

Deliveries that are delayed due to drivers not being cleared to enter institutional grounds may cause the contractor to be declared in default of contract requirements.

5. Free on Board (F.O.B.) Destination (Shipping Terms) All prices offered shall be F.O.B. destination, freight prepaid by the Contractor, to the Purchasing Entity’s final receiving point. Responsibility and liability for loss or damage for all orders shall remain with the Contractor until final inspection and acceptance, when all responsibility shall pass to the ordering organization, except the responsibility for latent defects, fraud, and the warranty obligations.

All emergency or rush deliveries that require special shipping and handling should be at the ordering entities expense, with prior approval from the Purchasing Entity. Emergency or rush shipping charges shall be added to an invoice as a separate line item. In the event an emergency or rush delivery is required as the result of a Contractor’s error; all shipping cost shall be paid by the Contractor.

6. Manufacturer Warranty
Contractor must honor all manufacturers’ warranties and guarantees on all products offered as part of the Master Agreement. If a product warranty extends beyond the term of the Master Agreement, the Contractor must agree to provide warranty services throughout the life of the warranty.

These parts must be warranted to be free of defective parts and workmanship, provided they are properly installed on the vehicle for which they were intended, for the time and mileage shown in the product literature or catalog.

Statement of warranty is to be provided by Contractor with items delivered under this Master Agreement.

For all items ordered, warranty begins on the date of delivery. 194
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Item Description

7. Return Policy
Items purchased under this Master Agreement may be returned at no cost for a full refund if item is unused, in its original packaging and within thirty (30) calendar days of delivery.

All returns shall be picked up within seven (7) business days of notification. Notification is defined as notice in writing, by facsimile or e- mail.

8. Credit Policy
The Contractor shall offer a full credit/refund for the following items:
• Items shipped in error
• Defective or freight-damaged items
• Items returned within 30 calendar days of delivery

In all cases, the Purchasing Entity shall have the option of taking an exchange, receiving a credit, or receiving a refund.

The Contractor will be responsible for the credit/refund or replacement of all products, including those covered by manufacturer warranties as stated in Exhibit A, Section 6.F.6, Warranty. Contractor cannot require the Purchasing Entity to deal directly with the manufacturer.

9. Product Recall Procedures
Contractor shall provide recall notification, regardless of level, in writing to the Lead State Contract Administrator and each applicable Purchasing Entity through the most expedient method possible. The notices, at a minimum, shall include a complete product description and/or identification, contract number, delivery order number and disposition instructions.

Contractor agrees to use commercially reasonable efforts in identifying the applicable manufacturer in order that the Lead State and any Participating Entities or Purchasing Entities may work with such manufacturer to handle any applicable recall issues.

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G. Invoicing and Payment
Item Description

1. Invoices
Invoices shall be submitted to the Purchasing Entity within seven (7) calendar days from date of delivery. Invoices should include the following at a minimum:
• Agency Order Number (Purchase Order Number)
• Purchasing Entity Name
• Delivery address of the order
• Product(s) description
• Manufacturer’s product(s) number(s)
• Quantities of merchandise issued
• Price(s) per unit(s) and extended price
• Date ordered
• Date delivered
• Listing of returns or back ordered items
• Discounts (i.e. Cash Discounts, Prompt Payment
• Totals for each order. Each invoice shall have a total for all orders, a total for all credits, and amount due from each agency • Any other mutually agreed upon requirements

2. Payment
California state agencies and local government agencies may pay by check, electronic funds transfer, or with the State of California purchase card (CAL-Card). Payments are to be made in accordance with paragraph 30 of the Lead State’s General Provisions (Exhibit C).

Purchasing Entities may pay by check, electronic funds transfer, or by a State Purchasing card (P-card). The Contractor will be solely responsible for the credit card user-handling fee associated with credit card purchases.

Participating States and Entities may have their own payment terms which will be identified within individual Participating Addendums.

3. State of California CAL-Card Invoicing
For orders paid through CAL-Card, invoices are to be processed separately from other payment methods and submitted to the CAL-Card 196
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Item Description
account holder. For additional information, visit the CAL-Card Program website (ht tps://www.dgs.ca.gov/cal -card).

The total invoice amount for each order paid by CAL-Card must reflect a zero balance due or credit, if applicable, and identified as “paid by CAL- Card”.

H. R eporting
Item Description

1. Usage Report (Lead State)
During the term of the Master Agreement, Contractor shall submit usage reports on a quarterly basis to the Lead State Contract Administrator for all California Purchasing Entity sales using the report template provided by the Lead State Contract Administrator.

Usage Report will contain the following data elements at a minimum:
• Ordering Agency Name
• Agency Type (State/Local)
• Purchase Order Number
• Order Date
• Category
• Manufacturer Part Number (OEM #)
• Item Description
• Unit of Measure
• Quantity
• List Price/MSRP
• Unit Price
• Extended Price Paid
• Catalog Version Date
The Lead State Contract Administrator reserves the right to modify the reporting template and require Contractor to provide additional order information during the course of this Agreement.

The report shall be an Excel spreadsheet transmitted electronically to [email protected]
.

The report is due even when there is no activity. Any report that does not follow the required format or that excludes information will be deemed incomplete. Contractor will be responsible for submitting corrected 197
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Item Description
reports within five (5) business days of the date of written notification from the State.

Tax must not be included in the report, even if it is on the purchase order.

Reports are due by the 30th day following a calendar quarter. Failure to meet reporting requirements and submit the reports on a timely basis shall constitute grounds for suspension of the Master Agreement.

Amendment for term extensions may be approved only if all quarterly reports due have been submitted to the Lead State.

The Lead State Contract Administrator will provide the reporting template upon award.

2. Participating State/Entity Reporting
Contractor must provide usage reporting to Participating States and Entities as defined in the individual Participating Addendum.

3. NASPO ValuePoint Summary and Detail Usage Reports
Contractor shall submit specific summary and detailed usage reports directly to NASPO ValuePoint as set forth in Section V of the NASPO ValuePoint Master Agreement Terms (Exhibit D).

The Lead State Contract Administrator will provide the Detail Usage Report template upon award.

4. Ad Hoc Reporting
Contractor shall have the ability to provide ad hoc reports at no cost to the Lead State. Upon written request, Contractor shall permit and provide access to all data that pertains to any procurement action taken by a Purchasing Entity or Participating Entity as a whole. The Lead State or Purchasing Entity may make copies of procurement data in any form and the use of such data shall not be restricted.

Dependent on future reporting requirements, the Lead State may ask that certain reports become standard and delivered to the Lead State on a monthly or quarterly basis.

5. Lead State Administrative Fee
Contractor shall remit a quarterly Lead State administrative fee of 1.25 percent of all goods purchased by California Purchasing Entities for each reporting quarter. Prices submitted shall not reflect the California administrative fee. The Lead State administrative fee shall not be 198
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Item Description
invoiced or charged to the ordering agency and is specific to California only.

This fee will be due to the Lead State on the 30th day following the ending of the quarterly reporting period. Payment of the Lead State administrative fee is due irrespective of payment status on orders or service contracts from a Purchasing Entity.

6. NASPO ValuePoint Administrative Fee
Contractor shall remit a NASPO ValuePoint administrative fee as specified in Section V of the NASPO ValuePoint Master Agreement Terms (Exhibit D).

7. Participating Entity Administrative Fee
If a Participating Entity requires an administrative fee, each fee will be negotiated and articulated in the individual state’s Participating Addendum.

I. M anagement and Customer Service
Item Description

1. Contractor Responsibility
Contractor shall be responsible for successful contract performance of the Master Agreement and successful performance of any and all of their subcontractors.

Contractor agrees to comply with requirements under the Master Agreement, even if requirements are delegated to subcontractors. All Lead State policies, guidelines, and requirements apply to subcontractors. The prime Contractor and subcontractor(s) shall not in any way represent themselves in the name of the Lead State without prior written approval.

Furthermore, the Lead State will consider the prime Contractor to be the sole point of contact with regard to contractual matters, payments, warranty issues, for the term of the Master Agreement and any extensions.

Use of subcontractors will be addressed within each state’s Participating Addendum.
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Item Description

2. Lead State Contract Administrator
The Lead State Contract Administrator will be the contact person for issues relating to the Master Agreement. Any modifications to the requirements contained in the Master Agreement may only be authorized by the State Contract Administrator or his/her designee through Master Agreement Amendment.

3. Contractor Contract Manager
Contractor will assign a contact person for contract management purposes. The Contractor Contract Manager must be authorized to make decisions on behalf of the Contractor.

4. Changes in Contract Manager
Contractor must notify the Lead State Contract Administrator of Contractor Contract Manager changes in writing within 10 calendar days of the change.

5. Contractor Name Change
An amendment is required to change the Contractor’s name as listed on this agreement.

Contractor shall notify the Lead State of any name change. Upon receipt of legal documentation of the name change the Lead State will process the amendment. Payment of invoices presented with a new name cannot be paid prior to approval of said amendment.

6. Customer Service Unit
Contractor will have a customer service unit that supports this Master Agreement. The customer service unit shall provide office and personnel resources for responding to inquiries, including telephone and email coverage weekdays during business hours.

The customer service unit shall be staffed with individuals that:
• Are trained in the requirements of this contract
• Have the authority to take administrative action to correct problems that may occur
• Are designated for training and general customer service follow-up Contractor shall respond to customer inquiries within one (1) business day of initial contact.

Prior to Master Agreement award, Contractor shall provide customer service information to the Lead State within five (5) business days of written request.
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J. Transition / End of Agreement
Item Description

1. Transition Plan at End of Contract
Contractor agrees that at the end of this Master Agreement, should the Lead State conduct another procurement and award a new Master Agreement, the Contractor will work with the Lead State Contract Administrator, if requested to ensure that an efficient and effective transition takes place.

Upon termination or expiration of the Master Agreement the following will occur:
• All on-line offering systems and Electronic Catalog functions supported and/or available as part of the Master Agreement will cease and be removed from public viewing access without redirecting to another website.
• Customer data/user accounts acquired during the term of the contract shall be destroyed or returned to the Lead State at the request of the Lead State Contract Administrator.
• No references to the Master Agreement shall be made after contract end on the Contractor’s commercial website without permission by the State Contract Administrator.
• All invoicing disputes and/or order tracking will be conducted through the Contractor’s Customer Service Unit via telephone or email.

K. Environmentally Preferable Purchasing
The following requirements are specific to the State of California and may be incorporated within Participating Addenda at the Participating Entity’s discretion.

Item Description

1. Environmentally Preferable Purchasing (EPP)
California Department of General Services is responsible for the implementation of EPP as mandated by the California Public Contract Code (PCC), Chapter 6, sections 12400-12404. Contractor certifies the products or services offered comply with the Federal Trade Commission’s Guidelines for the Use of Environmental Marketing Terms (PCC Section 12404).

2. Post-Consumer Recycled Content (PCRC) Certification California state agencies are required to report purchases made within eleven (11) product categories in the California Department of Resources Recycling and Recovery’s (CalRecycle), State Agency Buy Recycled 201
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Item Description
Campaign (SABRC) in accordance with Public Contract Code sections 12200-12217.In order to comply with those requirements, Contractor will be required to certify in writing the minimum percentage, if not the exact percentage, of post-consumer recycled content (PCRC) material in each of the products ordered, upon request.

3. Green Product Marking and Labeling
Contractor shall identify products that possess third party environmental certifications on the Electronic Catalog.

4. Wheel Weights
California law prohibits the manufacture, sale, or installation of wheel weights containing more than 0.1% lead. California Health and Safety Code Section 25215.6-25215.7 (
https://codes.findlaw.com/ca/health-and-
safety-code/hsc-sect-25215-6.html).

5. Mercury Containing Products
A person cannot sell or distribute for promotional purposes, in California, certain types of new or refurbished products and devices that contain mercury. This law can be found in Health and Safety Code, Division 20, Chapter 6.5; Mercury-Added Thermostats, Relays, Switches, and Measuring Devices (Sections 25214.8.1-25214.8.6).
(
https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-25214-8-

4.html).

6. Consumer Products
Contractor may not sell, supply, offer for sale, or manufacture for sale in California consumer products that do not comply with the Consumer Products Regulatory Program, whose aim is to reduce the amount of volatile organic compounds (VOCs), toxic air contaminants (TACs), and greenhouse gases (GHGs) that are emitted from using chemically formulated consumer products. Background information including enforcement of the program can be found at:
https://ww2.arb.ca.gov/our-
work/programs/consumer-products-program/about.

Regulations for the program can be found in Article 2: Regulation for Reducing Emissions from Consumer Products, commonly referred to as the General Consumer Products Regulation.

7. Brake Friction Material
All motor vehicle brake friction materials sold in California must meet the requirements as identified in California Health and Safety Code Section 25250.51 (Source:
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=

20.&chapter=6.5.&lawCode=HSC&article=13.5
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L. Generative Artificial Intelligence (GenAI) Reporting The following requirements are specific to the State of California only.

Item Description

1. Generative Artificial Intelligence (GenAI) Reporting The State of California seeks to realize the potential benefits of GenAI, through the development and deployment of GenAI tools, while balancing the risks of these new technologies.

Upon request by an ordering agency, Contractor must complete a GenAI
Reporting and Fact Sheet (STD 1000) t o identify if their solution or service includes, or makes available, any GenAI including, GenAI from third parties or subcontractors.

During the term of the contract, Contractor must notify the State in writing if their services or any work under this contract includes, or makes available, any previously unreported GenAI technology, including GenAI from third parties or subcontractors. Contractor shall immediately complete the GenAI Reporting and Factsheet (STD 1000) to notify the State of any new or previously unreported GenAI technology.

At the direction of the State, Contractor shall discontinue the use of any new or previously undisclosed GenAI technology that materially impacts functionality, risk or contract performance, until use of such GenAI technology has been approved by the State.

Failure to disclose GenAI use to the State and submit the GenAI Reporting and Factsheet (STD 1000) may be considered a breach of the contract by the State at its sole discretion and the State may consider such failure to disclose GenAI and/or failure to submit the GenAI Reporting and Factsheet (STD 1000) as grounds for the immediate termination of the contract. The State is entitled to seek any and all relief to which it may be entitled to as a result of such non-disclosure.

The State reserves the right to amend the contract, without additional cost, to incorporate GenAI Special Provisions into the contract at its sole discretion and/or terminate any contract that presents an unacceptable level of risk to the State.

If Contractor identifies GenAI in their solution, a copy of the STD 1000 must be submitted to the State Contract Administrator.

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EXHIBIT B: CATEGORY DISCOUNTS
Category Description
Percent
Discount Off
MSRP
1 Air Conditioning 60%
2 Alternators and Starters 60%
3 Batteries 60%
4 Bearings, Ball and Roller 60%
5 Belts and Hoses 60%
6 Brakes 60%
7 Electrical and Ignition 60%
8 Emission, Sensors and Exhaust 60%
9 Engine and Drive Train 60%
10 Filters, Oil, Gas, Air and Transmission 60%
11 Gaskets and Seals 60%
12 Heating and Cooling (Engine) 60%
13 Lamps, Lighting and Mirrors 60%
14 Oils, Chemicals, Fluids and Lubricants 60%
15 Pumps, Fuel and Water 60%
16 Suspension, Shocks, Struts and Steering 60%
17 Wipers/Washers 60%
18 Winter Accessories 50%
19 General Automotive Parts (Aftermarket Automotive
Parts not included in Categories 1-18.) 60%
20 Automotive Repair Shop Supplies and
Equipment/Tools (e.g., cleaning supplies,
wrenches, etc.)
35%

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EXHIBIT C: LEAD STATE GENERAL PROVISIONS
Non-IT General Provisions (6/21/2022) is hereby incorporated by reference and made part of this agreement as if attached hereto. This document can be viewed at:
https://www.dgs.ca.gov/PD/Resources/Page-Content/Procurement-Division-Resources- List-Folder/Required-Language-for-Solicitations-and-
Contracts?search=model%20contract
These terms are applicable for State of California purchases only.

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EXHIBIT D: NASPO VALUEPOINT MASTER AGREEMENT TERMS
I. Definitions

1.1 Acceptance means acceptance of goods and services as set forth in Section IX of this Master Agreement.

1.2 Contractor means a party to this Master Agreement, whether a person or entity, that delivers goods or performs services under the terms set forth in this Master Agreement.

1.3 Embedded Software means one or more software applications which permanently reside on a computing device.

1.4 Intellectual Property means any and all patents, copyrights, service marks, trademarks, trade secrets, trade names, patentable inventions, or other similar proprietary rights, in tangible or intangible form, and all rights, title, and interest therein.

1.5 Lead State means the State centrally administering any resulting Master Agreement(s) who is a party to this Master Agreement.

1.6 Master Agreement means the underlying agreement executed by and between the Lead State, acting in cooperation with NASPO ValuePoint, and the Contractor, as now or hereafter amended.

1.7 NASPO ValuePoint is a division of the National Association of State Procurement Officials (“NASPO”), a 501(c)(3) limited liability company.

NASPO ValuePoint facilitates administration of the NASPO cooperative group contracting consortium of state chief procurement officials for the benefit of state departments, institutions, agencies, and political subdivisions and other eligible entities (i.e., colleges, school districts, counties, cities, some nonprofit organizations, etc.) for all states, the District of Columbia, and territories of the United States. NASPO ValuePoint is identified in the Master Agreement as the recipient of reports and may perform contract administration functions relating to collecting and receiving reports, as well as other contract administration functions as assigned by the Lead State.

1.8 Order or Purchase Order means any purchase order, sales order, contract or other document used by a Purchasing Entity to order the Products.

1.9 Participating Addendum means a bilateral agreement executed by a Contractor and a Participating Entity incorporating this Master Agreement and any additional Participating Entity-specific language or other requirements (e.g., ordering procedures specific to the Participating Entity, entity-specific terms and conditions, etc.).

1.10 Participating Entity means a state (as well as the District of Columbia and US territories), city, county, district, other political subdivision of a State, or a nonprofit organization under the laws of some states properly authorized to enter into a Participating Addendum, that has executed a Participating Addendum.
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1.11 Participating State means a state that has executed a Participating Addendum or has indicated an intent to execute a Participating Addendum.

1.12 Product or Products and Services means any equipment, software (including embedded software), documentation, service, or other deliverable supplied or created by the Contractor pursuant to this Master Agreement. The term Product includes goods and services.

1.13 Purchasing Entity means a state (as well as the District of Columbia and US territories), city, county, district, other political subdivision of a State, or a nonprofit organization under the laws of some states if authorized by a Participating Addendum, that issues a Purchase Order against the Master Agreement and becomes financially committed to the purchase.

II. Term of Master Agreement

2.1 Initial Term. The initial term and extension options for this Master Agreement is listed in Section 2 of Exhibit A, Scope of Work.

2.2 Amendment Limitations. The terms of this Master Agreement will not be waived, altered, modified, supplemented, or amended in any manner whatsoever without prior written agreement of the Lead State and Contractor.

2.3 Amendment Term. The term of the Master Agreement may be amended past the initial term and stated renewal periods for a reasonable period if in the judgment of the Lead State a follow-on competitive procurement will be unavoidably delayed (despite good faith efforts) beyond the planned date of execution of the follow-on master agreement. This subsection will not be deemed to limit the authority of a Lead State under its state law to otherwise negotiate contract extensions.

III. Order of Precedence

3.1 Order. The following order of precedence shall apply for Orders executed by Purchasing Entities:

3.1.1 A Participating Entity’s Participating Addendum (“PA”);

3.1.2 NASPO ValuePoint Master Agreement, including all attachments thereto;

3.1.3 A Purchase Order issued against the Master Agreement;

3.1.4 The Solicitation or, if separately executed after award, the Lead State’s bilateral agreement that integrates applicable provisions;

3.1.5 Contractor’s response to the Solicitation, as revised (if permitted) and accepted by the Lead State.

3.2 Conflict. These documents will be read to be consistent and complementary. Any conflict among these documents will be resolved by giving priority to these documents in the order listed above. Contractor terms and conditions that apply to this Master Agreement are only those that are expressly accepted by the Lead State and must be in writing and attached to this Master Agreement as an Exhibit or Attachment. 207
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3.3 Participating Addenda. Participating Addenda will not be construed to dimmish, modify, or otherwise derogate any provisions in this Master Agreement between the Lead State and Contractor. Participating Addenda will not include a term of agreement that exceeds the term of the Master Agreement.

IV. Participants and Scope

4.1 Requirement for a Participating Addendum. Contractor may not deliver Products under this Master Agreement until a Participating Addendum acceptable to the Participating Entity and Contractor is executed.

4.2 Applicability of Master Agreement. NASPO ValuePoint Master Agreement Terms and Conditions are applicable to any Order by a Participating Entity (and other Purchasing Entities covered by their Participating Addendum), except to the extent altered, modified, supplemented or amended by a Participating Addendum, subject to Section III. For the purposes of illustration and not limitation, this authority may apply to unique delivery and invoicing requirements, confidentiality requirements, defaults on Orders, governing law and venue relating to Orders by a Participating Entity, indemnification, and insurance requirements. Statutory or constitutional requirements relating to availability of funds may require specific language in some Participating Addenda in order to comply with applicable law. The expectation is that these alterations, modifications, supplements, or amendments will be addressed in the Participating Addendum or, with the consent of the Purchasing Entity and Contractor, may be included in the ordering document (e.g., purchase order or contract) used by the Purchasing Entity to place the Order.

4.3 Authorized Use. Use of specific NASPO ValuePoint Master Agreements by state agencies, political subdivisions and other Participating Entities is subject to applicable state law and the approval of the respective State Chief Procurement Official. Issues of interpretation and eligibility for participation are solely within the authority of the respective State Chief Procurement Official.

4.4 Obligated Entities. Obligations under this Master Agreement are limited to those Participating Entities who have signed a Participating Addendum and Purchasing Entities within the scope of those Participating Addenda.

States or other entities permitted to participate may use an informal competitive process to determine which Master Agreements to participate in through execution of a Participating Addendum. Participating Entities incur no financial obligations on behalf of other Purchasing Entities.

4.5 Notice of Participating Addendum. Contractor shall email a fully executed PDF copy of each Participating Addendum to
[email protected]
to support documentation of participation and
posting in appropriate databases.
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4.6 Eligibility for a Participating Addendum. Eligible entities who are not states may under some circumstances sign their own Participating Addendum, subject to the consent of the Chief Procurement Official of the state where the entity is located. Entities should coordinate requests for such participation through NASPO ValuePoint. Any permission to participate through execution of a Participating Addendum is not a determination that procurement authority exists; the entity must ensure that they have the requisite procurement authority to execute a Participating Addendum.

4.7 Prohibition on Resale. Subject to any specific conditions included in the solicitation or Contractor’s proposal as accepted by the Lead State, or as explicitly permitted in a Participating Addendum, Purchasing Entities may not resell Products purchased under this Master Agreement. Absent any such condition or explicit permission, this limitation does not prohibit:
payments by employees of a Purchasing Entity for Products; sales of Products to the general public as surplus property; and fees associated with inventory transactions with other governmental or nonprofit entities and consistent with a Purchasing Entity’s laws and regulations. Any sale or transfer permitted by this subsection must be consistent with license rights granted for use of intellectual property.

4.8 Individual Customers. Except as may otherwise be agreed to by the Purchasing Entity and Contractor, each Purchasing Entity shall follow the terms and conditions of the Master Agreement and applicable Participating Addendum and will have the same rights and responsibilities for their purchases as the Lead State has in the Master Agreement and as the Participating Entity has in the Participating Addendum, including but not limited to any indemnity or right to recover any costs as such right is defined in the Master Agreement and applicable Participating Addendum for their purchases. Each Purchasing Entity will be responsible for its own charges, fees, and liabilities. The Contractor will apply the charges and invoice each Purchasing Entity individually.

4.9 Release of Information. Throughout the duration of this Master Agreement, Contractor must secure from the Lead State prior approval for the release of information that pertains to the potential work or activities covered by the Master Agreement. This limitation does not preclude publication about the award of the Master Agreement or marketing activities consistent with any proposed and accepted marketing plan.

4.10 No Representations. The Contractor shall not make any representations of NASPO ValuePoint, the Lead State, any Participating Entity, or any Purchasing Entity’s opinion or position as to the quality or effectiveness of the services that are the subject of this Master Agreement without prior written consent.
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V. NASPO ValuePoint Provisions

5.1 Applicability. NASPO ValuePoint is not a party to the Master Agreement.

The terms set forth in Section V are for the benefit of NASPO ValuePoint as a third-party beneficiary of this Master Agreement.

5.2 Administrative Fees

5.2.1 NASPO ValuePoint Fee. Contractor shall pay to NASPO ValuePoint, or its assignee, a NASPO ValuePoint Administrative Fee of one-quarter of one percent (0.25% or 0.0025) no later than sixty (60) days following the end of each calendar quarter. The NASPO ValuePoint Administrative Fee must be submitted quarterly and is based on all sales of products and services under the Master Agreement (less any charges for taxes or shipping). The NASPO ValuePoint Administrative Fee is not negotiable. This fee is to be included as part of the pricing submitted with a vendor’s response to the Lead State’s solicitation.

5.2.2 State Imposed Fees. Some states may require an additional fee be paid directly to the state on purchases made by Purchasing Entities within that state. For all such requests, the fee rate or amount, payment method and schedule for such reports and payments will be incorporated into the applicable Participating Addendum. Unless agreed to in writing by the state, Contractor may not adjust the Master Agreement pricing to include the state fee for purchases made by Purchasing Entities within the jurisdiction of the state. No such agreement will affect the NASPO ValuePoint Administrative Fee percentage or the prices paid by Purchasing Entities outside the jurisdiction of the state requesting the additional fee.

5.3 NASPO ValuePoint Summary and Detailed Usage Reports

5.3.1 Summary Sales Data. The Contractor shall submit quarterly sales reports directly to NASPO ValuePoint using the NASPO ValuePoint Quarterly Sales/Administrative Fee Reporting Tool found at http://calculator.naspovaluepoint.org
. All sales made under this
Master Agreement must be reported as cumulative totals by state.

Contractor must submit a report for each quarter, including quarters during which a Contractor has no sales, in which case this will be indicated in the Reporting Tool. Reports must be submitted no later than thirty (30) days following the end of the calendar quarter (as specified in the reporting tool).

5.3.2 Detailed Sales Data. Contractor shall also report detailed sales data by: (1) state; (2) entity/customer type, e.g. local government, higher education, K12, non-profit; (3) Purchasing Entity name; (4) Purchasing Entity bill-to and ship-to locations; (4) Purchasing Entity and Contractor Purchase Order identifier/number(s); (5) Purchase Order Type (e.g. sales order, credit, return, upgrade, determined by industry practices); (6) Purchase Order date; (7) Ship Date; (8) and 210
State of California Cooperative Agreement 7-21-99-41-03 Department of General Services Amendment 1

line item description, including product number if used. The report must be submitted in any form required by the solicitation. Reports are due on a quarterly basis and must be received by the Lead State and NASPO ValuePoint Cooperative Development Team no later than thirty (30) days following the end of the calendar quarter.

Reports must be delivered to the Lead State and to the NASPO ValuePoint Cooperative Development Team electronically through a designated portal or other method as determined by the Lead State and NASPO ValuePoint. Detailed sales data reports must include sales information for all sales under Participating Addenda executed under this Master Agreement.

5.3.3 Reporting on Personal Use. Reportable sales for the summary sales data report and detailed sales data report includes sales to employees for personal use where authorized by the solicitation and the Participating Addendum. Report data for employees should be limited to ONLY the state and entity ((state and agency, city, county, school district, etc.) under whose authority the employee is purchasing Product for personal use and the amount of sales. No personal identification numbers (e.g., names, addresses, social security numbers or any other numerical identifier) may be submitted with any report.

5.3.4 Executive Summary. Contractor shall provide the NASPO ValuePoint Cooperative Development Coordinator with an
executive summary each quarter that includes, at a minimum, a list of states with an active Participating Addendum, states that Contractor is in negotiations with and any Participating Addendum roll out or implementation activities and issues. NASPO ValuePoint Cooperative Development Coordinator and Contractor will determine the format and content of the executive summary. The executive summary is due thirty (30) days after the conclusion of each calendar quarter.

5.3.5 Use of Data. Timely submission of these reports is a material requirement of the Master Agreement. The recipient of the reports will have exclusive ownership of the media containing the reports. The Lead State and NASPO ValuePoint shall have a perpetual, irrevocable, non-exclusive, royalty free, transferable right to display, modify, copy, and otherwise use reports, data and information provided under this section.

5.4 NASPO ValuePoint Cooperative Program Marketing, Training, and Performance Review

5.4.1 Staff Education. Contractor shall work cooperatively with NASPO ValuePoint personnel. Contractor shall present plans to NASPO ValuePoint for the education of Contractor’s contract
administrator(s) and sales/marketing workforce regarding the Master Agreement contract, including the competitive nature of 211
State of California Cooperative Agreement 7-21-99-41-03 Department of General Services Amendment 1

NASPO ValuePoint procurements, the master agreement and participating addendum process, and the manner in which eligible entities can participate in the Master Agreement.

5.4.2 Onboarding Plan. Upon request by NASPO ValuePoint, Contractor shall, as Participating Addendums are executed, provide plans to launch the program for the Participating Entity. Plans will include time frames to launch the agreement and confirmation that the Contractor’s website has been updated to properly reflect the scope and terms of the Master Agreement as available to the Participating Entity and eligible Purchasing Entities.

5.4.3 Annual Contract Performance Review. Contractor shall participate in an annual contract performance review with the Lead State and NASPO ValuePoint, which may at the discretion of the Lead State be held in person and which may include a discussion of marketing action plans, target strategies, marketing materials, Contractor reporting, and timeliness of payment of administration fees.

5.4.4 Use of NASPO ValuePoint Logo. The NASPO ValuePoint logos may not be used by Contractor in sales and marketing until a separate logo use agreement is executed with NASPO ValuePoint.

5.4.5 Most Favored Customer. Contractor shall, within thirty (30) days of their effective date, notify the Lead State and NASPO ValuePoint of any contractual most-favored-customer provisions provided to another competing cooperative. Upon request of the Lead State or NASPO ValuePoint, Contractor shall provide a copy of any such provisions.

5.5 Cancellation. In consultation with NASPO ValuePoint, the Lead State may, in its discretion, cancel the Master Agreement or not exercise an option to renew, when utilization of Contractor’s Master Agreement does not warrant further administration of the Master Agreement. The Lead State may also exercise its right to not renew the Master Agreement if vendor fails to record or report revenue for three consecutive quarters, upon 60-calendar day written notice to the Contractor. Cancellation based on nonuse or under-utilization will not occur sooner than two (2) years after execution of the Master Agreement. This subsection does not limit the discretionary right of either the Lead State to cancel the Master Agreement or terminate for default subject to the terms herein. This subsection also does not limit any right of the Lead State to cancel the Master Agreement under applicable laws.

