AFMS Contract #8153 - Agreement — Santa Monica City Council, May 10, 2022

City Agreement No. 8/53 (CCS)

AGREEMENT FOR PURCHASE OF

SOFTWARE LICENSE, EQUIPMENT,

AND SERVICES AGREEMENT

BY AND BETWEEN

THE CITY OF SANTA MONICA
AND

SIEMENS TRANSPORTATION SYSTEMS, INC,

TABLE OF CONTENTS
Page

1. RECITALS AND ORDER OF PRECEDENCE... 1

2. SOFTWARE LICENSE, EQUIPMENT AND SERVICES 3

2.1 Description of Software, Equipment and Services. 3

2.1.1 Fit for Intended Purpose. 3

2.2 Software License...

2.2.1 License Grant.

2.2.2 Ownership of Software..

2.2.3 Restrictions on Use....

2.2.4 Source Code in Third Party Escrow..

2.2.5 Manuals.

2.3 Services.

2.3.1 Services

2.3.2 Standard of Care...

2.3.3 Telephone Support 4

2.3.4 City Review 5

2.3.5 Removal. 5

2.4 Materials, Supplies, Equipment, and Goods..

2.4.1 New Parts 5

2.4.2 Repairs, Renewals, Changes.

2.4.3 Manufacturer Guarantees..

2.4.4 Parts Availability Guaranty..

2.4.5 Interchangeability.

2.4.6 Notice of Delivery.

2.4.7 Liability..

2.4.8 Inspection and Testing of Materials

2.4.9 Project Delivery Procedure. 6

2.4.10 Approval by the City.... 7

2.4.11 Defective or Damaged Work. 7

2.4.12 Damages....

2.4.13 Compliance with Laws and Regulations..

2.4.14 Warranty of Title.....

2.4.15 Predelivery Tests.

2.4.16 Assumption for Risk of Loss

2.5 Performance of Obligations..

2.5.1 Manner of Performance ..

2.5.2 Materials, Services and Facilities

2.5.3 Surveys, Permits and Regulations.

2.5.4 Vendor's Obligations...

2.5.5 Vendor's Project Manager......

2.5.7 Pre-Implementation Conference

2.5.8 Periodic Implementation Conferences.

2.5.9 Effect of Extensions of Time...

2.6 Survivability.

3. INSTALLATION

3.1 Installation Schedule. 10

3.2 Installation Criteria. 10

3.2.1 Final System Acceptance. 10

3.3 Repairs After Nonacceptance 10

3.3.1 Repairs by Vendor.. 10

3.3.2 Vendor's Repairs. 11

3.3.3 Obligations Until Final System Acceptance

3.4 Unavoidable Delays. 11

3.5 Notification of Vendor Delay ... 12

3.5.1 Weather Conditions... 12
RECORDS. 12

4.1 Manuals... 12

4.2 Audit and Inspection of Records.. 12
vi FEES AND PAYMENTS. 14

5.1 Total Contract Amount. 14

5.2 Payment to Vendor.. 15

5.3 Withholding.. 16

5.4 Milestone Payments. 17

5.5 Acceptance of Final Payment as Release. 17

5.6 Performance and/or Payment Bonds 17

5.7 Additional or Substitute Bond 17

6. NON-DISCLOSURE 17

6.1 Confidentiality of Software: City's Obligations. 18

6.2 City's Rights. 18

6.3 Confidentiality of City Data. 18

6.4 Survival of Obligations.. 18
WARRANTIES and maintenance... 18

7.1 Warranty.. 19

7.2 Services, Hardware, & Software.. 19

7.2.1 Services. 19

7.2.2 Hardware... 19

7.2.3 Software. 20

7.2.4 Documentation Delivery.. 20

7.2.5 Latent Defect Warranty. 20

7.2.6 Warranty Period 2 1

7.2.7 Warranty Components.. 21

7.2.8 Warranty Provisions Resulting from System Relocation(s) 21

7.3 Documentation.. 2 2

7.4 Maintenance.. 22

7.5 Modifications/Enhancements.. 2 2

7.6 Updates/Upgrades/Replacements 22

7.7 Responses During Warranty.. 2 2

7.8 Survival of Section. 23

7.9 Non-Waiver of Warranties.... 23

7.10 Repair During Warranty .. 23

7.11 Repairs by City. .. 23

7.11.1 Parts Used .. 23

7.11.2 Vendor Supplied Parts... ...23

7.11.3 Return of Defective Components. ... 23

7.11.4 Reimbursement for Labor.... .. 23

7.12 Time for Completion and Liquidated Damages. .. 23
INSURANCE. 25

8.1 Consultant's Insurance.... 25

8.2 Minimum Limits of Insurance. 25

8.3 Minimum Scope of Insurance. 26

8.4 Deductibles and Self-Insured Retentions.. ... 26

8.5 Other Insurance Provisions.. .. 26

8.6 General Liability, Workers' Compensation and Employer's Liability... ..27

8.7 All Coverages.. .. 27

8.8 Acceptability of Insurers.. 27

8.9 Verification of Coverage.. 27

8.10 Subconsultants 27

9. INDEMNIFICATION 28

9.1 Indemnification 28

9.2 Receipt of Notice 28

9.3 Patent and Copyright Claims... 28

10. TERM AND TERMINATION... 29

10.1 Commencement of License Term. 29

10.2 Termination of Software License. 29

10.3 Software After Termination. 29

10.4 Termination for Convenience. 29

10.5 Termination for Default.... 30

10.6 Limitation of Liability. 31

11. ASSIGNMENT. 32.

12. GOVERNING LAW 32

13. NOTICES 32

14. DISPUTE RESOLUTION PROCEDURE. 33

14.1 Notice of Dispute....... 33

14.2 Negotiation Between Executives... 33

14.3 City's or City Manager's Decision.. 33

14.4 Alternative Disputes Resolution... 34

15. COSTS OF LITIGATION. 34

16. INTEGRATED AGREEMENT. 34

16.1 Integrated Agreement. 34

16.2 Modifications. 34

16.3 Modification Procedure. ... 35

17. PERMITS AND LICENSES. 35

18. COMPLIANCE WITH LAW. 35

18.1 Compliance with Laws and Regulations.. 35

18.2 Program Fraud and False or Fraudulent Statements and Related Actions... 35