5.6 Canadian Participation. Subject to the approval of Contractor, any Canadian provincial government or provincially funded entity in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec, or Saskatchewan, and territorial government or territorial government funded entity in the Northwest Territories, Nunavut, or Yukon, including municipalities, 212
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universities, community colleges, school boards, health authorities, housing authorities, agencies, boards, commissions, and crown corporations, may be eligible to use Contractor's Master Agreement.

5.7 Additional Agreement with NASPO. Upon request by NASPO ValuePoint, awarded Contractor shall enter into a direct contractual relationship with NASPO ValuePoint related to Contractor’s obligations to NASPO ValuePoint under the terms of the Master Agreement, the terms of which shall be the same or similar (and not less favorable) than the terms set forth in the Master Agreement.

VI. Pricing, Payment & Leasing

6.1 Pricing. The discounts contained in this Master Agreement represent the minimum discount to any Purchasing Entity.

6.1.1 All discounts must be guaranteed for the entire term of the Master Agreement, including extension years.

6.2 Payment. Unless otherwise agreed upon in a Participating Addendum or Order, Payment after Acceptance will be made within forty-five (45) days following the date the entire order is delivered or the date a correct invoice is received, whichever is later. After 45 days the Contractor may assess overdue account charges up to a maximum rate of one percent per month on the outstanding balance, unless a different late payment amount is specified in a Participating Addendum or Order, or otherwise prescribed by applicable law. Payments will be remitted in the manner specified in the Participating Addendum or Order. Payments may be made via a purchasing card with no additional charge.

6.3 Leasing or Alternative Financing Methods. The procurement and other applicable laws of some Purchasing Entities may permit the use of leasing or alternative financing methods for the acquisition of Products under this Master Agreement. Where the terms and conditions are not otherwise prescribed in an applicable Participating Addendum, the terms and conditions for leasing or alternative financing methods are subject to negotiation between the Contractor and Purchasing Entity.

VII. Ordering

7.1 Order Numbers. Master Agreement, Participating Addendum, and purchase order numbers must be clearly shown on all acknowledgments, packing slips, invoices, and on all correspondence.

7.2 Quotes. Purchasing Entities may define entity-specific or project-specific requirements and informally compete the requirement among companies having a Master Agreement on an “as needed” basis. This procedure may also be used when requirements are aggregated or other firm commitments may be made to achieve reductions in pricing. This procedure may be modified in Participating Addenda and adapted to the Purchasing Entity’s rules and policies. The Purchasing Entity may in its sole discretion determine which Master Agreement Contractors should be 213
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solicited for a quote. The Purchasing Entity may select the quote that it considers most advantageous, cost, and other factors considered.

7.3 Applicable Rules. Each Purchasing Entity will identify and utilize its own appropriate purchasing procedure and documentation. Contractor is expected to become familiar with the Purchasing Entities’ rules, policies, and procedures regarding the ordering of supplies and/or services contemplated by this Master Agreement.

7.4 Required Documentation. Contractor shall not begin work without a valid Purchase Order or other appropriate commitment document under the law of the Purchasing Entity.

7.5 Term of Purchase. Orders may be placed consistent with the terms of this Master Agreement and applicable Participating Addendum during the term of the Master Agreement and Participating Addendum.

7.5.1 Orders must be placed pursuant to this Master Agreement prior to the termination date thereof, but may have a delivery date or performance period up to 120 days past the then-current termination date of this Master Agreement.

7.5.2 Notwithstanding the previous, Orders must also comply with the terms of the applicable Participating Addendum, which may further restrict the period during which Orders may be placed or delivered.

7.5.3 Financial obligations of Purchasing Entities payable after the current applicable fiscal year are contingent upon agency funds for that purpose being appropriated, budgeted, and otherwise made available.

7.5.4 Notwithstanding the expiration, cancellation or termination of this Master Agreement, Contractor shall perform in accordance with the terms of any Orders then outstanding at the time of such expiration or termination. Contractor shall not honor any Orders placed after the expiration, cancellation, or termination of this Master Agreement, or in any manner inconsistent with this Master Agreement’s terms.

7.5.5 Orders for any separate indefinite quantity, task order, or other form of indefinite delivery order arrangement priced against this Master Agreement may not be placed after the expiration or termination of this Master Agreement, notwithstanding the term of any such indefinite delivery order agreement.

7.6 Order Form Requirements. All Orders pursuant to this Master Agreement, at a minimum, must include:

7.6.1 The services or supplies being delivered;

7.6.2 A shipping address and other delivery requirements, if any;

7.6.3 A billing address;

7.6.4 Purchasing Entity contact information;

7.6.5 Pricing consistent with this Master Agreement and applicable Participating Addendum and as may be adjusted by agreement of the Purchasing Entity and Contractor;
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7.6.6 A not-to-exceed total for the products or services being ordered; and

7.6.7 The Master Agreement number or the applicable Participating Addendum number, provided the Participating Addendum
references the Master Agreement number.

7.7 Communication. All communications concerning administration of Orders placed must be furnished solely to the authorized purchasing agent within the Purchasing Entity’s purchasing office, or to such other individual identified in writing in the Order.

7.8 Contract Provisions for Orders Utilizing Federal Funds. Pursuant to Appendix II to 2 Code of Federal Regulations (CFR) Part 200, Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, Orders funded with federal funds may have additional contractual requirements or certifications that must be satisfied at the time the Order is placed or upon delivery. These federal requirements may be proposed by Participating Entities in Participating Addenda and Purchasing Entities for incorporation in Orders placed under this Master Agreement.

VIII. Shipping and Delivery

8.1 Shipping Terms. All deliveries will be F.O.B. destination, freight pre-paid, with all transportation and handling charges paid by the Contractor.

8.1.1 Notwithstanding the above, responsibility and liability for loss or damage will remain the Contractor’s until final inspection and acceptance when responsibility will pass to the Purchasing Entity except as to latent defects, fraud, and Contractor’s warranty obligations.

8.2 Minimum Shipping. The minimum shipment amount, if any, must be contained in the Master Agreement. Any order for less than the specified amount is to be shipped with the freight prepaid and added as a separate item on the invoice. Any portion of an Order to be shipped without transportation charges that is back ordered will be shipped without charge.

8.3 Inside Deliveries. To the extent applicable, all deliveries will be “Inside Deliveries” as designated by a representative of the Purchasing Entity placing the Order. Inside Delivery refers to a delivery to a location other than a loading dock, front lobby, or reception area. Specific delivery instructions will be noted on the order form or Purchase Order. Costs to repair any damage to the building interior (e.g., scratched walls, damage to the freight elevator, etc.) caused by Contractor or Contractor’s carrier will be the responsibility of the Contractor. Immediately upon becoming aware of such damage, Contractor shall notify the Purchasing Entity placing the Order.

8.4 Packaging. All products must be delivered in the manufacturer’s standard package. Costs must include all packing and/or crating charges. Cases must be of durable construction, in good condition, properly labeled and suitable in every respect for storage and handling of contents. Each 215
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shipping carton must be marked with the commodity, brand, quantity, item code number and the Purchasing Entity’s Purchase Order number.

IX. Inspection and Acceptance

9.1 Laws and Regulations. Any and all Products offered and furnished must comply fully with all applicable Federal, State, and local laws and regulations.

9.2 Applicability. Unless otherwise specified in the Master Agreement, Participating Addendum, or ordering document, the terms of this Section IX will apply. This section is not intended to limit rights and remedies under the applicable commercial code.

9.3 Inspection. All Products are subject to inspection at reasonable times and places before Acceptance. Contractor shall provide right of access to the Lead State, or to any other authorized agent or official of the Lead State or other Participating or Purchasing Entity, at reasonable times, to monitor and evaluate performance, compliance, and/or quality assurance requirements under this Master Agreement.

9.3.1 Products that do not meet specifications may be rejected. Failure to reject upon receipt, however, does not relieve the contractor of liability for material (nonconformity that substantial impairs value) latent or hidden defects subsequently revealed when goods are put to use.

9.3.2 Acceptance of such goods may be revoked in accordance with the provisions of the applicable commercial code, and the Contractor is liable for any resulting expense incurred by the Purchasing Entity related to the preparation and shipping of Product rejected and returned, or for which Acceptance is revoked.

9.4 Failure to Conform. If any services do not conform to contract requirements, the Purchasing Entity may require the Contractor to perform the services again in conformity with contract requirements, at no increase in Order amount. When defects cannot be corrected by re-performance, the Purchasing Entity may require the Contractor to take necessary action to ensure that future performance conforms to contract requirements and reduce the contract price to reflect the reduced value of services performed.

9.5 Acceptance Testing. Purchasing Entity may establish a process, in keeping with industry standards, to ascertaining whether the Product meets the standard of performance or specifications prior to Acceptance by the Purchasing Entity.

9.5.1 The Acceptance Testing period will be thirty (30) calendar days, unless otherwise specified, starting from the day after the Product is delivered or, if installed by Contractor, the day after the Product is installed and Contractor certifies that the Product is ready for Acceptance Testing.
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9.5.2 If the Product does not meet the standard of performance or specifications during the initial period of Acceptance Testing, Purchasing Entity may, at its discretion, continue Acceptance Testing on a day-to-day basis until the standard of performance is met.

9.5.3 Upon rejection, the Contractor will have fifteen (15) calendar days to cure. If after the cure period, the Product still has not met the standard of performance or specifications, the Purchasing Entity may, at its option: (a) declare Contractor to be in breach and terminate the Order; (b) demand replacement Product from Contractor at no additional cost to Purchasing Entity; or, (c) continue the cure period for an additional time period agreed upon by the Purchasing Entity and the Contractor.

9.5.4 Contractor shall pay all costs related to the preparation and shipping of Product returned pursuant to the section.

9.5.5 No Product will be deemed Accepted and no charges will be paid until the standard of performance or specification is met.

X. Warranty

10.1 Applicability. Unless otherwise specified in the Master Agreement, Participating Addendum, or ordering document, the terms of this Section X will apply.

10.2 Warranty. The Contractor warrants for a period of one year from the date of Acceptance that: (a) the Product performs according to all specific claims that the Contractor made in its response to the solicitation, (b) the Product is suitable for the ordinary purposes for which such Product is used, (c) the Product is suitable for any special purposes identified in the solicitation or for which the Purchasing Entity has relied on the Contractor’s skill or judgment, (d) the Product is designed and manufactured in a commercially reasonable manner, and (e) the Product is free of defects.

10.3 Breach of Warranty. Upon breach of the warranty set forth above, the Contractor will repair or replace (at no charge to the Purchasing Entity) the Product whose nonconformance is discovered and made known to the Contractor. If the repaired and/or replaced Product proves to be inadequate, or fails of its essential purpose, the Contractor will refund the full amount of any payments that have been made.

10.4 Rights Reserved. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs.

10.5 Warranty Period Start Date. The warranty period will begin upon Acceptance, as set forth in Section IX.
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XI. Product Title

11.1 Conveyance of Title. Upon Acceptance by the Purchasing Entity, Contractor shall convey to Purchasing Entity title to the Product free and clear of all liens, encumbrances, or other security interests.

11.2 Embedded Software. Transfer of title to the Product must include an irrevocable and perpetual license to use any Embedded Software in the Product. If Purchasing Entity subsequently transfers title of the Product to another entity, Purchasing Entity shall have the right to transfer the license to use the Embedded Software with the transfer of Product title. A subsequent transfer of this software license will be at no additional cost or charge to either Purchasing Entity or Purchasing Entity’s transferee.

11.3 License of Pre-Existing Intellectual Property. Contractor grants to the Purchasing Entity a nonexclusive, perpetual, royalty-free, irrevocable, license to use, publish, translate, reproduce, transfer with any sale of tangible media or Product, perform, display, and dispose of the Intellectual Property, and its derivatives, used or delivered under this Master Agreement, but not created under it (“Pre-existing Intellectual Property”).

The Contractor shall be responsible for ensuring that this license is consistent with any third-party rights in the Pre-existing Intellectual Property.

XII. Indemnification

12.1 General Indemnification. The Contractor shall defend, indemnify and hold harmless NASPO, NASPO ValuePoint, the Lead State, Participating Entities, and Purchasing Entities, along with their officers and employees, from and against third-party claims, damages or causes of action including reasonable attorneys’ fees and related costs for any death, injury, or damage to tangible property arising from any act, error, or omission of the Contractor, its employees or subcontractors or volunteers, at any tier, relating to performance under this Master Agreement.

12.2 Intellectual Property Indemnification. The Contractor shall defend, indemnify and hold harmless NASPO, NASPO ValuePoint, the Lead State, Participating Entities, Purchasing Entities, along with their officers and employees ("Indemnified Party"), from and against claims, damages or causes of action including reasonable attorneys’ fees and related costs arising out of the claim that the Product or its use infringes Intellectual Property rights of another person or entity ("Intellectual Property Claim").

12.2.1 The Contractor’s obligations under this section will not extend to any combination of the Product with any other product, system or method, unless the Product, system or method is:

12.2.1.1 provided by the Contractor or the Contractor’s subsidiaries or affiliates;

12.2.1.2 specified by the Contractor to work with the Product;

12.2.1.3 reasonably required to use the Product in its intended manner, and the infringement could not have been
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avoided by substituting another reasonably available
product, system or method capable of performing the
same function; or

12.2.1.4 reasonably expected to be used in combination with the Product.

12.2.2 The Indemnified Party shall notify the Contractor within a reasonable time after receiving notice of an Intellectual Property Claim. Even if the Indemnified Party fails to provide reasonable notice, the Contractor shall not be relieved from its obligations unless the Contractor can demonstrate that it was prejudiced in defending the Intellectual Property Claim resulting in increased expenses or loss to the Contractor. If the Contractor promptly and reasonably investigates and defends any Intellectual Property Claim, it shall have control over the defense and settlement of the Intellectual Property Claim. However, the Indemnified Party must consent in writing for any money damages or obligations for which it may be responsible.

12.2.3 The Indemnified Party shall furnish, at the Contractor’s reasonable request and expense, information and assistance necessary for such defense. If the Contractor fails to vigorously pursue the defense or settlement of the Intellectual Property Claim, the Indemnified Party may assume the defense or
settlement of the Intellectual Property Claim and the Contractor shall be liable for all costs and expenses, including reasonable attorneys’ fees and related costs, incurred by the Indemnified Party in the pursuit of the Intellectual Property Claim.

12.2.4 Unless otherwise set forth herein, Section 12.2 is not subject to any limitations of liability in this Master Agreement or in any other document executed in conjunction with this Master Agreement.

XIII. Insurance

13.1 Term. Contractor shall, during the term of this Master Agreement, maintain in full force and effect, the insurance described in this section. A Participating Entity may negotiate alternative Insurance requirements in their Participating Addendum.

13.2 Class. Contractor shall acquire such insurance from an insurance carrier or carriers licensed to conduct business in each Participating Entity’s state and having a rating of A-, Class VII or better, in the most recently published edition of A.M. Best’s Insurance Reports. Failure to buy and maintain the required insurance may result in this Master Agreement’s termination or, at a Participating Entity’s option, result in termination of its Participating Addendum.

13.3 Coverage. Coverage must be written on an occurrence basis. The minimum acceptable limits will be as indicated below:
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13.3.1 Contractor shall maintain Commercial General Liability insurance covering premises operations, independent
contractors, products and completed operations, blanket contractual liability, personal injury (including death), advertising liability, and property damage, with a limit of not less than $1 million per occurrence and $2 million general aggregate;

13.3.2 Contractor shall maintain motor vehicle liability with limits not less than $1,000,000 combined single limit per accident. Such insurance shall cover liability arising out of a motor vehicle including owned, hired, and non-owned motor vehicles.

13.3.3 Contractor must comply with any applicable State Workers Compensation or Employers Liability Insurance requirements.

13.4 Notice of Cancellation. Contractor shall pay premiums on all insurance policies. Contractor shall provide notice to a Participating Entity who is a state within five (5) business days after Contractor is first aware of expiration, cancellation or nonrenewal of such policy or is first aware that cancellation is threatened or expiration, nonrenewal or expiration otherwise may occur.

13.5 Notice of Endorsement. Prior to commencement of performance, Contractor shall provide to the Lead State a written endorsement to the Contractor’s general liability insurance policy or other documentary evidence acceptable to the Lead State that (1) provides that written notice of cancellation will be delivered in accordance with the policy provisions, and (2) provides that the Contractor’s liability insurance policy will be primary, with any liability insurance of any Participating State as secondary and noncontributory.

13.6 Participating Entities. Contractor shall provide to Participating States and Participating Entities the same insurance obligations and documentation as those specified in Section XIII, except the endorsement is provided to the applicable Participating State or Participating Entity.

13.7 Furnishing of Certificates. Contractor shall furnish to the Lead State copies of certificates of all required insurance in a form sufficient to show required coverage within thirty (30) calendar days of the execution of this Master Agreement and prior to performing any work. Copies of renewal certificates of all required insurance will be furnished within thirty (30) days after any renewal date to the applicable state Participating Entity. Failure to provide evidence of coverage may, at the sole option of the Lead State, or any Participating Entity, result in this Master Agreement’s termination or the termination of any Participating Addendum.

13.8 Disclaimer. Insurance coverage and limits will not limit Contractor’s liability and obligations under this Master Agreement, any Participating Addendum, or any Purchase Order.
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XIV. General Provisions

14.1 Records Administration and Audit

14.1.1 The Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Agreement and Orders placed by Purchasing Entities under it to the extent and in such detail as will adequately reflect performance and administration of payments and fees. Contractor shall permit the Lead State, a Participating Entity, a Purchasing Entity, the federal government (including its grant awarding entities and the U.S. Comptroller General), and any other duly authorized agent of a
governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor's books, documents, papers and records directly pertinent to this Master Agreement or orders placed by a Purchasing Entity under it for the purpose of making audits, examinations, excerpts, and transcriptions. This right will survive for a period of six (6) years following termination of this Agreement or final payment for any order placed by a
Purchasing Entity against this Master Agreement, whichever is later, or such longer period as is required by the Purchasing Entity’s state statutes, to assure compliance with the terms hereof or to evaluate performance hereunder.

14.1.2 Without limiting any other remedy available to any governmental entity, the Contractor shall reimburse the applicable Lead State, Participating Entity, or Purchasing Entity for any overpayments inconsistent with the terms of the Master Agreement or Orders or underpayment of fees found as a result of the examination of the Contractor’s records.

14.1.3 The rights and obligations herein exist in addition to any quality assurance obligation in the Master Agreement that requires the Contractor to self-audit contract obligations and that permits the Lead State to review compliance with those obligations.

14.2 Confidentiality, Non-Disclosure, and Injunctive Relief

14.2.1 Confidentiality. Contractor acknowledges that it and its employees or agents may, in the course of providing a Product under this Master Agreement, be exposed to or acquire
information that is confidential to Purchasing Entity or Purchasing Entity’s clients.

14.2.1.1 Any and all information of any form that is marked as confidential or would by its nature be deemed
confidential obtained by Contractor or its employees
or agents in the performance of this Master
Agreement, including but not necessarily limited to (1) any Purchasing Entity’s records, (2) personnel
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confidential information of Purchasing Entity
(“Confidential Information”).

14.2.1.2 Any reports or other documents or items (including software) that result from the use of the Confidential
Information by Contractor shall be treated in the same
manner as the Confidential Information.

14.2.1.3 Confidential Information does not include information that (1) is or becomes (other than by disclosure by
Contractor) publicly known; (2) is furnished by
Purchasing Entity to others without restrictions similar to those imposed by this Master Agreement; (3) is
rightfully in Contractor’s possession without the
obligation of nondisclosure prior to the time of its
disclosure under this Master Agreement; (4) is
obtained from a source other than Purchasing Entity
without the obligation of confidentiality, (5) is
disclosed with the written consent of Purchasing
Entity; or (6) is independently developed by
employees, agents or subcontractors of Contractor
who can be shown to have had no access to the
Confidential Information.

14.2.2 Non-Disclosure. Contractor shall hold Confidential Information in confidence, using at least the industry standard of
confidentiality, and shall not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give, or disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than what is necessary to the performance of Orders placed under this Master Agreement.

14.2.2.1 Contractor shall advise each of its employees and agents of their obligations to keep Confidential
Information confidential. Contractor shall use
commercially reasonable efforts to assist Purchasing
Entity in identifying and preventing any unauthorized
use or disclosure of any Confidential Information.

14.2.2.2 Without limiting the generality of the foregoing, Contractor shall advise Purchasing Entity, applicable
Participating Entity, and the Lead State immediately if Contractor learns or has reason to believe that any
person who has had access to Confidential Information
has violated or intends to violate the terms of this
Master Agreement, and Contractor shall at its expense
cooperate with Purchasing Entity in seeking injunctive
or other equitable relief in the name of Purchasing
Entity or Contractor against any such person.
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14.2.2.3 Except as directed by Purchasing Entity, Contractor will not at any time during or after the term of this
Master Agreement disclose, directly or indirectly, any
Confidential Information to any person, except in
accordance with this Master Agreement, and that upon
termination of this Master Agreement or at Purchasing
Entity’s request, Contractor shall turn over to
Purchasing Entity all documents, papers, and other
matter in Contractor's possession that embody
Confidential Information.

14.2.2.4 Notwithstanding the foregoing, Contractor may keep one copy of such Confidential Information necessary
for quality assurance, audits, and evidence of the
performance of this Master Agreement.

14.2.3 Injunctive Relief. Contractor acknowledges that Contractor’s breach of Section 14.2 would cause irreparable injury to the Purchasing Entity that cannot be inadequately compensated in monetary damages. Accordingly, Purchasing Entity may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available. Contractor acknowledges and agrees that the covenants contained herein are necessary for the protection of the legitimate business interests of Purchasing Entity and are reasonable in scope and content.

14.2.4 Purchasing Entity Law. These provisions will be applicable only to extent they are not in conflict with the applicable public disclosure laws of any Purchasing Entity.

14.2.5 NASPO ValuePoint. The rights granted to Purchasing Entities and Contractor’s obligations under this section will also extend to NASPO ValuePoint’s Confidential Information, including but not limited to Participating Addenda, Orders or transaction data relating to Orders under this Master Agreement that identify the entity/customer, Order dates, line-item descriptions and volumes, and prices/rates. This provision does not apply to disclosure to the Lead State, a Participating State, or any governmental entity exercising an audit, inspection, or examination pursuant to this Master Agreement. To the extent permitted by law, Contractor shall notify the Lead State of the identify of any entity seeking access to the Confidential Information described in this subsection.

14.2.6 Public Information. This Master Agreement and all related documents are subject to disclosure pursuant to the Lead State’s public information laws.
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14.3 Assignment/Subcontracts

14.3.1 Contractor shall not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this Master Agreement, in whole or in part, without the prior written approval of the Lead State.

14.3.2 The Lead State reserves the right to assign any rights or duties, including written assignment of contract administration duties, to NASPO ValuePoint and other third parties.

14.4 Changes in Contractor Representation. The Contractor must, within ten (10) calendar days, notify the Lead State in writing of any changes in the Contractor’s key administrative personnel managing the Master Agreement. The Lead State reserves the right to approve or reject changes in key personnel, as identified in the Contractor’s proposal. The Contractor shall propose replacement key personnel having substantially equal or better education, training, and experience as was possessed by the key person proposed and evaluated in the Contractor’s proposal.

14.5 Independent Contractor. Contractor is an independent contractor.

Contractor has no authorization, express or implied, to bind the Lead State, Participating States, other Participating Entities, or Purchasing Entities to any agreements, settlements, liability or understanding whatsoever, and shall not to hold itself out as agent except as expressly set forth herein or as expressly set forth in an applicable Participating Addendum or Order.

14.6 Cancellation. Unless otherwise set forth herein, this Master Agreement may be canceled by either party upon sixty (60) days’ written notice prior to the effective date of the cancellation. Further, any Participating Entity may cancel its participation upon thirty (30) days’ written notice, unless otherwise limited or stated in the Participating Addendum. Cancellation may be in whole or in part. Any cancellation under this provision will not affect the rights and obligations attending Orders outstanding at the time of cancellation, including any right of a Purchasing Entity to indemnification by the Contractor, rights of payment for Products delivered and accepted, rights attending any warranty or default in performance in association with any Order, and requirements for records administration and audit. Cancellation of the Master Agreement due to Contractor default may be immediate.

14.7 Force Majeure. Neither party to this Master Agreement shall be held responsible for delay or default caused by fire, riot, unusually severe weather, other acts of God, or acts of war which are beyond that party’s reasonable control. The Lead State may terminate this Master Agreement upon determining such delay or default will reasonably prevent successful performance of the Master Agreement.

14.8 Defaults and Remedies

14.8.1 The occurrence of any of the following events will be an event of default under this Master Agreement:
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14.8.1.1 Nonperformance of contractual requirements;

14.8.1.2 A material breach of any term or condition of this Master Agreement;

14.8.1.3 Any certification, representation or warranty by Contractor in response to the solicitation or in this
Master Agreement that proves to be untrue or
materially misleading;

14.8.1.4 Institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar officer for Contractor or any of its property, which is not vacated or fully stayed within thirty (30) calendar days after the institution or occurrence thereof; or

14.8.1.5 Any default specified in another section of this Master Agreement.

14.8.2 Upon the occurrence of an event of default, the Lead State shall issue a written notice of default, identifying the nature of the default, and providing a period of fifteen (15) calendar days in which Contractor shall have an opportunity to cure the default.

The Lead State shall not be required to provide advance written notice or a cure period and may immediately terminate this Master Agreement in whole or in part if the Lead State, in its sole discretion, determines that it is reasonably necessary to preserve public safety or prevent immediate public crisis. Time allowed for cure will not diminish or eliminate Contractor’s liability for damages, including liquidated damages to the extent provided for under this Master Agreement.

14.8.3 If Contractor is afforded an opportunity to cure and fails to cure the default within the period specified in the written notice of default, Contractor shall be in breach of its obligations under this Master Agreement and the Lead State shall have the right to exercise any or all of the following remedies:

14.8.3.1 Any remedy provided by law;

14.8.3.2 Termination of this Master Agreement and any related Contracts or portions thereof;

14.8.3.3 Assessment of liquidated damages as provided in this Master Agreement;

14.8.3.4 Suspension of Contractor from being able to respond to future bid solicitations;

14.8.3.5 Suspension of Contractor’s performance; and

14.8.3.6 Withholding of payment until the default is remedied.

14.8.4 Unless otherwise specified in the Participating Addendum, in the event of a default under a Participating Addendum, a
Participating Entity shall provide a written notice of default as described in this section and shall have all of the rights and 225
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remedies under this paragraph regarding its participation in the Master Agreement, in addition to those set forth in its Participating Addendum. Unless otherwise specified in an Order, a Purchasing Entity shall provide written notice of default as described in this section and have all of the rights and remedies under this paragraph and any applicable Participating Addendum with respect to an Order placed by the Purchasing Entity. Nothing in these Master Agreement Terms and
Conditions will be construed to limit the rights and remedies available to a Purchasing Entity under the applicable
commercial code.

14.9 Waiver of Breach. Failure of the Lead State, Participating Entity, or Purchasing Entity to declare a default or enforce any rights and remedies will not operate as a waiver under this Master Agreement, any Participating Addendum, or any Purchase Order. Any waiver by the Lead State, Participating Entity, or Purchasing Entity must be in writing. Waiver by the Lead State or Participating Entity of any default, right or remedy under this Master Agreement or Participating Addendum, or by Purchasing Entity with respect to any Purchase Order, or breach of any terms or requirements of this Master Agreement, a Participating Addendum, or Purchase Order will not be construed or operate as a waiver of any subsequent default or breach of such term or requirement, or of any other term or requirement under this Master Agreement, any Participating Addendum, or any Purchase Order.

14.10 Debarment. The Contractor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in public procurement or contracting by any governmental department or agency. This certification represents a recurring certification made at the time any Order is placed under this Master Agreement. If the Contractor cannot certify this statement, attach a written explanation for review by the Lead State.

14.11 No Waiver of Sovereign Immunity

14.11.1 In no event will this Master Agreement, any Participating Addendum or any contract or any Purchase Order issued
thereunder, or any act of the Lead State, a Participating Entity, or a Purchasing Entity be a waiver of any form of defense or immunity, whether sovereign immunity, governmental immunity, immunity based on the Eleventh Amendment to the Constitution of the United States or otherwise, from any claim or from the jurisdiction of any court.

14.11.2 This section applies to a claim brought against the Participating Entities who are states only to the extent Congress has appropriately abrogated the state’s sovereign immunity and is not consent by the state to be sued in federal court. This section is also not a waiver by the state of any form of 226
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immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the
Constitution of the United States.

14.12 Governing Law and Venue

14.12.1 The procurement, evaluation, and award of the Master Agreement will be governed by and construed in accordance with the laws of the Lead State sponsoring and administering the procurement. The construction and effect of the Master Agreement after award will be governed by the law of the state serving as Lead State. The construction and effect of any Participating Addendum or Order against the Master Agreement will be governed by and construed in accordance with the laws of the Participating Entity’s or Purchasing Entity’s state.

14.12.2 Unless otherwise specified in the RFP, the venue for any protest, claim, dispute or action relating to the procurement, evaluation, and award is in the state serving as Lead State.

Venue for any claim, dispute or action concerning the terms of the Master Agreement will be in the state serving as Lead State.

Venue for any claim, dispute, or action concerning any Order placed against the Master Agreement or the effect of a
Participating Addendum will be in the Purchasing Entity’s state.

14.12.3 If a claim is brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for (in decreasing order of priority): the Lead State for claims relating to the procurement, evaluation, award, or contract performance or administration if the Lead State is a party; a Participating State if a named party; the state where the Participating Entity or Purchasing Entity is located if either is a named party.

14.13 Assignment of Antitrust Rights. Contractor irrevocably assigns to a Participating Entity who is a state any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of state or federal antitrust laws (15 U.S.C. § 1-15 or a Participating Entity’s state antitrust provisions), as now in effect and as may be amended from time to time, in connection with any goods or services provided in that state for the purpose of carrying out the Contractor's obligations under this Master Agreement or Participating Addendum, including, at the Participating Entity's option, the right to control any such litigation on such claim for relief or cause of action.

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Department: Broadband Operations
Prepared By: Judy Witrago
Staff Member Presenting: Jimmy Chang,
Broadband General Manager
Reviewed By: Jimmy Chang
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 7
SUBJECT:

ACCEPTANCE OF BROADBAND PROGRAM BENEFICIARIES FROM SOUTHERN

CALIFORNIA ASSOCIATION OF GOVERNMENTS (SCAG)

CITY OF ONTARIO
Agenda Report
February 18, 2025
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council approve a Memorandum of Understanding with Southern California Association of Governments (SCAG) of Los Angeles, California, for broadband program beneficiaries relating to the Local Agency Technical Assistance Program.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT:

There is not a direct fiscal impact associated with this action.

BACKGROUND & ANALYSIS:

In 2022, the City of Ontario applied for the Local Agency Technical Assistance (LATA) Grant Program, designed to assist local government agencies authorized to provide broadband access. This program supports pre-construction planning and technical assistance costs. Although the City of Ontario did not receive the grant, the Southern California Association of Governments (SCAG) was awarded the LATA grant to support their member cities.

Under the LATA program guidelines, SCAG is authorized to provide technical assistance to local agencies preparing to deliver broadband services within their jurisdictions. After a thorough review and consideration, SCAG selected the City of Ontario as a program beneficiary of SCAG's grant award. Through SCAG's support, the City of Ontario will benefit up to $333,000 in technical research
and market analysis of a proposed geographic area within Ontario and support the development of construction designs to prepare future infrastructure buildout for residents and businesses. The proposed project area encompasses 400+ parcels with an estimated population of 1,100.

Ultimately, the goal is to utilize the designs produced to expand OntarioNet's footprint to underserved project areas and continue bridging the digital divide.

City Staff recommends that the City Council approve the receipt of LATA-funded technical assistance provided by SCAG to advance broadband planning and development in Ontario. 228

MEMORANDUM OF UNDERSTANDING
No. M-013-25

BETWEEN THE

SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS

AND THE CITY OF ONTARIO
FOR TECHNICAL ASSISTANCE RELATING TO THE SCAG’S LOCAL AGENCY

TECHNICAL ASSISTANCE (LATA) PROGRAM

(SCAG Project/OWP No. 100.4901.02)

This Memorandum of Understanding (MOU) is entered into by and b etween the Southern California Association of Governments (SCAG) and the City of Ontario, a California municipal corporation (Partner Agency), for technical assistance under the California Public Utilities Commission’s Local Agency Technical Assistance Progr am to support the expansion of OntarioNet’s fiber infrastructure.

SCAG and the Partner Agency may be individually referred to as “Party” and collectively as “Parties.”

RECITALS

WHEREAS, the California Public Utilities Commission (CPUC) established the Local Agency Technical Assistance (LATA) program, pursuant to Senate Bill 156 (Government Code §§ 6547.7 as amended, 11549.50 et seq., 26231, and 53167 as amended; Public Resource Code § 21080.51; Public Utilities Code §§ 281 as amended, 281.2, 912.2 as amended, and 914.7 as amended);

WHEREAS, the CPUC issued a Decision 22-02-026 Establishing Local Agency Technical Assistance Grant Program (Decision), issued Guidance to Staff on Local Agency Technical Assistance Rules and Application (Guidelines), and issued a Grantee Administrative Manual To all Local Agency Technical Assistance Applicants and Grant Recipients (Manual);

WHEREAS, the LATA program provides grant funds to reimburse local agencies and Tribal governments for eligible pre-construction expenses facilitating broadband network projects to unserved and underserved areas in California;

WHEREAS, SCAG is the federally d esignated MPO for Southern Cali fornia, primarily responsible for the development of a Regional Transportation Plan/Sustainable C ommunities Strategy (RTP/SCS also known as Connect SoCal) for the counties of Imperial, Los Angeles, Orange, San Bernardino, Riverside, and Ventura;

WHEREAS, the CPUC awarded $996,058 in LATA program grant funds to SCAG;

WHEREAS, SCAG procured Burns & McDonnell as a consultant (Consu ltant) in accordance with SCAG’s Procurement Policies and Procedures and consistent with the Decision, Guidelines, and Manual;

WHEREAS, Partner Agency was identified as an eligible jurisdiction and selected for technical assistance;

WHEREAS, SCAG and Consultant have developed a “Scope of Work” for the technical assistance to be provided to Partner Agency for purposes of supporting the expan sion of Partner Agency’s local fiber infrastructure (Project);
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MOU No.: M-013-25
SCAG Project/OWP No.: 100.4901.02

WHEREAS, the value of Scope of Work provided by SCAG to the Par tner Agency is approximately $330,000;

WHEREAS, SCAG and the Consultant shall be responsible for project management and technical analysis as outlined in the Scope of Work;

WHEREAS, Partner Agency will s upport, cooperate, and provide gu idance as needed to complete the Project; and

WHEREAS, the purpose of this MOU is to describe the responsibilities of the Parties.

NOW THEREFORE, IT IS MUTUALLY AGREED THAT:

1. MOU Contents

The Recitals and all Exhibits, if any, are incorporated by this reference.

2. Term

The Term of this MOU shall begin on the Effective Date and end on 12/31/25, (Completion Date), unless terminated earlier as provided herein. Time is of the essence in the performance of this MOU.

3. Responsibilities of the Parties:

a. SCAG will:

i. Contribute funding for the Project in accordance with Section 5, Funding, below.

ii. Provide technical assistance to Partner Agency by:

1. Procuring a Consultant.

2. Collaborating with Consultant to develop a Scope of Work; a copy of the contract with the Consultant along with the Scope of Work is attached to Exhibit “A” and incorporated herein.

3. Overseeing and managing the Consultant’s activities in performing the Scope of Work.

4. Review, approve, and pay Consultant’s invoices.

5. Review and approve Consultant’s deliverables in consultation with Partner Agency.

iii. Complete the Project.

b. Partner Agency will:

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i. Fulfill any obligations in compliance with this MOU, the LATA P rogram, the Decision, Guidelines, Manual, and all federal, state and local laws, rules and regulations.

ii. Commit to supporting the Project to completion by:

1. Cooperating with SCAG and the Consultant;

2. Providing technical guidance and decisions without delay;

3. Respond to requests for information and records as requested by SCAG or the Consultant without delay; and

4. Providing access to Partner Agenc y’s facilities, as needed and upon reasonable, advance notice.

5. Consult with SCAG in the review and approval of Consultant’s deliverables.

4. Program Management

a. All work under this MOU shall be coordinated with SCAG and Partner Agency through the Project Managers.

b. For purposes of this MOU, SCAG designates the following individual as its Project Manager:

Roland Ok
Planning Supervisor
213-236-1819
[email protected]

c. For purposes of this MOU, Partner Agency designates the followi ng individual as its Project Manager:

Jimmy Chang
Broadband General Manager
(909) 395-2033
[email protected]

Either Party may change the designation upon written notice to the other Party.

5. Funding

SCAG’s contribution to the Proje ct is funded wholly with LATA f unds. SCAG shall contribute a maximum, not to exceed $332,019 (Gra nt Funds) towards the Proje ct. No Grant Funds will be provided to Partner Agency. SCAG reserves the right, in its sole discretion, to discontinue funding the Project and terminate this MOU.

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6. Work Products

a. For purposes of this MOU, “Work Products” shall mean all deliverables created or produced under this MOU including, but not limited to, all deliverables conceived or made either solely or jointly with others during the term of this MOU and for six months afte r, which relates to the Project.

Work Products shall not include r eal property or capital improv ements. Work Products includes all inventions, innova tions, improvements, or other works of au thorship Partner Agency or Consultant may conceive of or dev elop during the term of this M OU and for six months after, whether or not they are eligible for patent, copyright, tradema rk, trade secret or other legal protection.

b. SCAG shall own all Work Products and shall grant to the Partner Agency a perpetual, royalty-free, and non-exclusive license to use the Work Products. Any reproduction, publishing, or reuse of the Work Products by Partner Agency will be at the Partner Agency’s sole risk and without liability or legal exposure to SCAG.

7. Amendments

No amendment or variation of the terms of this MOU shall be valid unless made in writing, signed by the Parties and approved as required.

8. Notices

Any notice(s) to be given may be personally served or served by certified mail, return receipt requested, to the following addresses:

To SCAG: Cindy Giraldo
Chief Financial Officer
Southern California Association of Governments
900 Wilshire Blvd., Suite 1700
Los Angeles, CA 90017
(213) 630-1413
[email protected]

To Partner Agency: Jimmy Chang
Broadband General Manager
City of Ontario d/b/a OntarioNet
303 E. B Street
Ontario, CA 91764
(909) 395-2033
[email protected]

Either Party may change the designation upon written notice to the other Party.

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9. Indemnification and Release

a. Partner Agency shall fully defend, indemnify and hold harmless SCAG, its members, officers, employees, and agents from any and all claims, losses, liabilities, damages, expenses, suits or actions including attorneys’ fees, brought forth or arising under any t heories or assertions of liability, occurring by or resulting from or otherwise related to any act or omission by Partner Agency, its members, officers, employees, or agents. Such obligations shall not, however, extend to any claims, losses, liabilities, damages, expenses, suits, or actio ns that arise from SCAG’s gross negligence or willful misconduct.

b. Partner Agency acknowledges that SCAG in no way whatsoever insu res or guarantees the Work Product or the Project, and that Partner Agency is accepting th e Work Product and Project from SCAG and its Consultant “AS IS” w ithout warranty of any kind, e ither express or implied, including without limitation any warranties of merchantability or fitness for a particular purpose.

10. Disputes

a. The Parties shall make their best efforts to resolve disputes t hat occur under this MOU by good faith negotiations whenever possible. Both Parties shall meet and confer in good faith in order to foster a spirit of cooperation a nd efficiency in the administra tion and monitoring of performance and compliance by each other with the terms, provisions and conditions of this MOU.

11. Termination of MOU

a. Termination for Cancellation or Reduction in Funding. In the ev ent SCAG’s funding source cancels funding to SCAG, this MOU is deemed to be immediately terminated and SCAG shall be relieved of any and all obligations under this MOU as of the ef fective date of the cancellation of funding. In the event funding is reduced, SCAG shall have the unilateral right to immediately stop work, reduce funding or terminate this MOU.

b. Termination for Cause. If either Party fails to timely and adequately fulfill its obligations under this MOU, or violates any of the cove nants, terms, or stipulations o f this MOU, the non-breaching Party shall have the right to terminate the MOU by giving ten (10) calendar days written notice to the breaching Party of the intent to terminate and specifying the reason(s) and the effective date of termination. The non-breaching Party shall provide a reasonable opportunity for the breaching Party to cure prior to termination. In no event shall such oppo rtunity to cure extend beyond the term of the MOU. In the event that SCAG invokes this terminatio n for cause provision, Partner Agency shall provide any finished or unfinished Work Products to SCAG upon request.

12. Records Retention, Monitoring, and Audits

a. Partner Agency shall maintain its source documents, books and records connected with the Project for a minimum of five (5) years after the termination or expira tion of this MOU. Wherever practicable, such records should be collected, transmitted, and stored in open and machine- readable formats.

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b. If any litigation, claim, negotiation, audit, monitoring, inspection, or other action has been started before the expiration of the required record retention period, all records shall be retained by Partner Agency for five (5) years after: (a) the conclusion or resolution of the matter; (b) the date an audit resolution is achieved for each annual SCAG OWP; or (c) the ter mination or expiration of this MOU, whichever is later.

c. SCAG may monitor activities of Partner Agency as SCAG deems necessary.

d. Partner Agency agrees that SCAG, or any authorized agency, or t heir designated representatives shall have the right to review, obtain, and copy all records an d supporting documentation related to the performance of this MOU. Partner Agency agrees to provid e any relevant information requested. Copies shall be made and furnished to SCAG upon request at no cost to SCAG.

e. Partner Agency agrees to permit SCAG, or any authorized agency, or their designated representatives access to its p remises, upon reasonable notice, during normal business hours for the purpose of interviewing empl oyees who might reasonably have information related to such records and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation.

13. Compliance with Laws, Rules and Regulations

a. Partner Agency agrees to comply with all federal, state and local laws, rules and regulations.

b. Non-Discrimination/Equal Employment Opportunity

i. During the performance of this MOU, Partner Agency assures that no person shall be denied the MOU’s benefits, be excluded from participation or employmen t, be denied Project benefits, or be subjected to discrimination based on race, reli gious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gende r identity, gender expression , age, sexual orientation, or military and veteran status, under the Project or any program or activity funded by this MOU, as required by Title VI of the Civil Rights Act of 1964, the Fa ir Housing Act (42 U.S.C. §§ 3601-20) and all implementing regulations, the Americans with Disabilities Act (“ADA”) of 1990 (42 U.S.C. §§ 12101 et seq .) and all applicable regulat ions and guidelines issued pursuant to the ADA, and the Age Discrimination Act of 1975 and all implementing regulations. Partner Agency shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination.

ii. Partner Agency shall comply with the provisions of the Fair Emp loyment and Housing Act (Gov. Code § 12900 et seq.), the regulations promulgated thereunder (Cal. Code Regs. tit. 2, § 11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code §§ 11135-11139.5), and the regulatio ns or standards adopted to implement such article.

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14. Conflict of Interest

The Parties shall comply with all applicable federal and state conflict of interest laws, regulations, and policies.

15. Independent Contractor

The Partner Agency and its officers, employees, and agents shal l be independent contractors in the performance of this MOU, and not officers, employees, contractors or agents of SCAG.

16. Assignment

Neither Party shall assign any rights or interests in this MOU, or any part thereof, without the written consent of each Party to this MOU, which consent may be granted , withheld or conditioned in the consenting Party’s sole and absolute discretion. Any assignment without such written consent shall be void and unenforceable. The covenants and agreement of this MOU shall inure to the benefit of and shall be binding upon each of the Parties and their respective successors and assignees.

17. Severability

If any provision of this MOU is held to be illegal, invalid, or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, and enforceable, and the legality, validity, and enforceability of the remaining provisions shall not be affected thereby.

18. Survival

The following sections survive expiration or termination of this MOU:

Section 6 (Work Products)
Section 9 (Indemnification and Release)
Section 10 (Disputes)
Section 12 (Records Retention, Monitoring, and Audits)
Section 13 (Compliance with Laws, Rules, and Regulations) Section 14 (Conflict of Interest)
Section 19 (Jurisdiction and Venue)
Section 20 (Waiver)

19. Jurisdiction and Venue

This MOU shall be deemed an agreement under the laws of the State of California and for all purposes shall be interpreted in accordance with such laws. The Parties hereby agree and consent to the exclusive jurisdiction of the courts of the State of California and that the venue of any action brought thereunder shall be Los Angeles County, California.

20. Waiver

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MOU shall be considered a waiver thereof of such Party’s right thereafter to exercise or enforce each and every right and provision of this MOU. A Waiver to be vali d shall be in writing but need not be supported by consideration. No single waiver shall constitute a continuing or subsequent waiver.

21. Entire MOU

This MOU is intended by the Parties to be the full and final ex pression of their agreement and shall not be contradicted by any prior written or oral agreement and supersedes any and all prior negotiations, discussions, and agreements.

22. Execution

This MOU, or any amendments relat ed thereto, may be executed in multiple c ounterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

The signature page of this MOU or any amendments may be execute d by way of a manual or authorized digital signature. Delivery of an executed counterpa rt of a signature page to this MOU or an amendment by electronic transmission scanned pages shall be deemed effective as a delivery of a manually or digitally executed counterpart to this MOU or any amendment.

23. Effective Date

This MOU shall be effective as of the last date in which the document is executed by both Parties.

24. Authority

The person(s) executing this MOU on behalf of the Parties warra nt that they are duly authorized to execute this agreement on behalf of said Parties, and that by d oing so the Parties are formally bound to the provisions of this Agreement.

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MEMORANDUM OF UNDERSTANDING
NO. M-013-25

IN WITNESS WHEREOF, the Parties have caused this MOU to be exec uted by their duly authorized representatives as of the dates indicated below:

SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS (SCAG)

By: _______________________________________________ ___________ ______ Cindy Giraldo Date
Chief Financial Officer

APPROVED AS TO FORM:

By: _______________________________________________ ___________ ______ R i c h a r d L a m D a t e
Senior Deputy Legal Counsel

CITY OF ONTARIO (PARTNER AGENCY)

By: _______________________________________________ ___________ ______ Scott Ochoa Date
City Manager
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Scope of Work
Last Mile Project Assessment for the SCAG Region

Background and Intent
On June 29, 2023, the California Public Utilities Commission (CPUC) approved SCAG’s application for the Local Agency Technical Assistance (LATA) grant funding to conduct a Last Mile Project Assessment for the SCAG Region (Project) (See Appendix A- SCAG LATA Award).

The LATA grant will help SCAG assist local jurisdictions who lack the technical, staff and financial capacity to identify and analyze opportunity areas and develop conceptual design for last mile services. Unfortunately, it is these local jurisdictions that are in dire need of better connectivity, as they have a high-concentration rate of low-income households (often communities of color), many of whom face affordability and accessibility issues.

To fill in this gap, SCAG is requesting proposals to determine and design three (3) projects located within the SCAG region. This project will result in conceptual designs and technology deployment strategy to lay the foundation for three (3) projects that meet or exceed 100/100 or 100/20 Mbps for unserved and/or underserved communities, ideally within proximity to California Department of Technology (CDT’s) proposed 18 middle-mile projects.

SCAG is aware of many local jurisdictions who have been awarded the LATA grant, and planning to develop, or have already developed implementation/ plans. As such, this project will not supersede a local jurisdiction’s effort, nor will the work product result in an unnecessary/redundant network. Work efforts will only engage local jurisdictions who need last mile services but were not able to apply and/or have the capacity to procure a consultant and take on project management roles. Further, this project is not intended to be a strictly planning exercise. While planning is part of this project scope, the product will integrate conceptual, high- level design with planning analysis to develop projects and support last mile expansion for each priority area.

The consultant shall complete the following tasks:

Task 1: Project Administration and Management
Task 1.1: Project Management Plan
A Project Management Plan will be developed to guide aspects of the work tasks, schedule, and budget within the grant agreement. The Project Management Plan will identify a system for project control, including necessary procedures for conducting the work, managing resources, communications, budget, schedule, monitoring and reporting project status and progress, document control, and quality assurance and control. Further, the Project Management Plan will be designed to guide the flow of the overall project effort. Special attention shall be given to the project schedule to address any critical administrative dates (such as Regional Council dates) and internal review needs.
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Task 1.2: Project Schedule
A detailed Project Schedule will be developed for CPUC’s review and as defined by the project scope. The Schedule shall identify work tasks, start dates, activity durations, project development team meeting dates, external partner meeting key dates, project submittal dates, key project milestones, schedules for internal review on deliverables, and relationships among work tasks, including critical path items.

Task 1.3: Project Management Meetings
The Consultant will participate in Project Management meetings. Meetings will include SCAG’s Project Manager, and other SCAG staff, consultant project manager, consultant team members as necessary to review project status/progress, as well as to resolve key issues. Each meeting will have an agenda, a summary of minutes and an action item matrix. Consultant shall participate in approximately two (2) meetings per month on a bi-weekly basis, for an estimated total of 24 meetings up to (1) hour each. The Consultant will be responsible for developing agendas, meeting notes, and action item matrices, as required.

Task 1.4: Special Meetings with External Stakeholders or Working Group Meetings At the direction of the SCAG Project Manager, the Consultant will participate in meetings with external stakeholders or project teams that are working on similar efforts to support intra-agency coordination, provide status updates and input as needed, and avoid duplicative work among regional projects. Consultant will be expected to participate in approximately two (2) meetings per month, for a total of 24 meetings up to (1) hour each. This may include but are not limited to:
• Meetings with City Staff
• City Council Meetings
• Meetings with State Agencies and County Transportation Commissions (CTCs) • SoCal Transformation Working Group
• SCAG’s Emerging Technology Committee (ETC)
• SCAG’s Transportation Committee (TC)
• SCAG’s Regional Council (RC)
Task 1.5: Grant Reporting Assistance
The Consultant shall assist SCAG with the LATA grant administration and periodic reporting per the requirements of the CPUC, which are available at https://www.cpuc.ca.gov/industries-and- topics/internet-and-phone/broadband-implementation-for-california/local-agency-technical- assistance.

A sample of the reporting requirements is available at: https://www.cpuc.ca.gov/-/media/cpuc- website/divisions/communications-division/documents/broadband-implementation-for- california/lata-reporting-requirements-dec-22.pdf.

Consultant shall provide SCAG with required documentation with sufficient time for review prior to CPUC reporting deadlines.
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Burns & McDonnell Engineering Company shall work with SCAG, and appropriate stakeholders to provide up to (16) monthly, (5) quarterly and (1) completion reports during the duration of the project as required, by Decision (D.) 22-02-026.

Task 1 Deliverables:

Task Deliverables

1.1 Project Management Plan

1.2 Project Schedule

1.3 Project Management Meetings, Agenda, Minutes, and Action Item Matrices

1.4 Meeting Minutes

1.5 Grant Reporting Materials and Attachments

Task 2: Broadband Infrastructure Existing Conditions Analysis1 Task 2.1: Regional Infrastructure Assessment of the SCAG Region The Consultant shall perform research and evaluation of broadband usage and an inventory analysis of technologies that are currently delivering internet service in the six-county SCAG region. This includes, and is not limited to, fiber optic, wireless, DSL, cable, and satellite services.2 The assessment will characterize existing infrastructure conditions which may consider:
• Type of technology (e.g., fiber, wireless, DSL, etc.) • Location (using longitudinal coordinates)
• Length and transmission radius (i.e., square miles)
o Capacity & availability of asset
o Access points to the public
o Owner
o Exchange points
o Number of internet providers
o Current pricing for the network based on advertised rates. o Subsidy subscriptions for the Federal Communications Commission Affordable Connectivity Program
o Overall digital adoption in the region

1 Please note that numerous local jurisdictions have conveyed their interest to collaborate with SCAG. SCAG (assisted by the Consultant) will contemplate the possibility of choosing three (3) local jurisdictions through the assessment of meetings, interviews, and a comprehensive analysis of their requirements, including the manual selection of three opportunity zones. SCAG asks respondents to this proposal to provide a Technical Approach tailored to this particular scenario.
2 Infrastructure assessment subject to available data. Proposal responses should indicate estimated costs associated with assumed data collection, sources, and availability. 240
Burns & McDonnell Engineering Company shall request, use existing (SCAG or local jurisdictions), or work with SCAG and/or local jurisdictions to find data sources, such as the following, as applicable and feasible, to inform assessments and findings:
• Aerial and Underground Electrical Plant Maps,
• Right of Way (ROW) / Easement Maps,
• Microwave/Wireless/LTE Coverage and Asset Maps,
• Fiber Optic Plant Maps,
• Fiber Optic Splice Schematics,
• Communication Network Access Point Schematics,
• Existing Customers Served by municipalities in SCAG’s region, e.g.:
• Public Entities,
• Municipalities & Rural Electric Co-Ops,
• Host Communities,
• Business & Industry,
• Healthcare, Educational & Cultural Institutions, and
• Electric Providers (Generators).

Burns & McDonnell Engineering Company shall utilize public data sources, such as the following, to inform assessments:
• U.S. Census Bureau Data
• National Telecommunications and Information Administration (NTIA) Broadband Need Indicators
• California Interactive Broadband Map (CIBM) for California Advanced Services Fund (CASF)
• Federal Communications Commission (FCC) Data
• U.S. Energy Information Administration (EIA) Data
• Rural Digital Opportunity Fund (RDOF) Data

Burns & McDonnell Engineering Company shall request updated and relevant data regarding existing infrastructure (transport, fiber, etc.). We assume this information shall be provided by SCAG. We prefer this data be provided in GIS format, where appropriate. While SCAG may not possess the data directly, we operate under the assumption that SCAG has knowledge of the data owner (Municipalities and Rural Electric Co-Ops in the SCAG’s region) and can facilitate an introduction to the relevant stakeholders. The Burns & McDonnell Engineering Company team will gather any additional data required that is not available after those engagements.

Task 2.2: Infrastructure Assessment ArcGIS File Geodatabase Based on work efforts referenced under Tasks 2.1 an ArcGIS File Geodatabase will be constructed for any GIS datasets gathered or generated. This information will be collected by 241
utilizing other databases, third-party research, information obtained from providers, and research from engineering or policy partners. Consultant shall develop the file geodatabase following SCAG’s Spatial Data/Metadata Requirements (See Appendix B) including documentation and review/agreement by SCAG during the project. Additionally, GIS deliverables produced for SCAG as a part of this project will be hosted by SCAG and published using services on ArcGIS server. Technical design should indicate the type of services to be used and relevant access/permissions required.

Burns & McDonnell Engineering Company shall create a GIS dataset which includes the following:
• Technology Classifications (fiber, wireless, xDSL, terrestrial) • Location of services
• Length and transmission radius
• Capacity and availability of asset, where data is publicly available • Access points to the public, where data is publicly available • Owner
• Exchange points
• Number of internet providers
• Current Pricing based on advertised rates
• Subsidy subscriptions for the Federal Communications Commission Affordable Connectivity Program
• Digital Adoption in the region
GIS Data shall be collected and presented at the census tract level, as defined by the United States Census Bureau. Affordable Connectivity Program GIS data shall be collected and presented by zip code as defined by the Federal Information Processing Standards (FPIS). GIS data shall only be provided for census tracts/zip codes within SCAG’s areas. Burns & McDonnell Engineering Company shall partner with SCAG on aligning the spatial/metadata requirements.

Task 2 Deliverables:

Task Deliverables

2.1 Regional Infrastructure Assessment

2.2 Regional Infrastructure Assessment ArcGIS File Geodatabase

Task 3: Needs and Market Assessment, Priority Area Identification, and Route Determination
Task 3.1: Needs Assessment Methodology and Determination of Priority Areas Using the findings from Task 2 and publicly available data, the Consultant will develop a needs assessment to prioritize three (3) areas for further analysis as a part of the project’s defined study 242
areas for Tasks 3-5. The assessment will focus on several variables to identify the hardest-to- reach unserved and underserved households, including, but not limited to:
• Disadvantaged Communities
• Continuum of Care (CoC) groups
• Low rates of internet adoption by residents
• Low rates of internet accessibility
• Existing infrastructure and middle mile segments
Further, special attention will be given to select priority areas in a range of developed contexts, including rural, suburban, urban, and Tribal communities. Upon determination, based on findings from the consultant and SCAG’s assessment, SCAG will engage with three (3) local jurisdictions to develop an implementation plan for last mile services.

Task 3.2: Public Outreach
The Consultant will conduct public outreach in the identified priority areas to research and better understand each community’s needs. Specific attention will be given to address connectivity needs. Outreach will involve but are not limited to:
• Conducting interviews, surveys, and/or focus group sessions with community agencies, educational institutions, healthcare clinics, key stakeholder groups, and other relevant groups in the Priority Areas to:
o Understand barriers that prevent study area communities from accessing reliable internet service. These can include barriers not limited to:
▪ Internet adoption
▪ Service affordability
▪ Access to infrastructure and devices
▪ Workforce, educational, social services need
Survey outcomes will inform, at minimum:
• The level of service needed in the area and the workforce required to deliver such service. • Connectivity preferences (e.g., where are they most likely to connect, how often do they rely on community institutions for these services, etc.) Consultant shall prepare and lead the following:
• Two (2) focus group or outreach sessions per Priority Area • Three (3) community surveys per Priority Area
• Five (5) interviews (virtual) per Priority Area
To ensure consistency of public information originating from SCAG, all public-facing informational materials must be reviewed and approved by SCAG’s Manager of Media and Public Affairs or a specified designee before release, distribution or presentation. This process for facilitating this review and approval will be discussed during the project kick-off meeting and as part of Task 3.1.
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Task 3.3: Gap Analysis and Public Asset Inventory for Priority Areas Upon completion of the Needs Assessment and outreach exercises, the Consultant will assist SCAG and inventory the public assets that may support broadband deployment in the priority areas. Public areas may be along public-right-of ways for the installation of Conduit, Fiber, Antennas, Poles, Towers, Active or abandoned facilities, and other applicable infrastructure. The consultant will evaluate general, economic development, capital plan and/or transportation plans that impact the priority areas and will assist in the identification of strategic and cost-effective methods of deploying broadband expansion in an organized and/or phased approach.

Task 3.4: Market Assessment Report
The consultant will develop a market assessment which will include a granular set of data with respect to the telecommunications environment detailing the location of facilities, types of services, pricing, availability, and limitations. Assessment of potential construction and operational relationships with public, private, and membership owned companies in the service area and with publicly and privately funded networks as suitable for interconnection. The assessment will determine what economic and community impact broadband issues are having within each selected area and will include an evaluation of key issues limiting broadband expansion and a phased, prioritized approach to broadband expansion. • Burns & McDonnell Engineering Company shall collaborate with SCAG to define the agreed services, such as wholesale, retail, community access. • Burns & McDonnell Engineering Company shall facilitate up to (2) 1-hour discussions of business and technical requirements and validate the understanding of existing infrastructure and the technology roadmap envisioned.
• Host up to (2) 1-hour review meetings to validate inputs and data collected. • Confirm any gaps in information that may prevent benefits. • Host up to (2) 1-hour meetings with SCAG to review regulatory environment and risk posture (what they are willing to provide) to align the service hierarchy. • Define the estimation model (benchmark, cost plus, cost recovery) • Identify gaps in the implementation plan that may require further investigation. • Summary of Findings Slide Deck Deliverable (PowerPoint) • Burns & McDonnell Engineering Company shall provide a report in executive slide deck format (PowerPoint) outlining the key findings and assumptions from the analysis. The primary sections covered in the report shall be:

• Executive Summary (1-2 slides),
• Market Segment Overview (4-6 slides)
o Summary of Markets
o Summary of Models
o Summary of Operating Models
o Summary of Revenue Models
• Key Market Opportunity (8-10 slides),
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o One (1) slide per agreed market opportunity with up to six (6) market opportunities considered.
• Other Notable Findings (2-4 slides),
• Conclusions & Next Steps (1 slide), and
• Appendices & Assumptions (as required).

Data collected from Tasks 2-3 will be translated into findings regarding infrastructure gaps, services issues, average cost of plans, cost of materials, labor associated with construction and cost of operation, and other barriers to broadband access (such as permitting).

Task 3.5: Route Determination Report
Based on the findings under Tasks 3.1 to 3.4, routes will be determined, evaluating the feasibility of the route and documentation of any roadblocks and hurdles which may delay the construction of these routes. Evaluations may consist of the following, but not limited to:
• Fiber to the Premises (FTTP) Networks
o Identify hut and/or Fiber Distribution Hub (FDH) locations per priority area o Identify the extent to which new underground (conduit) or aerial (poles) infrastructure will need to be installed
• Fixed Wireless Networks
o Location of wireless equipment sites needed per priority area o Identify extent to which new underground (conduit) or aerial (poles) infrastructure will need to be installed, when fiber optic backhaul is required rather than fixed wireless backhaul
• Identify any permitting or construction challenges while conducting surveys to support development of design alternatives
• Identify Right of Way, Access Control and Temporary Construction Easement requirements
• Identify any Multiple Dwelling Units (MDU), Multiple Tenant Units (MTU), and commercial properties
• Consider design implications of approved buildable land parcels. Most current data will be provided in consultation with local jurisdictions
• Verify fiber egress points to support single and redundant connections to existing and proposed CDT middle-mile network
• This report shall be up to (10) pages.

Task 3 Deliverables:

Task Deliverables

3.1 Needs Assessment Methodology Report, Partnership agreement (Local Jurisdiction/SCAG)

3.2 Public Outreach (including agenda, presentation materials, etc.)

3.3 Gap Analysis and Public Asset Inventory Report

3.4 Market Assessment Report
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3.5 Route Determination Report

Task 4: Last Mile Design for Local Jurisdictions
Based on the findings from Task 1-3, the Consultant will assist SCAG and selected jurisdictions in setting the foundation for last mile services in the three (3) priority areas. Work efforts will include specifics regarding the financing and implementation strategies, short-term and long- term actions needed to prepare the area for broadband implementation and include conceptual design and specifications to create a project ready for the next stages of project development.

Task 4.1: Internet Service Provider (ISP) Outreach
Based on the findings listed under Task 2-3, and at the request of the local jurisdiction, SCAG may ask the consultant to conduct interviews and focus group sessions with Internet Service Providers that operate in the Priority Areas. Outreach exercises will identify potential areas for partnership between the respective local jurisdictions and incumbent providers. Potential topics to discuss may include but not be limited to:
• Retail services & pricing to a range of customer segments, which may include residential and/or commercial
• Retail services & pricing to government, education, healthcare and anchor organizations • Retail services that leverage other utilities for outsourced content and services • Fiber leasing arrangements
• Revenue sharing agreements
• Open Access Model compliance
• Phased roll-out of lit services to customers
• Milestones & performance schedules for delivery of services. • Potential partnership arrangements with third-party asset owners (County, other private telecoms)
• Others to be determined throughout the course of the project.

Burns & McDonnell Engineering Company shall analyze Priority Areas and conduct (3) 2-hour interviews and focus group sessions with corresponding Internet Service Providers. Throughout this process, Burns & McDonnell Engineering Company shall identify prospective areas for partnership between the respective local jurisdictions and incumbent providers. SCAG and Burns & McDonnell Engineering Company shall agree upon the topics for the ISP outreach in up to (1) 1-hour discussion. SCAG may inquire Burns & McDonnell Engineering Company to lead interviews and focus group sessions with Internet Service Providers that operate in Priority Areas depending upon findings listed under Task 2-3 and at the request of the local jurisdiction.

Task 4.2: 10-Year Technology Last Mile Roadmap
The Consultant shall develop a (10) year last mile roadmap of up to (20) pages. The roadmap will identify a list of recommended solutions for each opportunity areas. The roadmap will 246
identify the differences between active Ethernet, passive optical, and fixed wireless networks from selection, design, impacts, and cost comparisons. Inventory of vendor products may include key features of each platform consisting, but not limited to, the following:
• Hardware capacities
• Software specifications
• Environmental and management capabilities
• Equipment management software functionality for service configuration, surveillance, performance, and administration.

The roadmap will include the limitations of each technology (e.g., insufficient capacity to or inability to support real-time traffic such as voice over IP or Broadcast video), elements that would affect consumer and/or carrier adoption, and the extent to which these limitations can be mitigated. The roadmap will convey the market availability of next generation technologies (e.g., technologies that are in production by multiple manufacturers), and any market constraints that would affect their adoption. If applicable the roadmap will include forecasts (if any) of when the technology will reach ‘end of life’ within the next 10 years.

SCAG or partnering local jurisdictions key stakeholders and decision-makers will actively participate in the data gathering sessions to validate our comprehension of their expectations for the 10-year roadmap. They will play a pivotal role in establishing the vision for the roadmap and can provide insights on the bullet points outlined in section 4.2 if guidance is required.

Task 4.3: Financing and Implementation Assessments
The Consultant will develop strategies and recommendations for financing and implementation which may include but are not limited to:
• Include order of magnitude cost estimations for network implementation, construction, specifications, operations, and maintenance, over a 10-year period timeframe. • Identify potential funding sources and provide strong justification for funding to serve as the basis for a grant/loan application to support project implementation. • Provide strategic guidance in the planning of a broadband connectivity project that can be implemented as cost-effectively and quickly as possible for the purpose of enabling economic development and citizen connectivity.
• Scenarios of potential construction and operational relationships with public, private, and membership owned companies in the service area and with publicly and privately funded networks as suitable interconnection.
• Recommendations for legal and operational changes, including regional roles and responsibilities, to address the gap analysis and market assessment findings. • Burns & McDonnell Engineering Company in conjunction with SCAG would create a list of up to (10) potential partners, supporting entities and stakeholders for ongoing engagement. This list of qualified entities would be in alignment with the long-term SCAG broadband grant strategy and for solicitation of support documents as required for successful submittal of grant applications.
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Task 4.4: Last Mile Conceptual Design Drawings
Burns & McDonnell Engineering Company shall produce and provide three preliminary conceptual drawings that illustrate potential routes and access points for potential customers to be served by the proposed network. These proposed access points shall consist of either a fiber to the premise (FTTP) option or a fixed wireless option based on the unique requirements of the area being served., which local agencies can use towards last mile expansion for each priority area, and will also factor:
• Estimated unit count (households or businesses consisting of one or more people living or working together that occupy all or part of a standalone building) o These preliminary counts shall be pulled from existing county parcel data and preliminarily verified with a desktop review of the data. • Estimated number of telephone poles
o These vertical assets shall be pulled from SCAG provided data or publicly available data of the existing distribution assets within the priority areas being served and preliminarily verified with a desktop review of the data. • Estimated route miles
o These preliminary counts shall be identified from the preliminary conceptual maps that Burns & McDonnell Engineering Company would produce, and the data behind them would be from SCAG provided data, publicly available data, third party data, or Burns & McDonnell Engineering Company produced data for the purpose of this project and preliminarily verified with a desktop review of the data.
• Square miles
• Proposed technology to be deployed.

These route designs will identify the roads to be included in each build-out scenario. Further this task will also require the identification of installation types for the fiber optic cables (e.g., new/existing aerial, new/existing underground, and dark fiber).

Task 4.5: Technology Deployment Strategy
Building upon the last mile conceptual design drawings, the Consultant will develop high-level design schematics for each of the determined routes.3 Last mile schematics will be designed to accommodate a minimum of 100/20 speeds. Consultant team shall indicate the level of information feasible within the available budget range in their proposal response. Designs may include, but are not limited to, the following:
• General Requirements
o Network technology
o Premise location maps
o Percentage existing/new aerial/underground

3 This task requires a minimal level of engineering work and is not intended to advance to preliminary engineering (PE), which would be performed by an agency other than SCAG and after the conclusion of this project. 248
o Design Layer 1 (physical), Layer 2 (switching) and Layer 3 (routing) architecture that may utilize network equipment with considerations around remote management.
o Project budget spreadsheets (e.g., material and labor construction estimates including prevailing wage requirements)
o Growth, redundancy, and owner-specified service level projections o Network capacity plans that demonstrate support for the required data speeds o Opportunities to leverage the existing broadband infrastructure such as dark fiber or planned infrastructure such as CDTs proposed middle mile segments. • FTPP Networks
o Physical topology
o Potential hut location
o Splitter placements
o Driveway lengths
o Cable management recommendations
• Fixed Wireless networks
o Potential fixed wireless equipment sites
o Fixed wireless propagation maps
Task 4 Deliverables:

Task Deliverables

4.1 Internet Service Provider Outreach (including agenda, presentation materials, survey data, etc.).

4.2 10-Year Technology Last Mile Roadmap

4.3 Financing and Implementation Report

4.4 Last Mile Design Drawings

4.5 High-Level
Design Schematics and Report

Deliverables shall be provided in accordance with Exhibit B, Schedule. Copies of all required Deliverables for each Task as noted above shall be provided to the SCAG’s Project Manager.

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CONTRACT NUMBER 24-024-C01

AGREEMENT BETWEEN THE SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS AND BURNS & MCDONNELL ENGINEERING COMPANY, INC.

THIS AGREEMENT (“Agreement”), is made and entered into, by and between the Southern California Association of Governments, hereinafter referred to as “SCAG”, and Burns & McDonnell Engineering Company, Inc., hereinafter referred to as “Consultant,” each of which is sometimes individually referred to as “Party” and collectively referred to as “Parties.”

RECITALS

WHEREAS, SCAG is a Joint Powers Agency and a federally designated Metropolitan Planning Organization for Southern California. SCAG is primarily responsible for developing the regional transportation plan and transportation improvement program for the counties of Los Angeles, Orange, San Bernardino, Riverside, Ventura, and Imperial;

WHEREAS, pursuant to SCAG’s annual Comprehensive Budget, SCAG will be engaged in many activities and projects that will require certain technical, professional, or support services from time to time;

WHEREAS, all obligations of SCAG under this Agreement are subject to the availability of funding from SCAG’s funding source;

WHEREAS, SCAG’s Fiscal Year is from July 1 through June 30;

WHEREAS, this Agreement is funded through the California Public Utilities Commission Local Agency Technical Assistance (LATA) Grant Program, and is subject to all the requirements in the most current version(s) of the LATA Grant Program Decision (D.22-02-026), Guidelines, and Attachments which are incorporated herein by this reference, and is subject to applicable Caltrans requirements for architectural and engineering (A&E) projects;

WHEREAS, SCAG seeks to retain the Services of Consultant to provide Last Mile Project Assessment for the SCAG Region (“Project”); and

WHEREAS, Consultant agrees to perform the Services required by SCAG on the terms and conditions set forth below.

TERMS OF AGREEMENT

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereby agree as follows:

1. Agreement Contents

This Agreement is comprised of these terms and conditions and any attached exhibits. Such terms and conditions are subject to change pursuant to Section 9 in the event requirements are changed by SCAG’s funding agencies and/or sources. The Recitals to this Agreement are also incorporated herein by this reference.

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2. Scope of Work

Consultant shall be responsible for the complete performance of all tasks, obligations, and responsibilities described in the “Scope of Work,” Exhibit A (“Services”), attached hereto and incorporated herein by this reference. Consultant shall furnish all technical and professional services, including labor, transportation, supervision and experience, and incidental and customary work necessary to fully and adequately supply the Services.

3. Term

a. The Term of this Agreement shall begin on the Effective Date (Section 47) of the Agreement and continue until June 30, 2025, hereinafter referred to as the “Completion Date,” unless terminated earlier as provided herein.

b. Services performed under this Agreement shall commence only upon issuance by SCAG to Consultant of a Notice to Proceed.

c. Consultant Services and reimbursements beyond June 30 th of each Fiscal Year are subject to the inclusion and funding agency approval of this Project in the Comprehensive Budget for each Fiscal Year. Therefore, on June 30 th of each Fiscal Year, the Consultant must s uspend all work under this Agreement until the Consultant receives an executed Unilateral Amendment, as described in Sections 5.e. and 9.c. of this Agreement, allowing the work to continue and including the Available Funding Schedule. Consultant shall not be liable for delays to the project caused by any such suspension. See “Unilateral Amendment Form,” Exhibit E, attached hereto and incorporated herein by this referen ce. In the event this Project is not approved in the Comprehensive Budget for each Fiscal Year this Agreement shall terminate effective June 30th of the Fiscal Year funding was provided, as specified in the “Available Funding Schedule,” Exhibit D-1, attached hereto and incorporated herein by this reference.

d. Time is of importance in the performance of Services under this Agreement.

4. Schedule and Staffing

a. Consultant shall be responsible to SCAG for performing all Services described in the Scope of Work in a timely manner as set forth in the “Schedule,” Exhibit B, attached hereto and incorporated herein by this reference.

b. Services described in the Scope of Work shall be performed by Consultant’s staff, subcontractors or other members of the project team, hereinafter referred to as “Subconsultant(s),” listed in the “Line Item Budget/ Price Sheet,” Exhibit C, attached hereto and incorporated by this reference.

There shall be no change in the designation of Consultant staff, Subconsultant(s), or any other information as identified in the Line Item Budget/Price Sheet without the prior written approval of the SCAG Chief Financial Officer. No portion of the work included in this Agreement shall be subcontracted, except as provided herein, without the prior, written authorization of the SCAG Chief Financial Officer.

c. Nothing contained in this Agreement or otherwise, shall create any contractual relation between SCAG and any Subconsultants, and no sub agreement shall relieve the Consultant of its responsibilities and obligations hereunder. The Consultant agrees to be as fully responsible to SCAG for the acts and omissions of its Subconsultants and of persons either directly or indirectly 24-024-C01
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employed by any of them as it is for the acts and omissions of persons directly employed by the Consultant. The Consultant’s obligation to pay its Subconsultants is an independent obligation from SCAG's obligation to make payments to the Consultant.

5. Compensation

a. The method of payment for this Agreement shall be based on lump sum with progress payments.

The total lump sum price paid to Consultant shall include compensation for all work and deliverables, including travel and equipment described in the attached Scope of Work. No additional compensation shall be paid to Consultant, unless there is a change in the scope of the work or the scope of the project. In the instance of a change in the scope of work or scope of the project, adjustment to the tota l lump sum c ompensation shall be negotiated between Consultant and SCAG. Adjustment in the total lump sum compensation shall not be effective until authorized by Agreement amendment and approved by SCAG.

b. The maximum amount payable under this Agreement, including all expenses, shall not exceed $838,708.24, subject to Sections 3 (Term) and 6 (Funding Requirements) of this Agreement.

c. Consultant shall be paid upon percent of completion in accordance with the Price Sheet, Exhibit C.

d. This is a multi-fiscal year contract. Unexpended funds are not automatically carried over into the next Fiscal Year.

e. Subject to Section 3.c. (Term), for Services rendered, Consultant shall receive funding in accordance with the “Available Funding Schedule,” Exhibit D -1, and Services shall be invoiced in accordance with the Price Sheet, Exhibit C, subject to Section 3(c). Consultant shall not invoice SCAG in excess of the Available Funding Schedule or in advance or after the Funding Period as identified in the Available Funding Schedule or subsequent Amendments to the Available Funding Schedule.

f. Invoices for payment shall refer to the Project Number(s) as specified in the “ Available Funding Schedule,” Exhibit D-1.

6. Funding Requirements

a. It is mutually understood between the Parties that this Agreement may have been written before ascertaining the availability of funds for the total value of this Agreement, in order to avoid program and fiscal delays that may occur if the Agreement were executed after that determination was made.

b. It is mutually agreed between the parties that SCAG reserves the option to terminate this Agreement in accordance with the provisions of Section 19, Termination or to amend this Agreement to reflect any reduction or changes in fundings.

7. Project Manager

a. Consultant shall coordinate all work pursuant to this Agreement with SCAG through the Project Manager. For purposes of this Agreement, SCAG designates the following Project Manager:

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Roland Ok
SCAG Project Manager
(213) 236-1819
[email protected]

b. SCAG reserves the right to change the above designation upon written notice to Consultant. The SCAG Project Manager shall review progress reports, approve invoices and determine whether the Consultant’s performance under the Scope of Work has been satisfactorily completed.

c. The Consultant designates the following Consultant Project Manager:

Neelou Sattarin
Consultant Project Manager
(913) 221-6094
[email protected]

d. The Consultant shall not change the designation of the Consultant Project Manager or other key personnel stated above without the prior written approval of the SCAG Project Manager.

8. Assignment and Change in Ownership or Control

a. Neither Consultant nor SCAG shall assign any interest in this Agreement, and shall not transfer the same, without written notification to and the prior written consent of the other party in a form approved by the SCAG Chief Financial Officer.

b. In the event of any change in ownership or control of Consultant’s firm or Subconsultant’s firm, Consultant shall provide written notification to SCAG and SCAG shall determine the impact on this Agreement, if any, of such change, and provide its response t o Consultant within thirty (30) days from the date notification is received by SCAG.

9. Agreement Changes

a. No alteration or deviation of the terms of this Agreement shall be valid unless made in writing in the form of a contract Amendment and fully executed by the Parties, or in the form of a unilateral Amendment signed by SCAG only under the circumstances and process set forth in Section 9.c. of this Agreement. The Consultant Project Manager or SCAG Project Manager shall initiate a standard contract Amendment via the “Contract Amendment Request Form” (Request), Exhibit J, attached hereto and incorporated herein by this reference. A Request only initiates the contract amendment process. SCAG must still approve the actual Contract Amendment (Amendment).

Such Amendment shall not become effective without the full execution by the Parties. The Effective Date of such Amendment shall be set forth in the Amendment, and shall be no earlier than the date that SCAG received the Request. SCAG shall disallow any and all costs incurred by the Consultant or Subconsultant(s) prior to the Effective Date of an Amendment resulting from a Request.

b. SCAG may request, at any time, Amendments to this Agreement and will notify the Consultant regarding such changes. Within ten (10) business days from the date of the written notice, Consultant shall notify SCAG of the impact of such changes on the Scope of Work, Schedule and Budget. Upon agreement between the Parties as to the requested changes, an Amendment to this Agreement shall be prepared regarding the same.
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c. SCAG may additionally unilaterally amend the Agreement if such Amendment relates solely to an administrative revision by SCAG of the Available Funding Schedule under Section 5.e, as set forth in Exhibit D-1. This type of Amendment is administrative in nature and allows SCAG to make adjustments to the funding of the Agreement without materially impacting the Scope of Work , Schedule or Budget. SCAG shall notify Consultant of this unilateral Amendment to the Agreement within ten (10) days from the date of the unilateral Amendment. SCAG will not use the unilateral Amendment to reduce funding.

10. Invoicing for Payment

a. SCAG shall reimburse the Consultant as promptly as its fiscal procedures permit, upon receipt of invoices submitted in accordance with this Agreement. Consultant agrees to be paid using SCAG’s ACH Vendor Payment Authorization Form (available at:
scag.ca.gov/opportunities/Pages/BusinessWithSCAG.aspx. The Consultant shall complete the ACH Form and email it to [email protected], prior to executing th is Agreement. The Consultant shall email all invoices to [email protected].

b. In the event Consultant performs work after the Notice to Proceed but before the State Budget is approved, Consultant agrees that SCAG shall have no obligation to make payment for such work until after the State Budget is approved. No interest or other penalty shall be paid by SCAG.

c. Invoices for payment shall be submitted monthly for the previous month’s work . All Invoices shall be accompanied by one (1) original of the written narrative of the work (“Progress Reports”) The Progress Reports shall describe the percentage and status of work completed , as identified in the Scope of Work, technical papers, draft documentation, and any completed products. The purpose of the Progress Reports is to allow SCAG to determine if the Consultant is completing the activities identified in the Scop e of Work, in accordance with the agreed upon Schedule, and to provide opportunity to describe difficulties or special problems encountered so solutions can be developed. If Consultant fails to submit the required deliverable items according to the schedule set forth in Exhibit B, SCAG shall have the right to terminate this Agreement in accordance with the provisions of Section 19, Termination.

d. Invoices for payment shall be submitted by the last day of each month (“Invoice Due Date”) for the previous month’s work . Invoices not received by SCAG within thirty (30) calendar days of the Invoice Due Date may be assessed a $1 ,000 penalty per invoice, which shall be deducted by SCAG in the payment of the invoice.

e. Invoices for payment for Services rendered through June 30th of each Fiscal Year, in which the funding was provided, as specified in the “ Available Funding Schedule ,” Exhibit D -1, must be received by SCAG on or before July 21 of each fiscal year. SCAG shall not be obligated for payment of invoices received after such date. The format and content of all such invoices shall comply with Sections 11 (Invoicing Format and Content) and 3 7 (Cost Principles) of this Agreement.

f. The final invoice must contain the final cost and all credits due SCAG under the provisions of this Agreement. If the final invoice is not submitted within sixty (60) calendar days after completion of Consultant’s work, unless a later date is approved by SCAG, it may be ineligible for payment.

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g. Prompt Payment to Subconsultants: A Consultant or Subconsultant shall pay any sub -tier consultant for satisfactorily completed work no later than fifteen (15) days of receipt of each payment from SCAG. The fifteen (15) calendar days period is applicable unless a longer period is agreed to in writing. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from Consultant or Subconsultant to a subconsultant, Consultant or Subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the Consultant or Subconsultant, as applicable, to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.

The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non -DBE subconsultants.

11. Invoicing Format and Content

a. All invoices submitted to SCAG for payment shall be e-mailed to [email protected] (file cannot exceed 10MB).

b. The invoice shall be entitled “Invoice” or otherwise clearly identify that the document is an Invoice, and shall contain the following information:
(1) SCAG’s “Bill To” information as stated in the above paragraph “a.” of this section; (2) Invoice number and/or billing number specified by Consultant. The invoice number must be unique for each invoice submitted;
(3) Invoice date;
(4) Billing period specified with beginning and ending dates. The beginning date must not be sooner than the Notice to Proceed date of the Agreement, or within any previous billing dates; (5) Total amount due for the billing period;
(6) Contract Number, Purchase Order Number , Project/Task Number, and Vendor Number (as identified in Exhibit D-1 or Notice to Proceed letter)
(7) Total Contract Value (as identified in Exhibit D-1); and (8) SCAG Project Manager.

c. All invoices shall specify the tasks/deliverables completed in accordance with the tasks/deliverables set forth in the Scope of Work and Price Sheet, using the format specified in Exhibit C.

d. Consultant shall invoice SCAG in United States currency and SCAG shall only reimburse Consultant in United States currency. If Consultant provides receipts in any currency other than United States currency to support its invoices, Consultant must convert each receipt to United States currency and document how the Consultant made the conversion or SCAG shall not reimburse the Consultant for such invoices.

12. Agreement Completion Retainer

No retainage will be held by SCAG from progress payments due to Consultant. Consultant is prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with SCAG’s prior written approval. Consultant shall include the same requirement in any Subconsultant contract. Any violation of these provisions shall subject the violating Consultant or Subconsultant to the penalties, sanctions, and other remedies specified in 24-024-C01
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Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative, or judicial remedies, otherwise available to the Consultant or Subconsultant in the event of a dispute involving late payment or nonpayment by the Consultant, deficient Subconsultant performance, and/or noncompliance by a Subconsultant. This clause applies to both DBE and non-DBE Subconsultants.

13. Satisfactory Performance; Preliminary Review of Work

a. Payment for Services under this Agreement is contingent upon SCAG’s determination that the performance of the Consultant has been satisfactory, in accordance with the Scope of Work and Section 46 (Standard of Care).

b. All reports, working papers, and similar work products prepared for submission in the course of providing Services under this Agreement shall be submitted to the SCAG Project Manager in draft form, and SCAG may require revisions of such drafts prior to formal submission and approval. In the event that SCAG Project Manager determines the formally submitted work product to be not in accordance with the standard of care established under this contract, SCAG Project Manager may require Consultant to revise and resubmit the work at no cost to SCAG pursuant to the limitations of Section 46.

14. Penalty

a. A ten percent (10%) penalty shall be imposed for each thirty (30) day calendar period beyond the Agreement completion date, as specified in Section 3 (Term) of this Agreement, if the complete product, as described in the Scope of Work, is not received and approved by SCAG by the completion date. Such penalty shall be based on the total value of the Agreement, and shall not be imposed if the delay is caused b y SCAG , a third party, or is subject to Section 48 (Force Majeure) of this Agreement . Such penalty payment and termination under section 19 will be the sole and exclusive remedies of SCAG for Consultant’s delayed performance, provided, however, SCAG retains all rights and remedies specified under Section 19 of this Agreement.

b. Notwithstanding the above paragraph, the Consultant may request an extension in writing, outlining the reasons for the delay and the new expected completion date. All such requests shall be submitted to the SCAG Chief Financial Officer, and if approved, s hall require a written Amendment to this Agreement fully executed by the Parties.

15. Quarterly Progress Reports

a. The Consultant shall submit a Quarterly Progress Report to the SCAG Project Manager no later than five (5) days after the close of each quarter (i.e., for the first quarter, ending September 30, the deadline is October 5), describing progress toward completion of all tasks, Services, and products, conformance with schedules, and reporting of all costs incurred for the Project Number(s) as specified in the “Available Funding Schedule ,” Exhibit D -1. In the submittal of Quarterly Progress Reports, the Consult ant shall include all completed products, in a form determined by the SCAG Project Manager.

b. SCAG reserves the right to deem incomplete any Quarterly Progress Report that does not sufficiently document the above -required information and may withhold payment of invoices submitted pending the submission of required documentation by the Consultant.

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c. The Consultant Project Manager shall meet with the SCAG Project Manager, as needed to discuss work progress.

16. Inspection of Work; Safety

The Consultant and any Subconsultants shall permit Caltrans, SCAG and any designee of SCAG the opportunity to review and inspect the Service activities at all reasonable times during the performance period of this Agreement including review and inspection on a daily basis.

Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures. Consultant shall comply with safety instructions issued by any SCAG safety officer and other SCAG representatives. Consultant personnel shall wear hard hats and safety vests at all times while working on the project site, as applicable.

Pursuant to the authority contained in Vehicle Code §591, SCAG has determined that the limits of the Project are open to public traffic. Consultant shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of Consultant’s vehicles.

17. Written and Electronic Versions of Work Products and Related Work Materials

a. For purposes of this Agreement, “Work Products” shall mean all deliverables created or produced from Services under this Agreement including, but not limited to, all Work Products conceived or made, either solely or jointly with others during the term of t his Agreement, which relates to the Services commissioned or performed under this Agreement. Work Product includes all deliverables, innovations, improvements, or other works of authorship Consultant and/or Subconsultant may conceive of or develop in the c ourse of this Agreement, whether or not they are eligible for patent, copyright, trademark, trade secret or other legal protection.

b. For purposes of this Agreement, “Related Work Materials” shall mean all materials obtained, created by or provided to Consultant pursuant to this Agreement. Such materials shall include but are not limited to ideas, notes, written documents, memoranda spe cifications, plans, procedures, drawing descriptions, computer program data, input record data, databases, software, and source codes. Related Work Materials shall include “Intellectual Property,” including but not limited to copyrights, test data, trade secrets, and confidential information.

c. For purposes of this Agreement, “Inventions,” shall mean any ideas, methodologies, designs, concept, technique, invention, discovery, improvement or development regardless of patentability made solely by the Consultant or Subconsultant during the term of this Agreement and in performance of any Services under this Agreement, provided that either the conception or reduction to practice thereof occurs during the term of this Agreement and in performance of any Services under this Agreement.

d. During or upon completion of the Scope of Work, Consultant shall deliver to the SCAG Project Manager all Work Products and Related Work Materials. Such materials shall be provided in electronic PDF format as follows:

(1) One (1) electronic PDF copy in a medium pre-approved in writing by the SCAG Project Manager;
(2) Two (2) electronic copies of all software (including source code, User’s Manual and full 24-024-C01
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documentation in printed and electronic form), databases, and web materials; (3) Two (2) double-sided hard copies and two (2) electronic copies of all material prepared for and used in presentations, including overhead, power point and hard copy presentations; (4) Copies of all photographs taken at meetings, conferences, or Project sites in conjunction with the work performed pursuant to this Agreement. High-resolution tiff or jpeg files from digital cameras are preferred. Files may be sent on ZIP disk or CD -ROM. Traditional photographic prints are also acceptable; and,
(5) Other Related Work Materials, as requested by the SCAG Project Manager.

e. The electronic versions of all written materials and accompanying graphic images shall, when printed or otherwise displayed, appear in the identical format, location, quality, and state of replicating in which they appear in the hard copy versions. Simila rly, any graphic images accompanying the text of these written materials shall be included, in digitized form, in the electronic version in the same places in which they appear in the hard copy version.

f. Reserved.

g. The title pages of all written Work Products produced under this Agreement shall include the following:

"The preparation of this report has been financed in part through grant[s] from the Federal Highway Administration and Federal Transit Administration, U.S. Department of Transportation (DOT). The contents of this report do not necessarily reflect the official views or policy of the U.S. Department of Transportation."

h. All written Work Products produced under this Agreement shall further contain the following disclaimer in a separate section preceding the main body of the document:

“The contents of this document reflect the views of the author who is responsible for the facts and accuracy of the data presented herein. The contents do not necessarily reflect the official views or policies of SCAG or DOT. This report does not constitute a standard, specification or regulation.”

i. Geographic Information System (“GIS”), spatial data, and databases provided to SCAG pursuant to this Agreement shall be accompanied by metadata conforming to the requirements specified in Exhibit F, “Spatial Data/Metadata Requirements,” attached hereto and incorporated herein by this reference.

j. Graphics products must conform to the requirements specified in Exhibit G, “Graphics Requirements for Consultants”, attached hereto and incorporated herein by this reference.

k. Web material prepared or acquired under this Agreement shall conform to the requirements specified in Exhibit H, “Web Policies a nd Guidelines for Consultants” , attached hereto and incorporated herein by this reference.

l. Mapping prepared or acquired under this Agreement shall conform to the requirements specified in Exhibit I, “Mapping Guidelines for Consultants ”, attached hereto and incorporated herein by this reference.

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18. Ownership, Confidentiality, and Use of Work Products

a. All Work Products and Related Work Materials including Intellectual Property, as defined in Section 17, of this Agreement, shall become the property of SCAG, and all publication rights are reserved to SCAG. The Consultant shall not copyright Work Products or Related Work Materials.

b. Related Work Materials including Intellectual Property obtained by Consultant pursuant to a third party agreement and related to the Services provided by Consultant pursuant to this Agreement, shall become the property of SCAG.

c. Consultant shall cooperate in the execution of all documents necessary to protect SCAG’s rights to such materials. Consultant shall notify SCAG in writing of all Intellectual Property developed or conceived in the course of its performance under this Agreement.

d. Consultant shall assign and does hereby assign to SCAG all rights, title and interest to Intellectual Property conceived or developed by Consultant in the course of Consultant work pursuant to this Agreement. Consultant shall cooperate in the execution of all documents necessary to protect SCAG’s rights to the Intellectual Property.

e. Subject to the California Public Records Act, all Work Products and Related Work Materials including Intellectual Property shall be held confidential by Consultant. Nothing furnished to Consultant, which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential.

f. The Consultant shall not use, release, reproduce, distribute, publish, adapt for future use or otherwise use Work Products and Related Work Materials for purposes other than the performance of the Scope of Work, nor authorize others to do so, without prior written permission of SCAG Legal Counsel; nor shall such materials be disclosed to any person or entity not connected with the performance of the Services. Consultant shall also safeguard such confidential materials from unauthorized disclosure, using th e same standard of care to avoid disclosure, as the Consultant treats its confidential information, but in no case less than reasonable care.

g. Upon termination of this Agreement or when requested to do so by SCAG, Consultant shall erase all copies of Work Products and Related Work Materials from its computers provided that Consultant may retain one (1) copy of the Confidential Information for its own archival and legal purposes, including any Confidential Information found in electronic backup systems routinely overwritten in the ordinary course of business where the obligations under this Agreement will terminate.

h. Reserved.

i. SCAG may utilize any Work Products or Related Work Materials provided by Consultant pursuant to this Agreement, in any manner which SCAG deems appropriate without additional compensation to Consultant.

19. Termination

a. Termination Resulting from Lack of Approval in the Comprehensive Budget

In the event that the Services provided for under this Agreement is not approved in the next 24-024-C01
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Comprehensive Budget , the subsequent Comprehensive Budget , or Comprehensive Budget Amendments, this Agreement, as provided in Section 3 (Term), is deemed to be terminated effective June 30th of the applicable Fiscal Year.

b. Termination for Convenience by SCAG

SCAG may terminate this Agreement at any time for any reason or for no reason by giving notice to the Consultant of such termination (including the effective termination date) at least thirty (30) calendar days before the effective date of such termination.

In such event, all finished or unfinished documents and other materials as described in this Agreement, at the option of SCAG, become SCAG’s property. If this Agreement is terminated by SCAG, as provided herein, SCAG’s only obligation shall be the payment of fees and expenses incurred prior to the termination date, in accordance with the cost provisions of this Agreement.

c. Termination for Cause

If through any cause, the Consultant shall fail to fulfill in a timely and proper manner its obligations under this Agreement, or if the Consultant violates any of the covenants, terms, or stipulations of this Agreement, SCAG shall thereupon have the right to terminate the Agreement by giving not less than ten (10) working days written notice to the Consultant of the intent to terminate and specifying the effective date thereof. In such event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other materials prepared by the Consultant under this Agreement shall, at the option of SCAG, become SCAG’s property.

Notwithstanding any provisions of this Agreement, Consultant shall not be relieved of liability to SCAG for damages sustained by SCAG by virtue of any breach of this Agreement by Consultant, and SCAG may withhold any payments due to Consultant until such t ime as the exact amount of damages, if any, due SCAG from Consultant is determined.

20. Compliance with Laws, Rules, and Regulations

Consultant shall perform all Services under this Agreement in accordance and in full compliance with all applicable Federal, State and local statutes, rules, regulations, and policies and procedures and shall secure and maintain all licenses or permits required by law.

21. Independent Contractor

The Consultant agrees to provide the Services set forth in this Agreement in the capacity of an independent contractor and neither the Consultant nor any Subconsultants or any of their employees or agents shall be considered to be an employee or agent of SCAG.

SCAG is not required to make any deductions or withholdings from the compensation payable to Consultant under the provisions of the Agreement, and is not required to issue W-2 Forms for income and employment tax purposes for any of Consultant's assigned pe rsonnel. Consultant, in the performance of its obligation hereunder, is only subject to the control or direction of SCAG as to the designation of tasks to be performed and the results to be accomplished.

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22. Conflict of Interest

a. During the term of this Agreement, Consultant shall disclose any financial, business, or other relationship with SCAG that may have an impact upon the outcome of this Agreement or any ensuing SCAG construction project. Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement or any ensuing SCAG construction project which will follow.

b. Consultant and any Subconsultants (regardless of the sub-tier) agrees to abide by the SCAG Conflict of Interest Policy as it applies to “consultants,” as defined under the SCAG Conflict of Interest Policy, posted at: https://scag.ca.gov/get-involved-contract-vendor-opportunities

c. Consultant further agrees that during the term of this Agreement, it shall not accept employment from any other person, firm or corporation where such is a conflict of interest or where it is likely to lead to a conflict of interest between SCAG’s interest and the i nterest of such person, firm or corporation or any other third party.

23. Contingency Fees or other Unlawful Consideration

a. The Consultant represents, by execution of this Agreement, that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employe es or bona fide established commercial or selling agencies maintained by the Consultant for the purpose of securing business. For breach or violation of this representation, SCAG has the right in its sole discretion to terminate t his Agreement with its only obligation to pay for the value of the work actually performed, or to deduct from the Agreement price, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingency fee.

b. The Consultant further warrants that this Agreement was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any SCAG employee. For breach or violation of this warranty, SCAG shall have the right, in its sole discretion, to terminate the Agreement without liability, to pay only for the value of work performed, or to deduct from the Agreement price or otherwise recover the full amount of each rebate, kickback or other unlawful consideration.

24. Release of Information

Consultant shall not release any information to a third party or otherwise publish or utilize any information obtained or produced by it as a result of or in connection with the performance of Services under this Agreement without the prior written authorization of the SCAG Chief Financial Officer.

25. Disputes

Prior to either party commencing any legal action under this Agreement, the Parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty - five (45) days of good-faith negotiations and as may be otherwise provided herein, then the provision below shall apply.

Except as otherwise provided in this Agreement, any dispute arising under this Agreement which is not resolved by mutual agreement shall be decided through binding arbitration by a three (3) member 24-024-C01
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panel in accordance with the rules of the American Arbitration Association and as provided in this provision; if this provision differs from the rules of the American Arbitration Association, then this provision shall control. Consultant shall continue with the responsibilities under this Agreement during any dispute until the dispute is resolved. A judgment upon the award rendered by arbitration may be entered into any court having jurisdiction thereof. The arbitration panel shall have the authority to grant any remedy or relief that would have been available to the parties had the matter been heard in a court of law. Following arbitration, the arbitration panel shall prepare a written decision containing the essential findings and conclusions on which the award is based so as to ensure meaningful judicial review of the decision. All expenses and fees for the arbitrator and expenses for hearing facilities and other expenses of arbitration shall be borne equally by both parties unless they agree otherwise or unless the arbitrator in the award assesses such expenses against one of the parties or allocates such expenses other than equally between the parties. Either party may bring an action in court to compel arbitration under this agreement and to enforce an arbitration award.

26. Indemnity

a. Consultant is responsible for all its employees and contractors.

b. When the law establishes a professional standard of care for Consultant’s Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless the Cities, SCAG, and their members, officers, Regional Council Board members, City Council members, and employees from and against any and all losses, liabilities, damages, costs and expenses, including reasonable attorney’s fees and costs to the extent caused in whole or in part by any negligent act, error or omission of Consultant, its employees, or subconsultants arising out of the performance of professional Services under the Scope of Work in this Agreement. If Consultant’s obligation to defend indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to claims to the extent caused by the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction , Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

c. For all other Services performed by Consultant pursuant to this Agreement, the Consultant shall indemnify, protect, defend and hold harmless the Cities, SCAG, and their members, officers, Regional Council members, City Council members, and employees from and against any and all losses, liabilities, damages, costs and expenses, including reasonable attorney’s fees and costs to the extent caused by in whole or in part, the negligent performance of the Scope of Work in this Agreement by the Consultant, its employees or subconsultants.

d. Consultant shall defend indemnify , and hold harmless the Cities, SCAG, and their members, officers, Regional Council Board Members, City Council members , and employees against any and all claims against SCAG based upon allegations that Consultant has wrongfully utilized Intellectual Property of others in performing work pursuant to this Agreement or that SCAG or the Cities have wrongfully used Intellectual Property developed by Consultant pursuant to this Agreement, provided, however, the indemnity obligati on set forth in this Section 26(e) will not apply to the extent that the right that is a subject of any alleged infringement claim was supplied in accordance with SCAG’s design or the infringing Services or reports and programs was modified by SCAG or was combined by SCAG with items not furnished pursuant to the Agreement.
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27. Claims by Construction Contractor.

a. If claims are filed by the construction contractor relating to work performed by Consultant’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant may but is in no way obligated to make its personnel available for consultation and for fact testimony, if necessary, at depositions and at trial or arbitration proceedings.

b. Consultant’s personnel that SCAG considers essential to assist in defending against construction contractor claims may but is in no way obligated to be made available on reasonable notice from SCAG. Only when requested by SCAG, Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for Consultant’s personnel services under this Agreement.

c. Services of Consultant’s personnel in connection with any construction contractor claims may, but is no way obligated to be performed pursuant to a separate written contract.

28. Non-Discrimination/Equal Employment Opportunity

a. The Consultant’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the Consultant has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.

b. Consultant and its Subconsultants shall not deny the Agreement’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of race, religious creed , color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Consultant and Subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.

c. Consultant and its Subconsultants shall not unlawfully deny family, medical care leave, or pregnancy disability leave.

d. Consultant shall ensure, and shall require that its Subconsultant(s) ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.

e. Consultant shall comply and require that its Subconsultant(s) comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12990 (a -f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full.
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f. Subject to Section 29 of this Agreement, Consultant shall permit access by representatives of the Department of Fair Employment and Housing and SCAG upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) business hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or SCAG shall require to ascertain compliance with this clause.

g. Consultant and its Subconsultant(s) shall give written notice of its obligations under this clause to labor organizations with which they have collective bargaining or other labor agreements.

h. The Consultant and its Subconsultant(s) shall comply with Title VI of the Civil Rights Act of 1964, as amended, and with the regulations relative to Title VI, (nondiscrimination in federally-assisted programs of the United States Department of Transportati on (DOT), 49 C.F.R Part 21 and 23 C.F.R. Part 200; hereinafter referred to as “DOT regulations,”) and 49 C.F.R Part 26, which are herein incorporated by reference and made a part of this Agreement. Wherever the term “Contractor” appears therein, it shall mean Consultant.

i. Consultant shall permit and shall require its Subconsultant(s) to permit access to all records of employment, employment advertisements, application forms, and other pertinent data and records required by the State Fair Employment Practices and Housing Commission or any other agency of the State of California designated by the State to investigate compliance with this Section.

j. Solicitations for Subconsultant(s), Including Procurement of Materials and Equipment: In all solicitations either by competitive bidding or negotiations made by the Consultant for work to be performed under a subcontract, including procurement of material s or leases of equipment, each potential Subconsultant or supplier shall be notified by the Consultant of the Consultant’s obligations under this Agreement and the DOT regulations relative to nondiscrimination.

k. Sanctions for Noncompliance: Failure by the Consultant to carry out the requirements above is a material breach of this Agreement, which may result in sanctions as SCAG may determine to be appropriate, including, but not limited to:

(1) Withholding of payments to the Consultant under this Agreement until the Consultant complies, and/or
(2) Cancellation, termination or suspension of the Agreement, in whole or in part.

l. Incorporation of Provisions : Any subcontract entered into in relation to this Agreement shall contain all of the provisions of this section. The Consultant shall take such action with respect to any subcontract or procurement as SCAG may direct as a means of enforcing such provisions including sanctions for noncompliance.

29. Records Retention and Audits

The Consultant agree to the following:

a. Maintaining all source documents, books, and records directly connected with their performance of this Agreement for a minimum of three (3) years from the date that SCAG makes final payment to the Consultant or, if applicable based on the funding source, until audit resolution is achieved for each annual Comprehensive Budget Agreement (between SCAG and Caltrans), whichever is later, and all other related, pending matters are closed. Notwithstanding the foregoing, records relating to any and 24-024-C01
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all audits or litigation relevant to this Agreement shall be retained for five (5) years by Consultant or Subconsultant after the conclusion or resolution of the matter or the date an audit resolution is achieved, whichever is later, and shall make all supporting information available upon request for inspection and audit by representatives of SCAG, Caltrans the California State Auditor, or other authorized government agency. Copies shall be made and furnished to SCAG upon request at no cost to Consultant.

b. Establishing and maintaining an accounting system and reports conforming to Generally Accepted Accounting Principles (GAAP) to support invoices which segregate and accumulate incurred costs of the applicable Project Number(s) by line item and produce Quarterly Reports which clearly identify reimbursable costs and other expenditures related to such Project Number(s). Further, Consultant agrees to include a similar right of SCAG to audit records and interview staff in any subcontract related to performance of this Agreement. (Gov. Code §8546.7, Pub. Contract Code §10115 et seq., CCR Title 2, Section 1896). Consultant shall maintain documentation of its competitive bid process with respect to any procurement of sub-consultants pursuant to Section 4.b.

c. Upon request, at any time during normal business hours and as often as SCAG, and upon SCAG’s expense, State of California Department of Transportation (Caltrans), Bureau of State Audits, or other State and Federal agencies or any duly authorized representative may deem necessary, Consultant shall make available for examination all of its records with respect to all matters directly covered by this Agreement for purposes of audit, examination, or to make copies or transcripts of such records, including, but not limited to, contracts, invoices, payrolls (including time sheets or timecards), , compliance with this Agreement or requirements of state funding sources and other records relating to all matters directly covered by this Agreement. Such records and access to the facilities and premises of the Consultant shall be made available during the period of performance of this Agreement, and for three (3) years from the date that SCAG makes final payment to the Consultant or until audit resolution is achieved for each annual Comprehensive Budget Agreement (between SCAG and Caltrans), whichever is later, and all other related, pending matters are closed.

d. Reserved

e. If any litigation, claim, negotiation, audit, monitoring, inspection or other action has been started before the expiration of the required record retention period, all records must be retained by the Consultant its staff and Subconsultant(s), if any, until completion of the action and resolution of all issues which arise from it. Records relating to any and all audits or litigation relevant to this Agreement shall be retained for five (5) years after the conclusion or resolution of the matter.

f. Notwithstanding anything to the contrary herein, in no event shall SCAG be entitled to audit the composition of any agreed upon fixed rates or percentage multipliers nor shall it be entitled to audit any rates, charges, costs, hours worked or expenses related to work performed on a lump sum or fixed price basis.
g. The Consultant agrees and shall require that all agreements with Subconsultant(s) contain provisions requiring adherence to this section in its entirety.

30. Audit Review Procedures

a. Any dispute concerning a question of fact arising under an interim or post audit of this Agreement that is not disposed of by agreement, shall be reviewed by SCAG’S Chief Financial Officer.

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b. Not later than thirty (30) calendar days after issuance of the final audit report, Consultant may request a review by SCAG’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.

c. Neither the pendency of a dispute nor its consideration by SCAG will excuse Consultant from full and timely performance, in accordance with the terms of this Agreement.

d. Consultant and subconsultant agreements, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an Agreement audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review . If selected for audit or review, the Agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR Part 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure Caltrans or SCAG officials are allowed full access to the CPA’s work papers including making copies as necessary.

The Agreement, cost proposal, and ICR shall be adjusted by Consultant and approved by SCAG Contract Administrator to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by SCAG at its sole discretion. Refusal by Consultant to incorporate audit or review recommendations, or to ensure that the Caltrans or SCAG have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.

e. Consultant’s Price Sheet may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Price Sheet shall be adjusted by the Consultant and approved by the SCAG Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the aud it report. Refusal by the Consultant to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the Agreement terms and cause for termination of the Agreement.

1. During IOAI’s review of the ICR audit work papers created by the Consultant’s independent CPA, IOAI will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its reasonable efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, SCAG will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR {e.g. 48 CFR Part 31; GAGAS (G enerally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines}is received and approved by IOAI.

Accepted rates will be as follows:

a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate.

b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. 24-024-C01
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c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.

2. If IOAI is unable to issue a cognizant lette r, IOAI may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions.

3. If the Consultant fails to comply with the provisions of this paragraph, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this Agreement.

4. Consultant may submit to SCAG final invoice only when all of the following items have occurred:
(1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been completed to the satisfaction of SCAG; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO SCAG no later than sixty (60) calendar days after occurrence of the last of these items . The accepted ICR will apply to this Agreement and all other agreements executed between SCAG and the Consultant, either as a prime or subconsultant, with the same fiscal period ICR.

31. Reserved

32. Labor Code Requirements.

32.1 Prevailing Wages.

a. Consultant shall comply with the State of California’s General Prevailing Wage Rate requirements in accordance with California Labor Code, Section 1770, and all Federal, State, and local laws and ordinances applicable to the Services.

b. Any subcontract entered into as a result of this Agreement, if for more than $25,000 for public works construction or more than $15,000 for the alteration, demolition, repair, or maintenance of public works, shall contain all of the provisions of this Section.

c. When prevailing wages apply to the Services described in the Scope of Services, transportation and subsistence costs shall be reimbursed at the minimum rates set by the Department of Industrial Relations (DIR) as outlined in the applicable Prevailing Wage Determination. See http://www.dir.ca.gov.

d. Copies of the prevailing rate of per diem wages in effect at commencement of this Agreement are on file at the SCAG’s offices. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant’s principal place of business and at the project site.

Consultant shall defend, indemnify and hold the SCAG, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties 24-024-C01
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or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

32.2 DIR Registration. If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations .

Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relat ions. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.

32.3 Eight-Hour Law. Pursuant to the provisions of the California Labor Code, eight hours of labor shall constitute a legal day’s work, and the time of service of any worker employed on the work shall be limited and restricted to eight hours during any one calendar day, and forty hours in any one calendar week, except when payment for overtime is made at not less than one and one-half the basic rate for all hours worked in excess of eight hours per day (“Eight -Hour Law”), unless Consultant or the Services are not subject to the Eight -Hour Law. Consultant shall forfeit to SCAG as a penalty, $50.00 for each worker employed in the execution of this Agreement by him, or by any sub-consultant under him, for each calendar day during which such workman is require d or permitted to work more than eight hours in any calendar day and forty hours in any one calendar week without such compensation for overtime violation of the provisions of the California Labor Code, unless Consultant or the Services are not subject to the Eight-Hour Law.

32.4 Employment of Apprentices. This Agreement shall not prevent the employment of properly indentured apprentices in accordance with the California Labor Code, and no employer or labor union shall refuse to accept otherwise qualified employees as indentured apprentices on the work performed hereunder solely on the ground of race, creed, national origin, ancestry, color or sex. Every qualified apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade in which he or she is employed and shall be employed only in the craft or trade to which he or she is registered.

If California Labor Code Section 1777.5 applies to the Services, Consultant and any subcontractor hereunder who employs workers in any apprenticeable craft or trade shall apply to the joint apprenticeship council administering applicable standards for a ce rtificate approving Consultant or any sub-consultant for the employment and training of apprentices. Upon issuance of this certificate, Consultant and any sub -consultant shall employ the number of apprentices provided for therein, as well as contribute to the fund to administer the apprenticeship program in each craft or trade in the area of the work hereunder.

The parties expressly understand that the responsibility for compliance with provisions of this Section and with Sections 1777.5, 1777.6 and 1777.7 of the California Labor Code in regard to all apprenticeable occupations lies with Consultant.

33. National Labor Relations Board.

In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two -year period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board.
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34. Federal and State Lobbying Activities Certification

The provisions of this shall only apply if Federal funds are to be provided under this Agreement.

a. By signing this Agreement, the Consultant certifies, to the best of its knowledge and belief, that no State or Federal funds have been paid or will be paid, by or on behalf of SCAG, to any person for influencing or attempting to influence an officer or emp loyee of any State or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding of any State or Federal contract, the making of any State or Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, or the extension, continuation, renewal, Amendment, or modification of any State or Federal contract, grant, loan, or cooperative agreement.

b. If any funds other than State or Federal funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the Consultant shall complete and submit Federal Standard Form -LLL, “Disclosure Form to Report Lobbying,” in accordance with those form instructions.

c. This certification is a material representation of fact, upon which reliance was placed when this Agreement was entered into. If any federal funds are provided under this Agreement or if state funding sources otherwise require, the Consultant agrees that s ubmission of this certification is a prerequisite for making or entering into this Agreement pursuant to 31 U.S.C. 1352.

d. The Consultant also agrees by signing this Agreement that it will require that the language of this certification be included in all subcontracts funded wholly or in part by any funds provided herein and which exceed $100,000 and that all such Subconsultants shall certify and disclose accordingly.

35. Certifications and Assurances, Other Federal Requirements

The provisions of this Section 31 shall only apply if Federal funds are to be provided under this Agreement, or if state funding sources require such assurances to be given.

a. Consultant shall adhere to the requirements contained in SCAG’s annual Certification and Assurances (FHWA and FTA “Metropolitan Transportation Planning Process Certification”) submitted as part of SCAG’s Comprehensive Budget, pursuant to 23 CFR 450.334 and 23 U.S.C. 134. This Certification shall be published annually in SCAG’s Comprehensive Budget. Such requirements shall apply to Consultant to the same extent as SCAG and may include, but are not limited to:

(1) Title VI of the Civil Rights Act of 1964 and Title VI Assurance executed by California under 23 U.S.C. 324 and 29 U.S.C. 794;
(2) Pub. Law 105-178, 112 Stat. 107 and any successor thereto, regarding the involvement of disadvantaged business enterprises in FHWA and FTA funded projects (Sec. 105(f), Pub. L. 970424, 96 Stat. 2100, 49 CFR part 26); and
(3) The Americans with Disabilities Act of 1990 (Pub. L. 101-336, 104 Stat. 327, as amended) 24-024-C01
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and the United States Department of Transportation (US DOT) implementing regulations (49 CFR 27, 37, and 38).

b. Consultant shall additionally comply with the requirements contained in the annual FTA “Certifications and Assurances for FTA Assistance,” including “Certifications and Assurances Required of Each Applicant” and the “Lobbying Certification” in compliance with 49 U.S.C.

Chapter 53; published annually in SCAG’s Comprehensive Budget. Such assurances shall apply to Consultant to the same extent as SCAG, and include but are not limited to the following areas:

(1) Standard Assurances
(2) Debarment, Suspension, and Other Responsibility Matters for Primary Covered Transactions (3) Drug Free Work Place Agreement
(4) Intergovernmental Review Assurance
(5) Nondiscrimination Assurance
(6) DBE Assurance
(7) Nondiscrimination on the Basis of Disability
(8) Certification and Assurances required by the U.S. Office of Management and Budget

c. The Consultant shall require its Subconsultant(s) to comply with these Certifications, and agrees to furnish documentation at no cost to SCAG to support this requirement that all of its agreements with Subconsultant(s) contain provisions requiring adherence to this section in its entirety.

d. Clean Air; Clean Water Act. Consultant agrees to comply with all applicable standards, orders or regulations issued pursuant to: (1) the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq., and (2) the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. Consultant agrees to report each violation of either of the foregoing to SCAG and understands and agrees that SCAG will, in turn, report each violation as required to assure notification to the Federal awarding agency and the appropriate Environmental P rotection Agency Regional Office. Consultant agrees to include these requirements in each subcontract exceeding $150,000.

36. Contract Award

In accordance with “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards,” 2 CFR Part 200, et seq., and successors thereto and applicable state law and procedures, all Subconsultant contracts containing funds provided under this Agreement are required to be competitively procured and awarded consistent with Local Program Procedures 00 -05 (Pre - award Audit Requirements and Consultant Procurement) or successors thereto.

37. Cost Principles

a. Consultant agrees to comply with the following if Federal funds are to be provided under this Agreement, or if expressly required by the Federal or State funding source:

(1) the Contract Cost Principles and Procedures, 48 Code of Federal Regulations, Federal Acquisition Regulations Syst em, Chapter 1, Part 31, et seq., 2 CFR Part 225 (Office of Management and Budget Circular A-87), “Cost Principles for State, Local, and Indian Tribal Governments,” and successors thereto, shall be used to determine the allowability of individual project cost items, and

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(2) the Federal administrative procedures in accordance with “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards,” 2 CFR Part 200, et seq., and successors thereto.

b. Any costs for which Consultant receives payment or credit that is determined by a subsequent audit or other review by either SCAG, Caltrans or other State or Federal authorities to be unallowable under, but not limited to, 2 CFR Part 225 (OMB Circular A-87); 48 CFR, Chapter 1, Part 31; or 2 CFR Part 200, et seq., and successors thereto, are to be repaid by Consultant within thirty (30) days of Consultant receiving notice of audit findings. Should Consultant fail to reimburse moneys due SCAG within thirty (30) days of demand, or within such other period as may be agreed between Parties hereto, SCAG is authorized to withhold future payments due Consultant.

c. Consultant agrees to furnish documentation to SCAG to support this requirement that all of its agreements with Subconsultants contain provisions requiring adherence to this section in its entirety.

38. Stop Work

a. SCAG may, at any time, by written Stop Work Order to the Consultant, require the Consultant to stop all, or any part, of the work called for by this Agreement for a period up to ninety (90) days after the Stop Work Order is delivered to the Consultant, and for any further period to which SCAG authorizes. The Stop Work Order shall be specifically identified as such and shall indicate it is issued under this clause. Upon receipt of the Stop Work Order, the Consultant shall immediately comply with its terms and take reasonable steps to minimize the incurrence of costs allocable to the work covered by the Stop Work Order during the period of work stoppage. Consultant shall not be liable for delays to the project not caused by Consultant. Within ninety (90) days after a Stop Work Order is delivered to the Consultant, or within any extension of that period by SCAG, SCAG shall either:

(1) Cancel the Stop Work Order; or

(2) Terminate the work covered by the Stop Work Order as provided for in the termination for convenience clause of this Agreement.

b. If a Stop Work Order is issued under this section, SCAG shall make an equitable adjustment in the delivery schedule, the contract price, or both, and the Agreement shall be modified, in writing, accordingly.

39. Flow-Down Provisions

Any subcontract, of any tier entered into by the prime consultant as a result of this Agreement shall be written, executed subsequent to the prime consultant executing its contract with SCAG within a reasonable time, and shall contain the following provisions of this Agreement:

Section 6 (Funding Requirements);
Section 10 (Invoicing for Payment);
Section 11 (Invoicing Format and Content);
Section 13 (Satisfactory Performance; Preliminary Review of Work) 24-024-C01
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Section 15 (Quarterly Progress Reports);
Section 16 (Inspection of Work; Safety);
Section 17 (Written and Electronic Version of Work Products and Related Work Materials); Section 18 (Ownership, Confidentiality, and Use of Work Products); Section 19 (Termination);
Section 20 (Compliance with Laws, Rules, and Regulations); Section 21 (Independent Contractor);
Section 22 (Conflict of Interest);
Section 23 (Contingency Fees or other Unlawful Consideration); Section 24 (Release of Information);
Section 25 (Disputes);
Section 26 (Indemnity);
Section 27 (Claims by Construction Contractor);
Section 28 (Non-Discrimination/Equal Employment Opportunity); Section 29 (Records Retention and Audits);
Section 30 (Audit Review Procedures, if applicable);
Section 32 (Labor Code Requirements);
Section 33 (National Labor Relations Board);
Section 34 (Federal and State Lobbying Activities Certification); Section 35 (Certifications and Assurances);
Section 36 (Contract Award);
Section 37 (Cost Principles); and
Section 42 (Survival)

Upon SCAG’s request, the consultant shall provide SCAG a copy of the portion of the Subconsultant agreement which contains the above provisions to verify compliance.

40. Notice

Any notice or notices required or permitted to be given pursuant to this Agreement may be personally served on the other party by the party giving such notice, or may be served by certified mail, return receipt requested, to the following addresses:

Cindy Giraldo
Chief Financial Officer
Southern California Association of Governments
900 Wilshire Blvd. Suite 1700
Los Angeles, California 90017-3435

Phone: (213) 630-1413
Email: [email protected]

Matthew Olson
Chief Innovation Officer
Burns & McDonnell Engineering Company, Inc.
617 W 7th St., Suite 700
Los Angeles, California 90017
Phone: (816) 349-6608
Email: [email protected]

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41. Severability

If any provision of this Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, and enforceable, and the legality, validity, and enforceability of the remaining prov isions shall not be affected thereby.

42. Survival

The following sections survive expiration or termination of this Agreement:

Section 13 (Satisfactory Performance; Preliminary Review of Work) Section 17 (Written and Electronic Versions of Work Products and Related Work Materials) Section 18 (Ownership, Confidentiality, and Use of Work Products) Section 24 (Release of Information)
Section 25 (Disputes)
Section 26 (Indemnity)
Section 29 (Records Retention and Audits)
Section 44 (Jurisdiction and Venue)
Section 46 (Standard of Care)
Section 53 (No Third Party Beneficiaries)
Section 54 (Use of Name)

43. Order of Precedence

In the event of any conflict between the terms of this Agreement and the terms of any Exhibit, the terms of the Agreement shall control. In the event of any conflict between the following documents, the order of precedence shall be as follows:

• Amendment(s) to Contract No. 24-024-C01
• Contract No. 24-024-C01
• Exhibits

44. Jurisdiction and Venue

This Agreement shall be deemed an Agreement under the laws of the State of California, and for all purposes shall be interpreted in accordance with such laws. Subject to the arbitration requirements in Section 25 (Disputes) requiring that all disputes arising under this Agreement be addressed in arbitration, both Parties hereby agree and consent to the exclusive jurisdiction of the courts of the State of California and that the venue of any action brought thereunder shall be Los Angeles County, California.

45. Waiver

No delay or failure by either Party to exercise or enforce at any time any right or provision of this Agreement shall be considered a waiver thereof of such Party’s right thereafter to exercise or enforce each and every right and provision of this Agreemen t. A waiver to be valid shall be in writing but need not be supported by consideration. No single waiver shall constitute a continuing or subsequent waiver.
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46. Standard of Care

Consultant represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Project. Consultant shall perform the Services under this Agreement in accordance with generally accepted industry standards, practices, and principles in the State of California applicable to such Services ("Standard of Care"). Consultant represents that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Without waiver of SCAG’s other rights or remedies, upon written notification to Consultant within one year from the discovery of defects in the Standard of Care , SCAG may require Consultant to re-perform any of said Services which were not performed in accordance with the Standard of Care at no cost to SCAG. This obligation to re-perform the Services is Consultant’s sole obligation and SCAG’s sole and exclusive remedy with respect to defects in the quality of the Services. Other than expressly stated, this section is not intended to limit SCAG’s expressly stated remedies.

47. Insurance

Consultant shall procure and maintain throughout the Term of this Agreement the required insurance, as set for below, against claims for injuries to persons, or damages to property, which may be caused by the performance of the work hereunder by Consultant or employees. Consultant shall use commercially reasonable efforts to contractually require subconsultants to maintain the insurance required herein.

a. Scope of Insurance – Coverage shall be:

(1) Commercial General Liability coverage in an Occurrence form.

(2) Insurance Services Office form number CA0001 covering Automobile Liability, code 1 (any auto) or its equivalent.

(3) Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

(4) Professional Liability (Errors and Omissions) insurance appropriate to the Consultant’s profession.

b. Required Limits of Insurance – Consultant shall maintain limits equal to:

(1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Project/location or the general aggregate limit shall be twice the required occurrence limit. The products completed operations aggregate shall be $2,000,000.

(2) Automobile Liability: Including contractual liability insuring owned, non-owned, hired and all vehicles by Consultant with a combined single limit of $1,000,000 applicable to bodily injury, or death, and loss of or damage to property in any one accident.

(3) Workers’ Compensation Liability: Including Occupational Diseases in accordance with California Law and Employers’ Liability Insurance with a limit of $1,000,000 each accident / 24-024-C01
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each employee by disease / policy limit by disease.

(4) Professional Liability Insurance: With limits of $1,000,000 per claim and aggregate. In addition, it shall be required that the professional liability insurance policy remain in effect for six (6) months after the Completion Date of this Agreement.

c. Other Insurance Provisions – The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

(1) SCAG, the Cities, and their subsidiaries, officials and employees are to be covered as additional insureds, as respects to liability caused by the activities performed by or on behalf of Consultant, products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned leased, hired or borrowed by Consultant. . The additional insured coverage afforded by the general liability policy shall be provided on the ISO endorsements CG 2010 0704 and CG 2037 0704 or their equivalent.

(2) Not Used.

(3) Not Used.

(4) Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.

(5) Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of $1,000,000 per accident / each employee by disease / policy limit by disease ) including a Waiver of Subrogation in favor of SCAG, its officers, and employees.

d. Not Used.

e. Acceptability of Insurers – Insurance is to be placed with California admitted, authorized, or approved insurers with a current A.M. Best’s rating of no less than A-, unless otherwise approved by SCAG.

f. Verification of Coverage – Consultant shall furnish SCAG with relevant endorsements and certificates of insurance evidencing coverage required by this clause. The certificate is to be signed by a person authorized by the insurers to evidence coverage on its behalf. All documents are to be received and reasonably approved by SCAG before work commences.

g. SCAG and Consultant release each other and waive all rights of recovery and subrogation against each other and their officers, directors, agents, or employees for damage covered by property insurance (including deductibles and self insured retentions) duri ng and after the completion of Consultant’s Services.

48. Force Majeure

Neither SCAG nor Consultant shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of services resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, pandemics or any other similar cause beyond the reasonable control or cause of SCAG or Consultant; provided, however, 24-024-C01
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that the party seeking to avail itself of the provisions of this Section 48 shall notify the other party in writing not later than ten (10) business days from the first instance of the event that the party claims excuses or delays its performance and, if timely notice is not provided, then such party’s performance or failure shall not be deemed excused or delayed. Any delay or excuse of performance shall only continue on a day-for-day basis for the length of the noticed event.

49. Entire Agreement

This writing contains the entire agreement of the Parties relating to the subject matter hereof, and the Parties have made no agreements, representations or warranties relating to the subject matter hereof which are not set forth herein. Except as provided herein, this Agreement may not be modified or altered without formal written Amendment thereto.

50. Execution of Agreement or Amendment

This Agreement, or any Amendment related thereto, may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. The signature page of this Agreement or any Amendment may be executed by way of a manual or authorized digital signature. Delivery of an executed counterpart of a signature page to this Agreement or an Amendment by electronic transmission scanned pages shall be deemed effective as a delivery of a manually or digitally executed counterpart to this Agreement or any Amendment.

51. Effective Date

The Effective Date of this Agreement shall mean the date (meaning the last date indicated below) that the Parties have fully executed this Agreement.

52. Notice of Performance Evaluation

In accordance with P ublic Contract Code section 10367, each consultant under contracts value at $5,000 or more shall be advised in writing on a standard contract form that his or her performance, or the firm's performance under the contract will be evaluated.

53. No Third Party Beneficiaries. Except as may be expressly specified herein, there are no intended third party beneficiaries of any right or obligation assumed by the Parties.

54. Use of Name

Neither party shall use the name, trade name, or trademark or other designation of the other party or its affiliates in connection with any products, promotions, or advertising without the prior written permission of the other party.

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IN WITNESS WHEREOF, the Southern California Association of Governments and Burns & McDonnell Engineering Company, Inc. have caused this Agreement to be executed by their duly authorized representatives.

Southern California Association of Governments Burns & McDonnell Engineering Company, Inc. (“SCAG”) (“Consultant”)

Cindy Giraldo Matthew Olson
Chief Financial Officer Chief Innovation Officer

Date Date

Approved as to Legal Form:

Richard Lam
Senior Deputy Legal Counsel

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4/19/2024
277

EXHIBIT A
Scope of Work
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Exhibit A

Scope of Work
Last Mile Project Assessment for the SCAG Region

Background and Intent
On June 29, 2023, the California Public Utilities Commission (CPUC) approved SCAG’s application for the Local Agency Technical Assistance (LATA) grant funding to conduct a Last Mile Project Assessment for the SCAG Region (Project) (See Appendix A- SCAG LATA Award). The LATA grant will help SCAG assist local jurisdictions wh o lack the technical, staff and financial capacity to identify and analyze opportunity areas and develop conceptual design for last mile services. Unfortunately, it is these local jurisdictions that are in dire need of better connectivity, as they have a hi gh-concentration rate of low - income households (often communities of color), many of whom face affordability and accessibility issues.

To fill in this gap, SCAG is requesting proposals to determine and design three (3) projects located within the SCAG region. This project will result in conceptual designs and technology deployment strategy to lay the foundation for three (3) projects that meet or exceed 100/100 or 100/20 Mbps for unserved and/or underserved communities, ideally within proximity to California Department of Technology (CDT’s) proposed 18 middle-mile projects.

SCAG is aware of many local jurisdictions who have been awarded the LATA grant, and planning to develop, or have already developed implementation/ plans. As such, this project will not supersede a local jurisdiction’s effort, nor will the work product result in an unnecessary/redundant network. Work efforts will only engage local jurisdictions who need last mile services but were not able to apply and/or have the capacity to procure a consultant and take on project management roles. Further, this project is not intended to be a strictly planning exercise. While planning is part of this project scope, the product will integrate conceptual, high-level design with planning analysis to develop projects and support last mile expansion for each priority area.

The consultant shall complete the following tasks:

Task 1: Project Administration and Management
Task 1.1: Project Management Plan
A Project Management Plan will be developed to guide aspects of the work tasks, schedule, and budget within the grant agreement. The Project Management Plan will identify a system for project control, including necessary procedures for conducting the work, managing resources, communications, budget, schedule, monitoring and reporting project status and progress, document control, and quality assurance and control. Further, the Project Management Plan will be designed to guide the flow of the overall project effort. Special attention shall be given to the project schedule to address any critical administrative dates (such as Regional Council dates) and internal review needs.

Task 1.2: Project Schedule
A detailed Project Schedule will be developed for CPUC’s review and as defined by the project scope. The Schedule shall identify work tasks, start dates, activity durations, project development team meeting dates, external partner meeting key dates, project submittal dates, key project milestones, schedules for internal review on deliverables, and relationships among work tasks, including critical path items. 24-024-C01
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Exhibit A

Task 1.3: Project Management Meetings
The Consultant will participate in Project Management meetings. Meetings will include SCAG’s Project Manager, and other SCAG staff, consultant project manager, consultant team members as necessary to review project status/progress, as well as to resolve ke y issues. Each meeting will have an agenda, a summary of minutes and an action item matrix. Consultant shall participate in approximately two (2) meetings per month on a bi -weekly basis, for an estimated total of 24 meetings up to (1) hour each . The Consultant will be responsible for developing agendas, meeting notes, and action item matrices, as required.

Task 1.4: Special Meetings with External Stakeholders or Working Group Meetings At the direction of the SCAG Project Manager, the Consultant will participate in meetings with external stakeholders or project teams that are working on similar efforts to support intra -agency coordination, provide status updates and input as needed, and avoid duplicative work among regional projects. Consultant will be expected to participate in approximately two (2) meetings per month, for a total of 24 meetings up to (1) hour each. This may include but are not limited to:
• Meetings with City Staff
• City Council Meetings
• Meetings with State Agencies and County Transportation Commissions (CTCs) • SoCal Transformation Working Group
• SCAG’s Emerging Technology Committee (ETC)
• SCAG’s Transportation Committee (TC)
• SCAG’s Regional Council (RC)
Task 1.5: Grant Reporting Assistance
The Consultant shall assist SCAG with the LATA grant administration and periodic reporting per the requirements of the CPUC, which are available at https://www.cpuc.ca.gov/industries-and-topics/internet- and-phone/broadband-implementation-for-california/local-agency-technical-assistance.

A sample of the reporting requirements is available at: https://www.cpuc.ca.gov/-/media/cpuc- website/divisions/communications-division/documents/broadband-implementation-for-california/lata- reporting-requirements-dec-22.pdf.

Consultant shall provide SCAG with required documentation with sufficient time for review prior to CPUC reporting deadlines.

Burns & McDonnell Engineering Company shall work with SCAG, and appropriate stakeholders to provide up to (16) monthly, (5) quarterly and (1) completion reports during the duration of the project as required, by Decision (D.) 22-02-026.

Task 1 Deliverables:

Task Deliverables

1.1 Project Management Plan

1.2 Project Schedule

1.3 Project Management Meetings, Agenda, Minutes, and Action Item Matrices

1.4 Meeting Minutes

1.5 Grant Reporting Materials and Attachments

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Exhibit A

Task 2: Broadband Infrastructure Existing Conditions Analysis1 Task 2.1: Regional Infrastructure Assessment of the SCAG Region The Consultant shall perform research and evaluation of broadband usage and an inventory analysis of technologies that are currently delivering internet service in the six -county SCAG region. This includes, and is not limited to, fiber optic, wireless, DSL, ca ble, and satellite services 2. The assessment will characterize existing infrastructure conditions which may consider:
• Type of technology (e.g., fiber, wireless, DSL, etc.) • Location (using longitudinal coordinates)
• Length and transmission radius (i.e., square miles)
o Capacity & availability of asset
o Access points to the public
o Owner
o Exchange points
o Number of internet providers
o Current pricing for the network based on advertised rates. o Subsidy subscriptions for the Federal Communications Commission Affordable Connectivity Program
o Overall digital adoption in the region
Burns & McDonnell Engineering Company shall request, use existing (SCAG or local jurisdictions), or work with SCAG and/or local jurisdictions to find data sources, such as the following, as applicable and feasible, to inform assessments and findings:
• Aerial and Underground Electrical Plant Maps,
• Right of Way (ROW) / Easement Maps,
• Microwave/Wireless/LTE Coverage and Asset Maps,
• Fiber Optic Plant Maps,
• Fiber Optic Splice Schematics,
• Communication Network Access Point Schematics,
• Existing Customers Served by municipalities in SCAG’s region, e.g.:
• Public Entities,
• Municipalities & Rural Electric Co-Ops,
• Host Communities,
• Business & Industry,
• Healthcare, Educational & Cultural Institutions, and
• Electric Providers (Generators).

1 Please note that numerous local jurisdictions have conveyed their interest to collaborate with SCAG. SCAG (assisted by the Consultant) will contemplate the possibility of choosing three (3) local jurisdictions through the assessment of meetings, interview s, and a comprehensive analysis of their requirements, including the manual selection of three opportunity zones. SCAG asks respondents to this proposal to provide a Technical Approach tailored to this particular scenario.
2 Infrastructure assessment subject to available data. Proposal responses should indicate estimated costs associated with assumed data collection, sources, and availability. 24-024-C01
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Exhibit A

Burns & McDonnell Engineering Company shall utilize public data sources, such as the following, to inform assessments:
• U.S. Census Bureau Data
• National Telecommunications and Information Administration (NTIA) Broadband Need Indicators
• California Interactive Broadband Map (CIBM) for California Advanced Services Fund (CASF) • Federal Communications Commission (FCC) Data
• U.S. Energy Information Administration (EIA) Data
• Rural Digital Opportunity Fund (RDOF) Data

Burns & McDonnell Engineering Company shall request updated and relevant data regarding existing infrastructure (transport, fiber, etc.). We assume this information shall be provided by SCAG. We prefer this data be provided in GIS format, where appropriate. While SCAG may not possess the data directly, we operate under the assumption that SCAG has knowledge of the data owner (Municipalities and Rural Electric Co-Ops in the SCAG’s region) and can facilitate an introduction to the relevant stakeholders. The Burns & McDonnell Engineering Company team will gather any additional data required that is not available after those engagements.

Task 2.2: Infrastructure Assessment ArcGIS File Geodatabase Based on work efforts referenced under Tasks 2.1 an ArcGIS File Geodatabase will be constructed for any GIS datasets gathered or generated. This information will be collected by utilizing other databases, third - party research, information obtained from providers, and research from engineering or policy partners.

Consultant shall develop the file geodatabase following SCAG’s Spatial Data/Metadata Requirements (See Appendix B) including documentation and review/agreement by SCAG during the project . Additionally, GIS deliverables produced for SCAG as a part of this project will be hosted by SCAG and published using services on ArcGIS server. Technical design should indicate the type of services to be used and relevant access/permissions required.

Burns & McDonnell Engineering Company shall create a GIS dataset which includes the following:
• Technology Classifications (fiber, wireless, xDSL, terrestrial) • Location of services
• Length and transmission radius
• Capacity and availability of asset, where data is publicly available • Access points to the public, where data is publicly available • Owner
• Exchange points
• Number of internet providers
• Current Pricing based on advertised rates
• Subsidy subscriptions for the Federal Communications Commission Affordable Connectivity Program
• Digital Adoption in the region

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Exhibit A

GIS Data shall be collected and presented at the census tract level, as defined by the United States Census Bureau. Affordable Connectivity Program GIS data shall be collected and presented by zip code as defined by the Federal Information Processing Stand ards (FPIS). GIS data shall only be provided for census tracts/zip codes within SCAG’s areas. Burns & McDonnell Engineering Company shall partner with SCAG on aligning the spatial/metadata requirements.

Task 2 Deliverables:

Task Deliverables

2.1 Regional Infrastructure Assessment

2.2 Regional Infrastructure Assessment ArcGIS File Geodatabase

Task 3: Needs and Market Assessment, Priority Area Identification, and Route Determination Task 3.1: Needs Assessment Methodology and Determination of Priority Areas Using the findings from Task 2 and publicly available data, the Consultant will develop a needs assessment to prioritize three (3) areas for further analysis as a part of the project’s defined study areas for Tasks 3 -5.

The assessment will focus on several variables to identify the hardest -to-reach unserved and underserved households, including, but not limited to:
• Disadvantaged Communities
• Continuum of Care (CoC) groups
• Low rates of internet adoption by residents
• Low rates of internet accessibility
• Existing infrastructure and middle mile segments
Further, special attention will be given to select priority areas in a range of developed contexts, including rural, suburban, urban, and Tribal communities. Upon determination, based on findings from the consultant and SCAG’s assessment, SCAG will engage with three (3) local jurisdictions to develop an implementation plan for last mile services.

Task 3.2: Public Outreach
The Consultant will conduct public outreach in the identified priority areas to research and better understand each community’s needs . Specific attention will be given to address connectivity needs. Outreach will involve but are not limited to:
• Conducting interviews, surveys, and/or focus group sessions with community agencies, educational institutions, healthcare clinics, key stakeholder groups, and other relevant groups in the Priority Areas to:
o Understand barriers that prevent study area communities from accessing reliable internet service. These can include barriers not limited to:
▪ Internet adoption
▪ Service affordability
▪ Access to infrastructure and devices
▪ Workforce, educational, social services need
Survey outcomes will inform, at minimum:
• The level of service needed in the area and the workforce required to deliver such service. 24-024-C01
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Exhibit A

Connectivity preferences (e.g., where are they most likely to connect, how often do they rely on community institutions for these services, etc.)

Consultant shall prepare and lead the following:
• Two (2) focus group or outreach sessions per Priority Area • Three (3) community surveys per Priority Area
• Five (5) interviews (virtual) per Priority Area
To ensure consistency of public information originating from SCAG, all public -facing informational materials must be reviewed and approved by SCAG’s Manager of Media and Public Affairs or a specified designee before release, distribution or presentation. This process for facilitating this review and approval will be discussed during the project kick-off meeting and as part of Task 3.1.

Task 3.3: Gap Analysis and Public Asset Inventory for Priority Areas Upon completion of the Needs Assessment and outreach exercises, the Consultant will assist SCAG and inventory the public assets that may support broadband deployment in the priority areas. Public areas may be along public -right-of ways for the installation of Conduit, Fiber, Antennas, Poles, Towers, Active or abandoned facilities, and other applicable infrastructure. The consultant will evaluate general, economic development, capital plan and/or transportation plans that impact the priority areas and will a ssist in the identification of strategic and cost -effective methods of deploying broadband expansion in an organized and/or phased approach.

Task 3.4: Market Assessment Report
The consultant will develop a market assessment which will include a granular set of data with respect to the telecommunications environment detailing the location of facilities, types of services, pricing, availability, and limitations. Assessment of potential construction and operational relationships with public, private, and membership owned companies in the service area and with publicly and privately funded networks as suitable for interconnection. The assessment will determine what economic and commu nity impact broadband issues are having within each selected area and will include an evaluation of key issues limiting broadband expansion and a phased, prioritized approach to broadband expansion. • Burns & McDonnell Engineering Company shall collaborate with SCAG to define the agreed services, such as wholesale, retail, community access.
• Burns & McDonnell Engineering Company shall facilitate up to (2) 1-hour discussions of business and technical requirements and validate the understanding of existing infrastructure and the technology roadmap envisioned.
• Host up to (2) 1-hour review meetings to validate inputs and data collected. • Confirm any gaps in information that may prevent benefits. • Host up to (2) 1-hour meetings with SCAG to review regulatory environment and risk posture (what they are willing to provide) to align the service hierarchy. • Define the estimation model (benchmark, cost plus, cost recovery) • Identify gaps in the implementation plan that may require further investigation.

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Exhibit A

• Summary of Findings Slide Deck Deliverable (PowerPoint) • Burns & McDonnell Engineering Company shall provide a report in executive slide deck format (PowerPoint) outlining the key findings and assumptions from the analysis. The primary sections covered in the report shall be:
• Executive Summary (1-2 slides),
• Market Segment Overview (4-6 slides)
o Summary of Markets
o Summary of Models
o Summary of Operating Models
o Summary of Revenue Models
• Key Market Opportunity (8-10 slides),
o One (1) slide per agreed market opportunity with up to six (6) market opportunities considered.
• Other Notable Findings (2-4 slides),
• Conclusions & Next Steps (1 slide), and
• Appendices & Assumptions (as required).

Data collected from Tasks 2-3 will be translated into findings regarding infrastructure gaps, services issues, average cost of plans, cost of materials, labor associated with construction and cost of operation, and other barriers to broadband access (such as permitting).

Task 3.5: Route Determination Report
Based on the findings under Tasks 3.1 to 3.4, routes will be determined, evaluating the feasibility of the route and documentation of any roadblocks and hurdles which may delay the construction of these routes.

Evaluations may consist of the following, but not limited to:
• Fiber to the Premises (FTTP) Networks
o Identify hut and/or Fiber Distribution Hub (FDH) locations per priority area o Identify the extent to which new underground (conduit) or aerial (poles) infrastructure will need to be installed
• Fixed Wireless Networks
o Location of wireless equipment sites needed per priority area o Identify extent to which new underground (conduit) or aerial (poles) infrastructure will need to be installed, when fiber optic backhaul is required rather than fixed wireless backhaul
• Identify any permitting or construction challenges while conducting surveys to support development of design alternatives
• Identify Right of Way, Access Control and Temporary Construction Easement requirements • Identify any Multiple Dwelling Units (MDU), Multiple Tenant Units (MTU), and commercial properties
• Consider design implications of approved buildable land parcels. Most current data will be provided in consultation with local jurisdictions
24-024-C01
36 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 285
Exhibit A

• Verify fiber egress points to support single and redundant connections to existing and proposed CDT middle-mile network
• This report shall be up to (10) pages.

Task 3 Deliverables:

Task Deliverables

3.1 Needs Assessment Methodology Report, Partnership agreement (Local Jurisdiction/SCAG)

3.2 Public Outreach (including agenda, presentation materials, etc.)

3.3 Gap Analysis and Public Asset Inventory Report

3.4 Market Assessment Report

3.5 Route Determination Report

Task 4: Last Mile Design for Local Jurisdictions
Based on the findings from Task 1-3, the Consultant will assist SCAG and selected jurisdictions in setting the foundation for last mile services in the three (3) priority areas. Work efforts will include specifics regarding the financing and implementation strategies, short-term and long-term actions needed to prepare the area for broadband implementation and include conceptual design and specifications to create a project ready for the next stages of project development.

Task 4.1: Internet Service Provider (ISP) Outreach
Based on the findings listed under Task 2-3, and at the request of the local jurisdiction, SCAG may ask the consultant to conduct interviews and focus group sessions with Internet Service Providers that operate in the Priority Areas. Outreach exercises will identify potential areas for partnership between the respective local jurisdictions and incumbent providers. Potential topics to discuss may include but not be limited to:
• Retail services & pricing to a range of customer segments, which may include residential and/or commercial
• Retail services & pricing to government, education, healthcare and anchor organizations • Retail services that leverage other utilities for outsourced content and services • Fiber leasing arrangements
• Revenue sharing agreements
• Open Access Model compliance
• Phased roll-out of lit services to customers
• Milestones & performance schedules for delivery of services. • Potential partnership arrangements with third-party asset owners (County, other private telecoms) • Others to be determined throughout the course of the project.

Burns & McDonnell Engineering Company shall analyze Priority Areas and conduct (3) 2-hour interviews and focus group sessions with corresponding Internet Service Providers. Throughout this process, Burns & McDonnell Engineering Company shall identify prospective areas for partnership between the respective local jurisdictions and incumbent providers. SCAG and Burns & McDonnell Engineering Company shall agree upon the topics for the ISP outreach in up to (1) 1 -hour discussion. SCAG may inquire Burns & McDonnell Engineering Company to lead interviews and focus group sessions with Internet Service Providers that operate in Priority Areas depending upon findings listed under Task 2 -3 and at the request of the local jurisdiction.
24-024-C01
37 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 286
Exhibit A

Task 4.2: 10-Year Technology Last Mile Roadmap
The Consultant shall develop a (10) year last mile roadmap of up to (20) pages. The roadmap will identify a list of recommended solutions for each opportunity areas. The roadmap will identify the differences between active Ethernet, passive optical, and fixed wireless networks from selection, design, impacts, and cost comparisons. Inventory of vendor products may include key features of each platform consisting, but not limited to, the following:
• Hardware capacities
• Software specifications
• Environmental and management capabilities
• Equipment management software functionality for service configuration, surveillance, performance, and administration.

The roadmap will include the limitations of each technology (e.g., insufficient capacity to or inability to support real-time traffic such as voice over IP or Broadcast video), elements that would affect consumer and/or carrier adoption, and the extent to which these limitations can be mitigated. The roadmap will convey the market availability of next generation technologies (e.g., technologies that are in production by multiple manufacturers), and any market constraints that would affect their adoption. If applicable the roadmap will include forecasts (if any) of when the technology will reach ‘end of life’ within the next 10 years.

SCAG or partnering local jurisdictions key stakeholders and decision -makers will ac tively participate in the data gathering sessions to validate our comprehension of their expectations for the 10-year roadmap.

They will play a pivotal role in establishing the vision for the roadmap and can provide insights on the bullet points outlined in section 4.2 if guidance is required.

Task 4.3: Financing and Implementation Assessments
The Consultant will develop strategies and recommendations for financing and implementation which may include but are not limited to:
• Include order of magnitude cost estimations for network implementation, construction, specifications, operations, and maintenance, over a 10-year period timeframe. • Identify potential funding sources and provide strong justification for funding to serve as the basis for a grant/loan application to support project implementation. • Provide strategic guidance in the planning of a broadband connectivity project that can be implemented as cost -effectively and quickly as possible for the purpose of enabling economic development and citizen connectivity.
• Scenarios of potential construction and operational relationships with public, private, and membership owned companies in the service area and with publicly and privately funded networks as suitable interconnection.
• Recommendations for legal and operational changes, including regional roles and responsibilities, to address the gap analysis and market assessment findings. • Burns & McDonnell Engineering Company in conjunction with SCAG would create a list of up to (10) potential partners, supporting entities and stakeholders for ongoing engagement. This list of qualified entities would be in alignment with the long -term SCAG broadband grant strategy and for solicitation of support documents as required for successful submittal of grant applications. 24-024-C01
38 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 287
Exhibit A

Task 4.4: Last Mile Conceptual Design Drawings
Burns & McDonnell Engineering Company shall produce and provide three preliminary c onceptual drawings that illustrate potential routes and access points for potential customers to be served by the proposed network. These proposed access points shall consist of either a fiber to the premise (FTTP) option or a fixed wireless option based on the unique requirements of the area being served., which local agencies can use towards last mile expansion for each priority area, and will also factor:
• Estimated unit count (households or businesses consisting of one or more people living or working together that occupy all or part of a standalone building) o These preliminary counts shall be pulled from existing county parcel data and preliminarily verified with a desktop review of the data. • Estimated number of telephone poles
o These vertical assets shall be pulled from SCAG provided data or publicly available data of the existing distribution assets within the priority areas being served and preliminarily verified with a desktop review of the data.
• Estimated route miles
o These preliminary counts shall be identified from the preliminary conceptual maps that Burns & McDonnell Engineering Company would produce, and the data behind them would be from SCAG provided data, publicly available data, third party data, or Burns & McDonnell Engineering Company produced data for the purpose of this project and preliminarily verified with a desktop review of the data. • Square miles
• Proposed technology to be deployed.

These route designs will identify the roads to be included in each build-out scenario. Further this task will also require the identification of installation types for the fiber optic cables (e.g., new/existing aerial, new/existing underground, and dark fiber).

Task 4.5: Technology Deployment Strategy
Building upon the last mile conceptual design drawings, the Consultant will develop high -level design schematics for each of the determined routes .3 Last mile schematics will be designed to accommodate a minimum of 100/20 speeds. Consultant team shall indicate the level of information feasible within the available budget range in their proposal response. Designs may include, but are not limited to, the following:
• General Requirements
o Network technology.
o Premise location maps
o Percentage existing/new aerial/underground
o Design Layer 1 (physical), Layer 2 (switching) and Layer 3 (routing) architecture that may utilize network equipment with considerations around remote management.

3 This task requires a minimal level of engineering work and is not intended to advance to preliminary engineering (PE), which would be performed by an agency other than SCAG and after the conclusion of this project . 24-024-C01
39 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 288
Exhibit A

o Project budget spreadsheets (e.g., material and labor construction estimates including prevailing wage requirements)
o Growth, redundancy, and owner-specified service level projections o Network capacity plans that demonstrate support for the required data speeds o Opportunities to leverage the existing broadband infrastructure such as dark fiber or planned infrastructure such as CDTs proposed middle mile segments. • FTPP Networks
o Physical topology
o Potential hut location
o Splitter placements
o Driveway lengths
o Cable management recommendations
• Fixed wireless networks
o Potential fixed wireless equipment sites
o Fixed wireless propagation maps
Task 4 Deliverables
Task Deliverables

4.1 Internet Service Provider Outreach (including agenda, presentation materials, survey data, etc.).

4.2 10-Year Technology Last Mile Roadmap

4.3 Financing and Implementation Report

4.4 Last Mile Design Drawings

4.5 High-Level
Design Schematics and Report

Deliverables shall be provided in accordance with Exhibit B, Schedule. Copies of all required Deliverables for each Task as noted above shall be provided to the SCAG’s Project Manager.

24-024-C01
40 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 289
Exhibit A

A S S U M P T I O N S A N D E X C E P T I O N S
Overall Project
► Requested information shall be returned promptly and must be completed no later than the durations in the schedule. All information shall be returned as the information is gathered and not held until complete. In the initial review of the data request, all information shall be agreed upon by both SCAG and Burns & McDonnell Engineering Company. Suppose there are substantial delays in SCAG providing Burns & McDonnell Engineering Company the requested data. In that case, Burns & McDonnell Engineering Company shall notify SCAG of this impact on the budget from rework or acceleration of additional resources or schedule. ► SCAG shall provide access to key project stakeholders to collect the necessary data to complete the scope of work.
► SCAG shall provide timely access to the data necessary to complete the scope of work. ► Burns & McDonnell Engineering Company shall use industry data, judgment, and historical figures in the modeling process.
► Burns & McDonnell Engineering Company has not planned or priced any site visits or travel to perform this scope of work. This shall be a desktop exercise that is performed from Burns & McDonnell Engineering Company approved locations. Meetings shall be conducted via the Microsoft Teams videoconferencing system (or similar).
► The solutions analyzed herein are not engineered solutions. This is a desktop review of the inputs and analysis of a solution’s technical and financial efficacy. ► It is assumed that Burns & McDonnell Engineering Company shall not run a procurement process or get competitive/market pricing from vendors or construction partners for this scope of work.

At this phase of a project and for this scope of work, rough order of magnitude estimates using comparable and historical data from previous projects shall be used to inform the assessment. ► One review cycle of Burns & McDonnell Engineering Company deliverables by SCAG is assumed. SCAG shall provide review comments in a single document. ► SCAG shall answer project related questions from Burns & McDonnell Engineering Company within 2 business days.
► Written acceptance of the deliverables shall be provided by SCAG. Any dispute regarding SCAG non-acceptance of a deliverable shall be made within 10 business days after SCAG’s notice of non-acceptance.
► Data Gathering Workshops: Burns & McDonnell Engineering Company shall participate in up to six (6), 1-hour data gathering and collection workshops to review and collate the data required to complete this scope of work. These meetings shall be conducted remotely via Microsoft Teams. ► If the funding amount changes, Burns & McDonnell Engineering Company would like the opportunity to discuss the impact of funding changes to the scope of work of the Last Mile Assessment proposal.
► SCAG has confirmed that the funding for this proposal is not federal. If the funding source changes to federal, Burns & McDonnell Engineering Company would like to request new modifications to the sample contract.

24-024-C01
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Exhibit A

Task 1 Project Admin and Management
► Schedule is based on SCAG responding to inquiries according to the agreed upon schedule. ► Estimated schedule to be defined further after information is gathered. ► Project duration is limited based on the agreed upon schedule.

Task 2 Broadband Infrastructure Existing Condition Analysis ► SCAG shall provide required network and facility information including diagrams, contracts, documents, and GIS shapefile exports.
► We have not included time in the schedule nor budget in the proposal to map your existing infrastructure in GIS. It is an owner obligation to provide this. We have assumed that their locations shall be provided in KMZ or a similar GIS format for the purposes of completing the Scope of Work.
► As part of this SOW, Burns & McDonnell Engineering Company (Licensee) may utilize 3rd party data from GeoTelCommunications, LLC to inform the location of fiber, internet exchange points, and points-of-presence (POPs) ("Third-Party Licensed Material"). This Third-Party Licensed Material enables Burns & McDonnell Engineering Company to provide more accurate market demand and opportunity information as part of our Scope of Work. If SCAG desires to directly review or interact with the Third-Party Licensed Material, both SCAG and Burns & McDonnell Engineering Company shall cooperate to provide such review or interaction. ► Following the level of details of SCAG’s Spatial Data/Metadata requirement is subject to schedule and budget restrictions.

Task 3 Needs and Market Assessment, Priority Area Identification, and Route Determination ► Size of priority areas is subject to budget and schedule and must be agreed upon by SCAG and Burns & McDonnell Engineering Company prior to proceeding to next steps. Not to exceed 200 square miles.
► Fiber routing within GIS shall cover high level routing. Splice points, strand counts, service entrances.

Task 4 Last Mile Design for Local Jurisdictions
► ISP public outreach is limited to reaching out to (3) ISPs.

Estimates
Estimates and projections prepared by Burns & McDonnell Engineering Company relating to construction costs and schedules, operation and maintenance costs, equipment characteristics and performance, and operating results are based on Burns & McDonnell Engineering Company’s experience, qualifications, and judgment as a design professional. Since Burns & McDonnell Engineering Company has no control over weather, cost and availability of labor, material and equipment, labor productivity, construction contractors’ procedures and methods, unavoidable delays, construction contractors' methods of determining prices, economic conditions, competitive bidding or market conditions, and other factors affecting such cost opinions or projections, Burns & McDonnell Engineering Company does not guarantee that actual rates, costs, performance, schedules, and related items shall not vary from cost estimates and projections prepared by Burns & McDonnell Engineering Company. If Burns & McDonnell 24-024-C01
42 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 291
Exhibit A

Engineering Company’s assumptions or estimates are later determined to be inaccurate or modified, Burns & McDonnell Engineering Company shall be entitled to an appropriate change in compensation and schedule subject to SCAG’s reasonable review of the same.

Rely
Burns & McDonnell Engineering Company has relied upon the information provided by SCAG in the preparation of the proposal and shall rely on the information provided by or through Client during the execution of this project as complete and accurate without independent verification.

Means and Methods
Burns & McDonnell Engineering Company shall not be responsible for, to include any site visits by Burns & McDonnell Engineering Company (during investigation, observation, construction or equipment installation, or the furnishing of project representatives): (a) construction means, methods, techniques, sequences, procedures, or safety precautions and programs in connection with work related to the Services; (b) the failure of any of SCAG’s other contractors or Burns & McDonnell Engineering Companys or their respective employees, subcontractors, vendors, or other project participants, not under contract to Burns & McDonnell Engineering Company, to fulfill contractual responsibilities to SCAG or to comply with federal, state, or local laws, regulations, and codes; or (c) procuring permits, certificates, and licenses required for any construction. Burns & McDonnell Engineering Company shall not have the authority to direct, control of or stop the work of SCAG’s contractors or Burns & McDonnell Engineering Companys or their respective employees, subcontractors or vendors.

Hazardous Materials
SCAG represents that it has disclosed knowledge and information to Burns & McDonnell Engineering Company regarding hazardous substances known or suspected at the site to the extent necessary for Burns & McDonnell Engineering Company to perform services. Burns & McDonnell Engineering Company is relying on such representations made herein through the execution of this Agreement and the services performed hereunder. Burns & McDonnell Engineering Company is not responsible for any conditions existing at or near the work sites prior to performance of the services by Burns & McDonnell Engineering Company’s employees or subcontractors and is not responsible for the transportation or disposal of, or title to, or the risk of loss associated with, the hazardous substances or other waste. If any hazardous materials not identified by SCAG are discovered after a project is undertaken, Burns & McDonnell Engineering Company and SCAG agree that the scope of services, schedule, and compensation shall be adjusted accordingly. SCAG agrees to release, indemnify, and defend Burns & McDonnell Engineering Company from and against all damages and claims related in any way to any pre-existing pollutant, contaminant, toxic, or hazardous substance at the site.

24-024-C01
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Exhibit A

DISCLAIMER FOR PROFESSIONAL SERVICES

Burns & McDonnell Engineering Company Engineering Company, Inc. & Co. does not provide legal, accounting, or tax advice. The reader is responsible for obtaining independent advice concerning these matters. That advice should be considered by reader, as it may affect the content, opinions, advice, or guidance given by Burns & McDonnell Engineering Company. Further, Burns & McDonnell Engineering Company has no obligation and has made no undertaking to update these materials after the date hereof, notwithstanding that such information may become outdated or inaccurate. These materials serve only as the focus for consideration or discussion; they are incomplete without the accompanying oral commentary or explanation and may not be relied on as a stand-alone document.

The information, analysis, and opinions contained in this material are based on publicly available sources, secondary market research, and financial or operational information, or otherwise information provided by or through Burns & McDonnell Engineering Company clients whom have represented to Burns & McDonnell Engineering Company they have received appropriate permissions to provide to Burns & McDonnell Engineering Company, and as directed by such clients, that Burns & McDonnell Engineering Company is to rely on such client provided information as current, accurate, and complete. Burns & McDonnell Engineering Company has not conducted complete or exhaustive research, or independently verified any such information utilized herein, and makes no representation or warranty, express or implied, that such information is current, accurate, or complete. Projected data and conclusions contained herein are based (unless sourced otherwise) on the information described above and are the opinions of Burns & McDonnell Engineering Company which should not be construed as definitive forecasts and are not guaranteed. Current and future conditions may vary greatly from those utilized or assumed by Burns & McDonnell Engineering Company.

Burns & McDonnell Engineering Company has no control over weather; cost and availability of labor, material, and equipment; labor productivity; energy or commodity pricing; demand or usage; population demographics; market conditions; changes in technology, and other economic or political factors affecting such estimates, analyses, and recommendations. To the fullest extent permitted by law, Burns & McDonnell Engineering Company shall have no liability whatsoever to any reader or any other third party, and any third party hereby waives and releases any rights and claims it may have at any time against Burns & McDonnell Engineering Company Engineering Company, Inc., and any Burns & McDonnell Engineering Company affiliated company, with regard to this material, including but not limited to the accuracy or completeness thereof.

Any entity in possession of, or that reads or otherwise utilizes information herein, is assumed to have executed or otherwise be responsible and obligated to comply with the contents of any Confidentiality Agreement and shall hold and protect its contents, information, forecasts, and opinions contained herein in confidence and not share with others without prior written authorization. 24-024-C01
44 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 293
Exhibit A

CONTRACT DELIVERABLES SUMMARY

Task 1 Deliverables:

Task Deliverables

1.1 Project Management Plan

1.2 Project Schedule

1.3 Project Management Meetings, Agenda, Minutes, and Action Item Matrices

1.4 Meeting Minutes

1.5 Grant Reporting Materials and Attachments

Task 2 Deliverables:

Task Deliverables

2.1 Regional Infrastructure Assessment

2.2 Regional Infrastructure Assessment ArcGIS File Geodatabase

Task 3 Deliverables:

Task Deliverables

3.1 Needs Assessment Methodology Report, Partnership agreement (Local Jurisdiction/SCAG)

3.2 Public Outreach (including agenda, presentation materials, etc.)

3.3 Gap Analysis and Public Asset Inventory Report

3.4 Market Assessment Report

3.5 Route Determination Report

Task 4 Deliverables:

Task Deliverables

4.1 Internet Service Provider Outreach (including agenda, presentation materials, survey data, etc.).

4.2 10-Year Technology Last Mile Roadmap

4.3 Financing and Implementation Report

4.4 Last Mile Design Drawings

4.5 High-Level
Design Schematics and Report

24-024-C01
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EXHIBIT B
Schedule
24-024-C01
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Exhibit B – Schedule

Rev 01/19/23

Task Name Month
Task 1 Project Management and Initiation 1-2
PO Received TBD
Kick Off 1
Develop Project Management Plan and Schedule 1-2
Task 2 Broadband Infrastructure Existing Conditions Analysis 3-8 Existing Infrastructure Assessment 3-8
Create ArcGIS File 3-8
Task 3 Needs and Market Assessment, Priority Area Identification, and Route Determination 9-16 Create Priority Areas Report Based on Summary of Findings from Task 2 9 Create Public Outreach Engagement Plan 10-11
Create Public Outreach Report 12-14
Create Gap Analysis and Public Asset Inventory for Priority Areas 15-16 Create Market Assessment Report 15-16
Create Route Determination Report 15-16
Task 4 Last Mile Design for Local Jurisdictions 10-16
Create ISP Outreach Report 10-11
Create 10-Year Technology Last Mile Roadmap 12-16
Create Financing and Implementation Summary of Findings 12-16 Create Last Mile Conceptual Design Drawings 12-16
Create Technology Deployment Strategy 12-16
24-024-C01
47 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 296

EXHIBIT C
Price Sheet

24-024-C01
48 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 297

Rev 01/19/23

Prime Consultant: Burns & McDonnell Engineering Company, Inc.

Sub-Consultants: The Robert Group
Tasks No. Task Description Deliverable(s) %Compensation Cost Percentage
of
Completion
for Current
Period
Current
Period
Billing
Amount
Percentage
of
Completion
to Date
Total Amount Billed
to Date
(includes column I)
Remaining
Balance
Task 1 - Project Administration and Management 125,806.24

1.0 Kick Off 5% 41,935.41

1.1 and 1.2 Project Management Plan and Schedule Draft Project Management Plan and Schedule 8% 67,096.66

1.1 and 1.2 Project Management Plan and Schedule Final Project Management Plan and Schedule 2% 16,774.16 TOTAL Task 1 125,806.24
Task 2 - Broadband Infrastructure Existing Conditions Analysis 100,644.99

2.1 and 2.2 Regional Infrastructure Assessment of the SCAG Region and Infrastructure Assessment ArcGIS File Geodatabase Draft ArcGIS File 10% 83,870.82

2.1 and 2.2 Regional Infrastructure Assessment of the SCAG Region and Infrastructure Assessment ArcGIS File Geodatabase Final ArcGIS File 2% 16,774.16 TOTAL Task 2 100,644.99
Task 3 - Needs and Market Assessment, Priority Area Identification, and Route Determination 427,741.20

3.1 Needs Assessment Methodology and Determination of Priority Areas Draft Priority Areas Report 3% 25,161.25

3.1 Needs Assessment Methodology and Determination of Priority Areas Final Priority Areas Report 1% 8,387.08

3.2 Public Outreach Draft Public Outreach Engagement Plan 10% 83,870.82

3.2 Public Outreach Final Public Outreach Engagement Plan 5% 41,935.41

3.2 Public Outreach Draft Public Outreach Report 8% 67,096.66

3.2 Public Outreach Final Public Outreach Report 2% 16,774.16

3.3 Gap Analysis and Public Asset Inventory for Priority Areas Draft Gap Analysis and Public Asset Inventory 4% 33,548.33

3.3 Gap Analysis and Public Asset Inventory for Priority Areas Final Gap Analysis and Public Asset Inventory 1% 8,387.08

3.4 Market Assessment Report Draft Market Assessment Report 10% 83,870.82

3.4 Market Assessment Report Final Market Assessment Report 2% 16,774.16

3.5 Route Determination Report Draft Route Determination Report 4% 33,548.33

3.5 Route Determination Report Final Route Determination Report 1% 8,387.08 TOTAL Task 3 427,741.20
Task 4 - Last Mile Design for Local Jurisdictions 184,515.81

4.1 Internet Service Provider (ISP) Outreach Draft ISP Outreach Plan 2% 16,774.16

4.1 Internet Service Provider (ISP) Outreach Final ISP Outreach Plan 1% 8,387.08

4.1 Internet Service Provider (ISP) Outreach Draft ISP Outreach Report 2% 16,774.16

4.1 Internet Service Provider (ISP) Outreach Final ISP Outreach Report 1% 8,387.08

4.2 10-Year Technology Last Mile Roadmap Draft 10-Year Technology Last Mile Roadmap 5% 41,935.41

4.2 10-Year Technology Last Mile Roadmap Final 10-Year Technology Last Mile Roadmap 1% 8,387.08

4.3 Financing and Implementation Recommendations Draft Financing and Implementation Summary of Findings 3% 25,161.25

4.3 Financing and Implementation Recommendations Final Financing and Implementation Summary of Findings 1% 8,387.08

4.4 Last Mile Conceptual Design Drawings Draft Last Mile Conceptual Maps 2% 16,774.16

4.4 Last Mile Conceptual Design Drawings Final Last Mile Conceptual Maps 1% 8,387.08

4.5 Technology Deployment Strategy Draft Technology Deployment Strategy 2% 16,774.16

4.5 Technology Deployment Strategy Final Technology Deployment Strategy 1% 8,387.08 TOTAL Task 4 100% 184,515.81
TOTAL 838,708.24
TOTAL CONTRACT 838,708.24
24-024-C01
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EXHIBIT D -1
Available Funding Schedule

24-024-C01
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Exhibit D -1

Rev 01/19/23

Available Funding Schedule
Total funding available for payment under this Agreement is subject to Section 3 c. (Term): $838,708.24

Initial Funding
Project Contract Funding Period Funding Funding
Number Tasks From To Source % Amount
100-4901W6.02 1 - 4 NTP 06/30/24 California Public
Utility Commission
Grant
100.00% $427,111.00
Total Funding: $427,111.00
Contract Value: $838,708.24 Unfunded Contract Balance: $411,597.24 PO-010189 V004584
Purchase Order No. Vendor #
24-024-C01
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EXHIBIT E

UNILATERAL AMENDMENT FORM

24-024-C01
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Rev 08/04/22
AMENDMENT NO. [INSERT NUMBER]

TO THE CONTRACT NO. [INSERT NUMBER]
[INSERT TITLE OF AGREEMENT] (“Agreement”)

1. Parties and Date.

This Unilateral Amendment No. [__] to the Agreement is effective as of this ___ da y of _______________, 2022, by and between the Southern California Association of Governments (“SCAG”) and [INSERT CONSULTANT NAME] (“Consultant”).

2. Recitals.

2.1 Unilateral Amendment Authority. Section 9.c. of the Agreement provides that SCAG may unilaterally amend the Agreement if such Amendment relates solely to an administrative revision by SCAG of the Available Funding Schedule set forth in Exhibit D-1.

2.2 Amendment Purpose. SCAG desires to unilaterally amend the Agreement to update the Available Funding Schedule set forth in Exhibit D-[__].

3. Terms.

3.1 Amendment. Exhibit D-[__] is superseded and replaced in its entirety with Exhibit D-[__], attached hereto and incorporated herein by this reference.

Consultant shall not invoice SCAG in excess of the total available funding or in advance or after the Funding Period as shown in the Available Funding Schedule.

3.2 Continuing Effect of Agreement. Except as amended by this Amendment No. [__], all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. [___].

Cindy Giraldo
Chief Financial Officer

Date

24-024-C01
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EXHIBIT F
Spatial Data/Metadata Requirements

24-024-C01
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Exhibit F - Spatial Data/Metadata Requirements

Rev 08/04/22

The following are fields required for documentation of data received by SCAG. The metadata documentation follows that presented in FGDC-STD-001-1998 “Content Standard for Digital Geospatial Metadata,” commonly referred to as the FGDC standard. http://www.fgdc.gov/metadata

A number of these metadata fields require prior consideration between SCAG and contractors before data acquisition or collection begins. These are:

1. Progress
SCAG requires that a contractor indicate the anticipated progress of all datasets upon Project completion. Explanations should be prepared for any datasets that are not complete at the close of the contract.

2. Access Constraints
Any anticipated constraints on access to datasets need to be documented and agreed to by SCAG before data collection or acquisition begins. Any licensing requirements should be spelled out here.

3. Use Constraints
Any anticipated constraints on use of data sets need to be documented and agreed to by SCAG before data collection or acquisition begins. Any licensing requirements should be spelled out here.

4. Security Classification
Any anticipated sensitivities of the data set or security implications of the dataset need to be documented and agreed to by SCAG before data collection or acquisition begins. This applies to general sensitivity issues and not strictly national security classification systems. For example, SCAG needs to know that the data being collected is sensitive to the extent that it should not be displayed at large scales on the Internet.

5. Native Data Set Environment
The data set format needs to be documented and agreed to by SCAG before data collection or acquisition begins. SCAG works primarily with standard ESRI formats like shapes and coverages.

6. Attribute Accuracy Value
The accuracy of attributes needs to be documented and agreed to by SCAG before data collection or acquisition begins. For example, if elevations are being collected SCAG needs to be informed that they will be plus or minus 50 feet.

7. Horizontal Positional Accuracy Value
The horizontal positional accuracy needs to be documented and agreed to by SCAG before data collection or acquisition begins. For example, if point locations are being recorded from a GPS receiver, SCAG needs to be aware that 90% of the points are within 30 meters of true ground position.

8. Source Currentness Reference
SCAG needs to be informed if the currentness reference is not ground condition. The currentness reference is the basis on which the time period content is determined. The date of the data set can be based on a number of things such as publication date, release date, or delivery date. An example would be the 2000 Thomas Brothers centerline file. The date usually associated with this file is the 24-024-C01
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year indicated on the “Thomas Guide” that the digital data was used to create. It is much more likely that the data actually represents some time in 1999, since the books came out in time for Christmas 1999. The currentness reference in this case could be Thomas Guide title date.

9. Horizontal Coordinate System Definition
SCAG needs to know and agree to the data projection. It would be very unusual to accept a projection that does not have standard parameters. Data will most often be required in North American Datum 1983 UTM zone 11. The parameters for this projection are:

Projection: Transverse Mercator
Parameters
False Easting 500000.0000000
False Northing: 0.0000000
Central Meridian: -117.0000000
Scale_Factor: 0.999600000
Latitude of Origin: 0
Linear Unit: Meter (1.000)
Geographic Coordinate System:

Name: GCS_North_American_1983
Angular Unit: Degree (0.017453292519943295)
Prime Meridian: Greenwich (0.000000000000)
Datum: D_North_American_1983
Spheroid: GRS_1980
Semimajor Axis: 6378137.000000000000
Semiminor Axis: 6356752.314140356100
Inverse Flattening: 298.2572221010000200

SCAG also requires all codes used in any spatial data set to be provided in an agreed upon electronic format.

The FGDC standard for data documentation is a very complete standard covering every kind of spatial data. What follows are the items for metadata documentation in datasets typically received at SCAG. Generally SCAG receives data pertaining to phenomena on the earth’s surface in a vector form of points, lines, or polygons. Other types of data, which might include such forms as raster data and imagery data or some theme as subsurface water depth, would require reconsideration of some of the specific items required. The types of metadata information outlined at the first and second levels below are required of all data.

The outline numbers are from FGDC-STD-001-1998 “Content Standard for Digital Geospatial Metadata.” The actual fields that require input are underlined

1. Identification Information

1.1 Citation

1.2 Description
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1.2.1 Abstract – Brief narrative summary of the dataset (Required)

1.2.2 Purpose - Intentions for which the dataset was acquired/developed (Required)

1.2.3 Supplemental Information – Any information not elsewhere documented that will give insight into the dataset. (Optional)

1.3 Time Period of Content

1.4 Status

1.4.1 Progress – The state of the data set. An explanation is required if the final progress for a dataset received due to a contract is not “Complete.” (Required).

1.4.2 Update Frequency – The frequency with which changes to the dataset are made (Required).

1.5 Spatial Domain

1.5.1 Bounding Coordinates

1.5.1.1 West - Most Western boundary (Required – SCAG will accept in Projection Units if a standard projection is used).

1.5.1.2 East - Most Eastern boundary (Required – SCAG will accept in Projection Units if a standard projection is used).

1.5.1.3 North – Most Northern boundary (Required – SCAG will accept in Projection Units if a standard projection is used).

1.5.1.4 South – Most Southern boundary (Required - – SCAG will accept in Projection Units if a standard projection used).

1.6 Keywords

1.6.1 Theme

1.6.1.2 Theme keyword/s – Keyword or words describing theme (Required)

1.6.2 Place

1.6.2.1 Place keyword/s – Keyword or words describing location (Required)

1.7 Access Constraints – Restrictions and legal prerequisites for accessing the dataset (Required)

1.8 Use Constraints – Restrictions and legal prerequisites for using the data after access is granted 24-024-C01
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(Required).

1.9 Point of Contact

1.12 Security Information

1.12.2 Security Classification – Any restrictions imposed by national security concerns. Must be agreed upon before data acquisition. SCAG will accept non-traditional evaluations of confidentiality that a contractor may deem appropriate. A dataset for example may be classified “may be inappropriate for display on Internet at large scales.” These evaluations are for security concerns not data quality concerns. (Required)

1.13 Native Data Set Environment – Software and format in the producers processing environment.

The contractor is considered the producer even if data has been acquired form another source. (Required)

2. Data Quality Information

2.1 Attribute Accuracy

2.1.1 Attribute Accuracy Report – an explanation of the accuracy of assigned values in the data set (if applicable)

2.1.2 Quantitative Attribute Accuracy Assessment

2.1.2.1 Attribute Accuracy Value – an estimate of the accuracy assigned values in the data set (if applicable)

2.1.2.2 Attribute Accuracy Explanation – and identification of the test that produced the Attribute Accuracy Value (if applicable)

2.4 Positional Accuracy

2.4.1 Horizontal Positional Accuracy

2.4.1.1 Horizontal Positional Accuracy Report – an explanation of the accuracy of the horizontal coordinate measurements (if applicable)

2.4.1.2 Quantitative Horizontal Positional Accuracy Assessment

2.4.1.2.1 Horizontal Positional Accuracy Value – numeric value assigned to summarize the accuracy of the horizontal coordinate measurements (Required)

2.4.1.2.2 Horizontal Positional Accuracy Explanation – the test that produced the Horizontal Positional Accuracy Value (if applicable)

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2.5 Lineage

2.5.1 Source Information

2.5.1.1 Source Citation

2.5.1.2 Source Scale Denominator – the denominator of the representative fraction of the source map or the scale representative of the accuracy of the digital product (e.g. a scale of 1:24,000 is 24000) (Required)

2.5.1.3 Type of Source Media – media of the source dataset (if applicable - digitized data would have the Type of Source Media reported as “paper”)

2.5.1.4 Source Time Period of Content

2.5.1.4.1 Source Currentness Reference – The basis on which the time period content (9.1.1 Calendar Data, or 9.3.1 Beginning Date/9.3.3 Ending Date) is determined. Most acceptable is “ground condition.” This feature/condition exited on the ground in the time period specified. Other currentness references (publication date, date acquired from agency,) need to be discussed with SCAG. (Required).

3. Spatial Data Organization Information

3.1 Indirect Spatial Reference – name of means through which locations are referenced in the dataset. Pertains to mechanisms like geocoding addresses or linear referencing systems. (if applicable)

3.2 Direct Spatial Reference – type of object used to represent space in the data set (e.g. Point, Line, Polygon) (Required)

4. Spatial Reference Information

4.1 Horizontal Coordinate System Definition

4.1.1 Geographic

4.1.1.1 Geographic Coordinate Units (Required if geographic)

4.1.2 Planar

4.1.2.1 Map projection

4.1.2.1.1 Map Projection Name (Required if planar system, if standard projection is used place it here. Most acceptable is NAD_1983_UTM_Zone_11N.) 24-024-C01
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4.1.2.2 Grid Coordinate System (Required if planar system and not standard)

4.1.2.3 Planar Coordinate Information

4.1.2.3.1 Planar Distance Units (Required if planar system and not standard)

4.1.4 Geodetic Model

4.1.4.1 Horizontal Datum Name (Required if not standard)

4.1.4.2 Ellipsoid Name (Required if not standard)

5. Entity and Attribute Information

5.1 Detailed Description

5.1.1 Entity Type (for each)

5.1.1.1 Entity Type Label – the name of the entity type (e.g. integer, text)(Required)

5.1.1.2 Entity Type Definition – the definition of the entity type (if necessary)

5.1.1.3 Entity Type Definition Source – the source of the definition (if necessary)

5.1.2 Attribute (for each)

5.1.2.1 Attribute Label – Name in file (Required for non-standard attributes. Standard attributes are those produced by software. For example, a polygon coverage produced by ESRI software will have such fields as perimeter and area that are created and maintained by the system)

5.1.2.2 Attribute Definition – What the attribute represents (Required for non-standard attributes)

5.1.2.3 Attribute Definition Source – Authority of the field definition. This could be a citation to a document or the group responsible for the field. (e.g. The U.S. Census Bureau is the authority for the definition of the field P1 which is Population) (Required for non-standard attributes)

5.1.2.4 Attribute Domain Values

5.1.2.4.1 Range Domain

5.1.2.4.1.1 Attribute Units of Measure – the standard of measurement (Required if range)

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5.1.2.4.1.2 Attribute Measurement Resolution – the smallest unit to which an attribute value is measured (if applicable)

5.1.2.4.2 Codeset Domain Codes – must be supplied in a digital file

5.1.2.4.2.1 Codeset Name (Required if codeset)

5.1.2.4.2.2 Codeset Source (Required if codeset)

5.1.2.5 Attribute Value Accuracy Information

5.1.2.5.1 Attribute Value Accuracy – an estimate of the accuracy of attribute values (Required if applicable)

5.1.2.5.2 Attribute Value Accuracy Explanation – how the Attribute Value Accuracy was derived (Required if applicable)

5.1.2.6 Attribute Measurement Frequency – the frequency that the measurements are added (Required if applicable)

6. Metadata Reference Information

6.1 Metadata Date – the date the metadata was created or last updated (Required)

6.2 Metadata Contact – the party responsible for the metadata information. (Required)

7. Citation Information

7.1 Originator – name of organization or individual that developed the dataset (Required).

7.2 Publication Date – the date the data was published or made available for release (Required).

7.3 Other Citation Details (Optional)

8. Time Period of Content

8.1 Single Date/Time – the year or portion of year (e.g. month) for which the data corresponds to the Currentness Reference. SCAG does not anticipate that time will be a factor in metadata for information typically collected for this agency.

8.1.1 Calendar Date – the year and optionally month (Required if not reported within 9.3 Range of Dates/Times)

8.2 Range of Dates/Times – the range of years or portion of years (e.g. month) for which the data corresponds to the Currentness Reference. SCAG does not anticipate that time will be a factor in metadata for information typically collected for this agency. 24-024-C01
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8.2.1 Beginning Date – the first year and optionally month (Required if not reported as 9.1.1 Calendar Date)

8.2.2 Ending Date – the last year and optionally month (Required if not reported as 9.1.1 Calendar Date)

9. Contact Information

9.1 Contact person primary

9.1.1 Contact Person (Required if person is best mechanism to report contact)

9.1.2 Contact Organization (Required if person is best mechanism to report contact)

9.2 Contact Organization (Required if not reported as 10.1 Contact person primary)

9.3 Contact Voice Phone (Required)

9.4 Contact Fax Phone (Optional)

9.5 Contact E-mail (If available)

9.6 Contact Instructions – supplemental information, which might include web sites and other mechanisms for contact (Optional).

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EXHIBIT G
Graphics Requirements for Consultants

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1. Web Projects
Web Deliverables: Please provide all files required to launch a live site. • All HTML documents/templates and supporting CSS, JavaScript, jQuery etc. • All linked document files e.g. PDF, Word, Excel, PowerPoint. • Graphics in JPEG format, 72 dpi, RGB mode for photos. • Logos GIF, PNG or SVG format for use on the web.
• Include all fonts, original high-resolution photos and native files for all graphics (including PSD with layers if applicable) used to create the web page or layout.

2. Print Projects
Native File: Please provide a packaged InDesign file (currently running InDesign CC). • Be sure to include IDML, all fonts and linked JPEG, TIFF, PSD, AI and/or EPS files. • Provide a PDF of the final document layout.
• Provide a hard copy of the document if Project has gone to press. • Linked documents requirements:
o Images
▪ All images must be 300 dpi or higher.
▪ Scanned images should be CMYK in TIFF or JPEG format for color; greyscale for B&W. ▪ Include all composited collages or graphics in native format such as layered Photoshop (PSD) and/or Illustrator (AI); don’t forget to include fonts! ▪ Photo credits should be complete with photographer name, location/name of photo and any appropriate captions.
o Charts/Graphs
▪ Be sure to include all linked files when providing Microsoft Excel files. ▪ Native files with fonts.
o Logos & Other Graphics
▪ EPS files are preferred. When EPS is unavailable, high-resolution image files may also be used (TIFF, PNG, JPEG, PSD).
• Whenever applicable, please provide preferred print specifications including size, paper stock (weight and color), colors (Pantone, CMYK, B/W), one or two–sided printing, varnish, bleed, trim, and binding details.

3. Photography
Photos of Meetings/Events/Location Shot: SCAG requests that consultants provide copies of all photos taken at meetings, conferences and/or project sites. • RAW or original resolution JPEG files from DSLR cameras are preferred. • Files may be sent via file hosting service (eg. Dropbox), flash drive, external hard drive. • Traditional photo prints will only be acceptable if a high resolution scan is enclosed. • Photo credits should be complete with photographer’s name, location/name of photo and required captions.

4. Documentation
• Be sure to include your contact information (name, telephone and e-mail address). SCAG wants to be able to contact you in the case we have specific questions and/or if there is missing information.

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5. Media Preference
• Dropbox or other file hosting service; best to upload a compressed zipped file. • Flash drive or external hard drive.

6. Your SCAG Contacts
• Ludlow Brown, Sr. Graphic Designer
[email protected]
(213) 236-1976
• Diana Chamberlain, Sr. Graphic Designer
[email protected]
(213) 236-1815

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EXHIBIT H
Web Policies & Guidelines for Consultants

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1. Tools and Requirements
Web staff uses these tools and applications for development and maintenance of SCAG’s site:
• Microsoft Sharepoint 2010 and 2016
• Adobe Dreamweaver
• Adobe Photoshop
• JavaScript, AJAX
• jQuery
• ASP.Net
• Cascading Style Sheets
• SCAG uses IIS7, IIS8, and IIS10

2. Web Development Process
Information Gathering : Purpose, Main Goals, and Target Audience • Set goals for the website
• Define website's target audience

Planning: Sitemap and Wireframe Creation
• Create a sitemap sketch
• Create a wireframe/mock-up
• Select technology stack (programming language, frameworks, CMS)

Design: Page Layouts, Review, and Approval Cycle
• Create page layouts
• Review the layouts
• Get feedback on the layouts
• Change the layout when required

Content Writing and Assembly
• Create new content
• Get content ready for migration

Coding
• Build and deploy Website
• Add special features and interactivity

Accessibility for Disabled Users
• Web accessibility means that people with disabilities can perceive, understand, navigate, contribute to and interact with the web. Web accessibility also benefits others, including people with changing abilities due to aging. SCAG strives to make all of its web resources accessible to persons with disabilities in accordance with Federal law (Section 508). There are various types of physical disabilities that impact user interaction on the web. Vision loss, hearing loss, limited manual dexterity and cognitive disabilities are examples, with each having different means by which to access electronic information effectively. SCAG’s goal is to provide a good Web experience for all visitors to the SCAG suite of websites.

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Testing, Review and Launch
• Test the created website
• Upload the website to server
• Final (regression) testing and launch

Maintenance: Opinion Monitoring and Regular Updating
• Add user report system
• Fix bugs as soon as possible
• Keep website up-to-date

3. Web Design Technical Standards
• Straightforward Design: The SCAG suite of websites uses simple information architecture, organized navigation and reliable heading throughout. By utilizing headings, lists and consistent structure, SCAG is able to achieve an esthetic and engaging site that encourages participation by all.
• Color: SCAG ensures that foreground and background color combinations provide sufficient contrast when viewed by someone having color deficits or when viewed on a black and white screen. Color alone is never used as a communication device. • Text: Normal text on a web page ensures the widest compatibility and fastest download. It also assists search engines in indexing information on the website. Be sure to allow sufficient white space for good readability. Avoid italicized fonts, as they are difficult to read. Avoid excessive use of graphic elements. Keep amount of text and graphics to a minimum for easy viewing and shorter download time. Break very long text documents into multiple pages. • Sitemap: SCAG prefers a text-only sitemap for each of its sites as an index to that site. Text- only sitemaps work well with screen readers.
• Style Sheets: Cascading Style Sheets (CSS) centralize the style information for the website.

Using CSS allows for greater flexibility when a style change is needed to accommodate a specific disability. It also keeps the code clean and is faster to download. • Navigation: SCAG’s sites include both textual as well as graphical navigation aids. • Layout: The design was built to accommodate the vast majority of visitors. SCAG’s websites are best viewed at 1024 x 768 resolution, per W3C.org, “a screen resolution of 1024 x 768 is predominant in the US,” however the sites are navigable using screens that utilize other resolutions.
• Graphics: All graphics must be approved by the Graphics department and conform to SCAG’s standard layout and design. Graphics must be in JPEG format, 72 dpi, and RGB mode for photos.

All logos must be in GIF, PNG or SVG format. Requests for new graphics should be coordinated directly with Ludlow Brown and meet these requirements
• Templates: Standardized layout design must be used to maintain a consistent look and feel of the website.
• Link to SCAG’s Site: All newly designed sites must include SCAG’s logo and URL, www.scag.ca.gov on the main page for easy navigation. SCAG’s logo and URL should be prominently displayed at the top of each page.
• Images with Alternative Text: This text provides further detail for an image or destination of a hyperlinked image. It is commonly called an ALT tag, and they are accessible to screen readers, and visible when the mouse is placed over the image. They also provide a description of graphics for people who have images turned off on their browser. 24-024-C01
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• Dynamic Content: SCAG ensures that dynamic content is accessible or provides an alternative presentation or page.
• Browser Portability: SCAG tests its websites with a variety of web technologies including, but not limited to, graphical browsers with the images turned off, browsers with JavaScript disabled and a text-based browser that can be used with an assistive technology. SCAG avoids the use of tags or extensions that are supported by only one browser. • Keyboard Commands: Navigate through SCAG’s Web pages without the use of a mouse. (Note: Some commands may not work with every web browser version.) For example:

If you want to... Select...

Increase text size Ctrl + +
Decrease text size Ctrl - -
Move forward from link to link Tab
Move backward from link to link Shift + Tab
Move from box to box Tab
Go to top of page Ctrl + Home
Go to bottom of page Ctrl + End
Close window Ctrl + W
Go back a page Alt + Left Arrow
Go forward a page Alt + Right Arrow
Go to search box Alt + S

• Scripts and AJAX: Alternative methods for searching or alternative content are provided in case active features are inaccessible or unsupported by a user’s browser.

4. Quality Assurance Testing
• Conduct testing against specifications. Ensure that new development works as planned. Fix bugs and limit changes here to bugs, unless absolutely important. • Web browser compatibility testing. Check to make sure that content is fully compatible with major web browsers which include Internet Explorer 7+, Firefox, Safari, Chrome and Lynx (text based browser).
• Spell check. Make sure there are no spelling errors on the new content. • Check for usability. Is the newly developed content understandable and intuitive? • Accessibility check. Check the Website content against the Accessibility (https://www.section508.gov/test.)

5. Production Process
Final Testing and Migration
• Once the site has been approved, it will be transferred to SCAG’s web server. Web material will be posted/accepted only upon final review and approval by SCAG staff. • A copy of the website source code must be provided.
• Provide the final PSD file (with layers if applicable) of the website layout design. Also include all original higher resolution graphics and fonts that were used to create the website layout. • Be sure to include all HTML files, and all linked document files e.g. PDF, Word, Excel, PowerPoint.

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EXHIBIT I
Mapping Guidelines for Consultants

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This document sets out some basic guidelines and “rules of thumb” that should always be considered whenever consultant creates maps for SCAG-related projects. The guidelines cover three major areas: procedural or process, physical presentation, and data presentation.

The main points of the procedural guidelines can be summarized as the need to work, early on, with other key staff and stakeholders. GIS, Web, and graphic staff can offer valuable information. Key members of the intended audience can often provide important issues that the map(s) should address.

Physical presentation covers basic required map elements, e.g., SCAG logo, titles, aesthetics, geographical extents and use of insets.

The guidelines for data presentation provide strategies for bringing out the “story” embedded in the data. They cover such things as proper geographical scale, using the correct statistic, and how to summarize the data into meaningful groups.

QUICK SUMMARY OF GUIDELINES

The following guidelines apply to maps that are being created to represent the SCAG region. However, many of these principles are applicable to non-regional maps.

Procedures

1. Talk to stakeholders about their issues to make sure the map adequately addresses them.

2. Work with the Web staff and graphics if the map is going to be posted on SCAG web site or published by an outside printer.

Physical Presentation

3. Always include the basic map elements (e.g., titles, scale bar, legend, etc.) – Map templates are available upon request.

4. The map should visually extend beyond the SCAG boundaries in order to show the surrounding geographies (e.g., Arizona, Mexico, etc.)

5. If using insets, try to use consistent legends for the insets and the main map.

6. Maps about regional data need to show, even if only as an inset, the complete region.

Data Presentation

7. Data distributions should determine how the map should look. Do not automatically use the same map layout for all data. Sometimes different data need to be displayed differently to make an effective presentation.

8. Design the map to “show off” the data. Make obvious relationships apparent do not use statistics that hide them.

9. Take the time to determine how to group the data for displaying.

10. Choose a level of geographic detail that best shows the data and takes into consideration the actual size of the map that will be viewed.

11. Make the map easy to understand.

12. Try not to create too many categories for thematic maps (e.g., 30 land use categories)

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DISCUSSION OF GUIDELINES

1. Communicate with stakeholders
Communicate with stakeholders throughout the region to determine what issues they may have that are related to the report the maps will be a part of. Maps that provide information about these issues should be sensitive to the stakeholder’s geographic area. For that area, make sure the data is adequately displayed. This may solve more problems than any cartographic solution.

Imperial County, for example, may have an issue with the non-English speaking population. If this is displayed as a density, i.e., non-English speaking population per square mile, Imperial County concentrations will not show up. This is because of their low overall population density compared to the rest of the region. The data may better be displayed as the percentage of the total population who are non-English speaking. Then, even in parts of the region that have little population, high percentage areas will be apparent on the map.

2. Make maps Web and publication friendly.

Many SCAG maps will eventually be displayed on the SCAG Website. Work with the Web staff and Graphics early on to make sure that maps are prepared with Web display in mind. Check with Graphics if the maps need to be inserted into a document for publication, especially by an outside printing agency.

3. Basic elements that every map should contain:
• Title
• Legend
• SCAG logo
• Date
• North arrow
• Scale bar
• Source of data

4. SCAG region maps should include areas immediately outside of the region Maps need not include all the data for areas outside the SCAG region but major features such as highways should be included. When practical, the surrounding counties should be labeled. There should be enough differentiation in color schemes and shadings to make it obvious to the viewer that these are peripheral areas and not the focus of the map.

5. Try to use consistent legends for the main map and any insets In general, a consistent classification scheme needs to be used for both the main map and any insets in the map.

If they use different legends, great care needs to be taken to include readable legends for both the main map and any insets. For example, color gradations can be created that show distributions on the low end of the range, used for the main map, and the high end of the range, used for the inset.

6. The map needs to show the complete region
If the map is about regional data then the map needs to show the complete region. If the data is highly concentrated in a small area of the region then one should show the region as an inset with an indication of what part of the region is being displayed on the main map.

The main map can show the concentration with an inset showing the regional context or the main map can show the region with concentrations in insets. It all depends on the nature of the distribution and the information the author wants the map to convey. An example would be a map of textile employment. Textile employment has a large concentration in downtown Los Angeles. The main map could focus on downtown with an inset showing where that map is in relation to the region. Then again, the main map may be the entire region with an inset showing the central business district. Both should be looked at to see which best conveys the message. 24-024-C01
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If a map is illustrating a report that applies to only a part of the region, say a corridor study, than the map should not be shown as a regional map. Although, an inset should be included to show where the “corridor” is in relation to the region.

7. Data distributions should dictate how the map is presented In other words, do not use the same map over and over again, just changing the title and the variable mapped.

That does not mean a consistent look and feel for the maps should not be developed, but that has more to do with using standard color schemes, fonts, logos, highway shields, etc. The area covered and the geographic distribution highlighted needs to be driven by the data rather than the convenience of mapping everything the same way. The maps for “Prime Agricultural Land” and “Density of Manufacturing Employment” should not emphasize the same areas. Prime agricultural land is obviously rural and decentralized while the density of manufacturing employment is urban and fairly concentrated.

8. Make obvious relationships apparent
Be careful not to display data in a manner such that obvious relationships are hidden. An example of this would be to display Hispanic population using a density per square mile rather than as a percentage of the total population. The percentage of Hispanics in many of the rural areas is quite high but this disappears when displayed as a density because the rural population density, in relation to the urban area, is very low.

Here is an example where using percentages may be inappropriate: The map is trying to show concentrations of potentially hazardous waste producing industries. One could show these as a percentage of total industries. In that case, areas that have a “dangerously high” number of these factories, but are in an area of extremely heavy concentrations of all types of manufacturing, would not stand out on the map. Here, it is the actual number of dangerous factories that matter, not their proportion; therefore, a simple count would be better than either a percentage or density.

9. Take the time to determine how to group the data
Do not just automatically group it into quartiles or quintiles (groups of four and five with equal numbers in each class). Think about the theoretical or practical reasons to classify the data a particular way. For example, if one is mapping housing density, 2.5 units per acre is a rule of thumb for urbanization, or 8 units per acre is a rule of thumb for multiple housing; these may be more meaningful cutoffs than just breaking the data into four equal groups. Another example: it may be more useful to display income data as above or below the poverty line or as a certain percentages above or below the regional average.

Often times the data will offer “natural breaks” that may have some underlying meaning. Looking at a simple frequency distribution will often show that the data is distributed in two or three major groups; this may be telling a story that would be buried by using groups of equal numbers.

10. Choose an appropriate level of geography
Put some thought into what is the most appropriate mapping unit. What level of geographic detail will best demonstrate the relationships the map is trying to show? If the map is trying to compare levels of economic growth among cities, it would be unsuitable to display data at the block level. Conversely, changes in land use displayed at the city level will not make much sense.

Also bear in mind the size of the map most likely to be viewed; a map that is going into a report cannot support the level of geographic detail that a full size 33 by 44 inch wall map can.

11. Always try to make the map easy to understand
Unless there is good reason for it, one should keep the number of groups to six or less. Six is about the maximum “differentiations” most people can carry in their head without having to keep jumping back and forth 24-024-C01
73 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 322

Rev 08/04/22

between the map and the legend. If more than six categories are being used, try to work with color schemes that are graduations or intuitive.

Color graduations are usually effective for handling a high number of groups. Color graduations are where one uses the same basic color, but it increases from light to dark as the value increases. These only work if the data being mapped is numeric, like quantities, densities, or percentages.

If the groups represent different classes of things (apples and oranges), not just more or less of the same thing, color graduations will not work. In this case, try to use colors that have an intuitive or everyday link with the item displayed. For example, if one is mapping land use, green would make sense for agriculture, blue for water.

SCAG has a set of standard colors for different types of land uses. It is suggested that these be used when mapping common land use classifications, e.g., low density residential, agriculture, etc. Contact the GIS staff at 213-236-1800 for a GIS layer file.

If some of the groups are related, use similar colors for them. An example would be a map showing high and low density residential and three types of industrial land uses. In this case, it would be a good idea to show the residential land in different shades of one color and the industrial land in gradations of another color.

Avoid making the map busier than it has to be. Do not add items to the map that are not necessary for the “story” it’s telling just to “jazz it up”. These generally end up being more of a distraction than useful. Examples of these would be making things 3-D when the third dimension does not represent any additional information, complicated textured fill patterns, e.g., cross-hatching, when simple fills would work, lots of different colors and texture combinations, and excessive labeling.

24-024-C01
74 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 323

Rev 08/04/22

EXHIBIT J
Contract Amendment Request Form

24-024-C01
75 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 324

Rev 08/04/22

Contract Amendment Request Form (Request)
Instructions:

Requestor to complete section  (if Requestor is the SCAG Project Manager, complete section  and) and email this Request to the SCAG Contract Administrator, who will confirm receipt via email and provide further instructions. This Request only initiates the amendment process. SCAG must still approve an actual Contract Amendment (Amendment) that shall not become effective without the full execution by the Parties. Such Amendment shall become effective no earlier than the date that SCAG received this Request. SCAG shall disallow any and all costs incurred by the Consultant prior to the effective date of an Amendment resulting from this Request.

SCAG Contract No.: Consultant:

Item(s) Requested to be Changed:
(check all that apply and provide justification):

Contract Term

Price Sheet

Project Manager

Scope of Work

Other
From: (Price Sheet/Rate Structure) New Name: (Specify - To: For changes to: Phone #: in Justification) D/L, ODCs or Subs Email:

Justification (attach additional sheet, if necessary):


 For SCAG Use Only 
Contract Amount: $ $
(Only SCAG PM can request this) From To
Justification - attach any supporting documentation, if applicable, with this Form, (i.e., correspondences between Consultant and SCAG PM):

Funding:

Project Number(s) Cost Category Funding Source (FHWA/FTA/TDA) % Fiscal Year Amount

SCAG Project Manager: From: To:

Other (specify and also provide justification ):

Request Approval:
(Only required if the “Effective Date” is requested to be earlier than the date that the Contract Administrator received this Request) Title Print Name Signature Date
Project Manager
Manager
Director
CFO Cindy Giraldo

24-024-C01
76 DocuSign Envelope ID: D0384D38-B426-47F2-848C-255FFC479E36 325
Department: Information Technology
Prepared By: Samantha Robles
Staff Member Presenting: Colin Fernandes,
Executive Director Information Technology
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 8
SUBJECT:

PURCHASE ADDITIONAL MICROSOFT 365 SUBSCRIPTIONS WITH SOFTWAREONE INC.

CITY OF ONTARIO
Agenda Report
February 18, 2025
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council authorize the City Manager, or his designee, to execute the purchase of additional Microsoft 365 subscriptions with SoftwareONE Inc., of Milwaukee, Wisconsin, for $65,805 plus $100,000 in contingency, revising not-to-exceed amount on the agreement to $1,774,456.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT:

The Fiscal Year 2024-25 Adopted Budget includes appropriations from the Information Technology Fund for an annual subscription and support service of Microsoft 365 products. The proposed purchase of 450 Microsoft 365 subscriptions is $65,805, plus a contingency amount of $100,000 for additional licenses to accommodate future staffing needs, for a revised not-to-exceed amount of $1,774,456. If approved, appropriations will be added to the future years’ budgets consistent with the annual adoption process.

BACKGROUND & ANALYSIS:

On January 17, 2023, the City Council approved a three-year Agreement with SoftwareOne Inc. for Microsoft 365 licenses. Microsoft 365 services play a significant role in the operations of the City by allowing document creation, communication, and collaboration. These services include the City's Office Productivity Suite, which consists of services such as Microsoft Outlook/Exchange email, Microsoft Teams, Microsoft Word, Microsoft Excel, and Microsoft PowerPoint.

This Agreement was procured through a cooperative purchasing program which is authorized pursuant to state law. In general conformation with the provisions of Government Code Section 54201 through 54204,Ontario Municipal Code Section 2-6.29 allows for the purchase of supplies and equipment through cooperative purchasing programs, pursuant to California Government Code Section 6502 and City of Ontario Resolution No. 91-141. Cooperative purchasing allows the City to pool its procurement power with other public agencies to obtain lower pricing than otherwise might be possible. The City leveraged the Riverside County Microsoft Enterprise Agreement (#8084445) to secure discounted pricing.
326

The City purchased licenses to support 205 additional users in year two of the Agreement. As the City's digital communication and collaboration with staff, consultants, partners, and members of the public continues to increase, the need to quickly add and assign additional licenses arises.

Staff requests City Council approval for a not-to-exceed contract amount of $1,774,456 to cover the additional licenses from year two of the Agreement and allow for a contingency for licenses that could be purchased in year three of the Agreement.
327
Invoice Address
City of Ontario
303 East B Street
ONTARIO, CA 91764
Shipping Address
City of Ontario
303 East B Street
ONTARIO, CA 91764
License Address
City of Ontario
303 East B Street
ONTARIO, CA 91764
Quote US-QUO-1206420
Start Date Version
Description End Date OS Amount
Pos. No. Manufacturer Disc-Lev. Format Lic. Model Lic. Metrics Qty. Unit Price Sales Tax (USD) EA 57995968
Reservation 2443600379961
Coverage 03.01.2024 - 02.28.2026
10 4ES-00001 ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr 01/13/2025 NON-SPEC/AL Government Monthly Subscription Add Prod Non-Specific
Microsoft LEVEL D SUB IEA ADD G 10 56.85 0.00 568.50
20 AAD-34704 M365 G3 Unified FUSL GCC Sub Per User 01/13/2025 NON-SPEC/AL Government Monthly Subscription Add Prod Non-Specific
Microsoft LEVEL D SUB IEA ADD G 10 758.89 0.00 7,588.90 30 AAD-63092 M365 F3 Unified GCC Sub Per User NON-SPEC/AL Government Monthly Subscription Non-Specific
Microsoft LEVEL D SUB IEA ADD G 10 168.10 0.00 1,681.00 40 NYH-00001 Teams AC with Dial Out US/CA GCC Sub Add-on 01/13/2025 NON-SPEC/AL Monthly Subscription Non-Specific
Microsoft LEVEL D SUB IEA 20 0.00 0.00 0.00
Reservation 2466381281041
City of Ontario
303 East B Street
ONTARIO, CA 91764
Date
Your Reference
Account Manager
Your Contact Person
E-Mail
01/13/2025
Reservations (OG)
Monte Hunter
Gov Us
[email protected]
328
Start Date
Version
Description
End Date
OS
Amount
Pos.

No.

Manufacturer
Disc-Lev.

Format
Lic. Model
Lic. Metrics
Qty.

Unit Price
Sales Tax
(USD)
Coverage 04.01.2024 - 02.28.2026
50 4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
10 54.48

0.00 544.80
60 AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
10 160.39

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Reservation 2474618406790
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70 4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 54.48

0.00 272.40
80 AAD-34704
M365 G3 Unified FUSL GCC Sub Per User
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
10 727.27

0.00 7,272.70
90 AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 160.39

0.00 801.95
100
NYH-00001
Teams AC with Dial Out US/CA GCC Sub Add-on
01/13/2025

NON-SPEC/AL
Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB
IEA
15 0.00

0.00 0.00
Reservations 24123263975658

06.01.2024 - 02.28.2026
110
4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
10 49.74

0.00 497.40
120
AAD-34704
M365 G3 Unified FUSL GCC Sub Per User
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
10 664.03

0.00 6,640.30
130
AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
10 146.44

0.00 1,464.40
140
NYH-00001
Teams AC with Dial Out US/CA GCC Sub Add-on
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NON-SPEC/AL
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Microsoft

LEVEL D
SUB
IEA
10 0.00

0.00 0.00
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329
Start Date
Version
Description
End Date
OS
Amount
Pos.

No.

Manufacturer
Disc-Lev.

Format
Lic. Model
Lic. Metrics
Qty.

Unit Price
Sales Tax
(USD)
Reservation 24137774411842

06.01.2024 - 02.28.2026
150
4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 49.74

0.00 248.70
160
AAD-34704
M365 G3 Unified FUSL GCC Sub Per User
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 664.03

0.00 3,320.15
170
AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 146.44

0.00 732.20
180
NYH-00001
Teams AC with Dial Out US/CA GCC Sub Add-on
01/13/2025

NON-SPEC/AL
Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB
IEA
5 0.00

0.00 0.00
Reservation 24151793655033

06.01.2024 - 02.28.2026
190
4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
20 49.74

0.00 994.80
200
AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
20 146.44

0.00 2,928.80
Reservation 24151105494019

06.01.2024 - 02.28.2026
210
AAD-34704
M365 G3 Unified FUSL GCC Sub Per User
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 664.03

0.00 3,320.15
220
NYH-00001
Teams AC with Dial Out US/CA GCC Sub Add-on
01/13/2025

NON-SPEC/AL
Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB
IEA
5 0.00

0.00 0.00
Reservation 24158869561593
Coverage 07.01.2024 - 02.28.2026
230
4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
30 47.37

0.00 1,421.10
Quote US-QUO-1206420
330
Start Date
Version
Description
End Date
OS
Amount
Pos.

No.

Manufacturer
Disc-Lev.

Format
Lic. Model
Lic. Metrics
Qty.

Unit Price
Sales Tax
(USD)
240
AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
30 139.47

0.00 4,184.10
Reservation 24177534151676
Coverage 07.01.2024 - 02.28.2026
250
4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
30 47.37

0.00 1,421.10
260
AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
30 139.47

0.00 4,184.10
Reservation 24191527838139
Coverage 08.01.2024 - 02.28.2026
270
4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 45.01

0.00 225.05
280
AAD-34704
M365 G3 Unified FUSL GCC Sub Per User
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 600.79

0.00 3,003.95
290
AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 132.50

0.00 662.50
300
NYH-00001
Teams AC with Dial Out US/CA GCC Sub Add-on
01/13/2025

NON-SPEC/AL
Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB
IEA
5 0.00

0.00 0.00
Reservation 24201937734621
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310
4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 45.01

0.00 225.05
320
AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
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Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 132.50

0.00 662.50
330
NYH-00001
Teams AC with Dial Out US/CA GCC Sub Add-on
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NON-SPEC/AL
Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB
IEA
5 0.00

0.00 0.00
Quote US-QUO-1206420
331
Start Date
Version
Description
End Date
OS
Amount
Pos.

No.

Manufacturer
Disc-Lev.

Format
Lic. Model
Lic. Metrics
Qty.

Unit Price
Sales Tax
(USD)
Reservation 24232218035116
Coverage 09.01.2024 - 02.28.2026
340
7VX-00001
Project P5 GCC Sub Per User
01/13/2025

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA GOV
1 756.07

0.00 756.07
Reservation 24248769480875
Coverage 10.01.2024 - 02.28.2026
350
4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
10 40.27

0.00 402.70
360
AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
10 118.55

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370
NYH-00001
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NON-SPEC/AL
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Microsoft

LEVEL D
SUB
IEA
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0.00 0.00
Reservation 24256970244920
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380
VA1-00001
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NON-SPEC/AL
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Non-Specific
Microsoft

LEVEL D
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IEA ADD G
1 610.97

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Reservation 24283139450770
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390
7VX-00001
Project P5 GCC Sub Per User
01/13/2025

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA GOV
3 672.06

0.00 2,016.18
Reservation 24304475034043
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400
4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
10 37.90

0.00 379.00
410
AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
10 111.57

0.00 1,115.70
420
NYH-00001
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01/13/2025

NON-SPEC/AL
Monthly Subscription
Non-Specific
Quote US-QUO-1206420
332
Start Date
Version
Description
End Date
OS
Amount
Pos.

No.

Manufacturer
Disc-Lev.

Format
Lic. Model
Lic. Metrics
Qty.

Unit Price
Sales Tax
(USD)
Microsoft

LEVEL D
SUB
IEA
10 0.00

0.00 0.00
Reservation 24346286163185
Coverage 01.01.2025 - 02.28.2026
430
4ES-00001
ExchOnlnArchGCC ShrdSvr ALNG SubsVL MVL PerUsr
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 33.16

0.00 165.80
440
AAD-34704
M365 G3 Unified FUSL GCC Sub Per User
01/13/2025

NON-SPEC/AL
Government Monthly Subscription Add Prod
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 442.69

0.00 2,213.45
450
AAD-63092
M365 F3 Unified GCC Sub Per User

NON-SPEC/AL
Government Monthly Subscription
Non-Specific
Microsoft

LEVEL D
SUB

IEA ADD G
5 97.63

0.00 488.15
460
NYH-00001
Teams AC with Dial Out US/CA GCC Sub Add-on
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NON-SPEC/AL
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Non-Specific
Microsoft

LEVEL D
SUB
IEA
10 0.00

0.00 0.00
Total USD excl. Tax
65,804.02
Tax

0.00 Total USD incl. Tax
65,804.02

Thank you for your request for quote.

This offer is non-binding. Prices are subject to change if supplier prices or currency values fluctuate.

Unless customer & SoftwareONE have executed a reseller agreement, customer hereby agrees that by placing an order with SoftwareONE customer will be bound by SoftwareONE ’
s terms &
conditions, located at www.softwareone.com, and the placement of your order represents your agreement thereto. If Customer is required by law to withhold any tax from amount payable, the amount payable will be increased so that after making all required withholdings, SoftwareONE receives equal to the amount it would have received had no such withholdings been made.

Payment Terms
30 Days net
Shipping Method
Electronic Software Delivery
Quote valid until
01/31/2025

Prices are based on 30 Days net, FOB SoftwareONE. Shipping and Handling and applicable Sales Tax are additional. Once SoftwareONE places an order is placed with a Licensor, Customer
’
s order will be binding and non-cancelable, except as otherwise provided by the Licensor ’
s Return Policies.

CONFIDENTIAL INFORMATION: This Quote, and any attachment is intended only for the person or entity to which it is addressed, and contains confidential and/or privileged information. Any review, retransmission, dissemination or other use of this information to persons or entities other than the intended recipient is prohibited.

View or place within PyraCloud: https://v1.client.softwareone.com/portal/Quotes/DocumentDetail/US/US-QUO-1206420 Quote US-QUO-1206420
333
Department: Information Technology
Prepared By: Samantha Robles
Staff Member Presenting: Colin Fernandes,
Executive Director Information Technology
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 9
SUBJECT:

AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH CALTEK TECHNOLOGIES, INC., FOR LOW-VOLTAGE CABLING AND EQUIPMENT

INSTALLATION

CITY OF ONTARIO
Agenda Report
February 18, 2025
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council take the following actions:

A
.

Authorize the City Manager, or designee, to execute Amendment No. 7 to the Professional Services with Caltek Technologies, Inc., of Ontario, CA, for low-voltage cabling, extending the terms for three years and increase the authorized amount by $300,000 for a total contract not-to-exceed amount of $475,957.

B
.

Authorize the City Manager, or designee, to execute Amendment No. 7 to the Professional Services with Caltek Technologies, Inc., of Ontario, CA, for low-voltage cabling for the Animal Resource Center of the Inland Empire’s (ARC) temporary animal shelter, increasing the authorized amount by $71,276 for a total contract not-to-exceed amount of $547,233.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT:

The Fiscal Year 2024-25 Adopted Budget includes appropriations from the Information Technology Fund for low-voltage cabling and device installation. The Fiscal Year 2024- 25 Adopted Budget also includes appropriations from the ARC fund. The proposed Amendment No. 7 to the Professional Services Agreement increases the authorized contract amount by $371,276, which includes $300,000 for low-voltage cabling, $61,979 for the ARC project, and a 15% contingency of $9,297, for a total contract amount not to exceed $547,233, and an additional three- year term. The fixed billing rates specified in the current Agreement will determine the amount charged for service and reflect the actual service provided. If approved, additional appropriations will be included in future year budgets consistent with the annual adoption process.

BACKGROUND & ANALYSIS:

On December 5, 2023, the City Council approved an Agreement with CalTek Technologies Inc. for low-voltage cabling and related services. Low voltage cabling is wiring used for technology such as computer networks, phone lines, security cameras, and TV connections, carrying less power than regular electrical wires. CalTek Technologies, Inc. has 334
completed many projects for various City departments, including the Museum secure storage project, the Conservation Park re-cabling project, and the Ontario Municipal Utilities Company modular trailer project, and is familiar with the cabling infrastructure, standards utilized, and secure area access protocols across the City. This experience ensures work is completed effectively and efficiently to meet the City’s needs.

Given the time-sensitive nature of ARC’s development, leveraging CalTek’s expertise ensures seamless integration with existing systems and minimizes delays. Their proven ability to complete critical City projects—including secure storage, re-cabling efforts, and modular installations— demonstrates their capacity to efficiently support ARC’s operational needs while maintaining consistency with broader City infrastructure. Costs related to the ARC will be funded by the Joint Powers Authority.

The continuous growth and expansion throughout the City often require low-voltage cabling work to be completed. Additionally, the ability to have existing low voltage cable repairs completed in a timely manner is crucial to the operations of the City. Staff requests City Council approval for a not- to-exceed amount of $547,233 and an additional three-year term, for a total contract of six years. 335
46700.00100\33287662.1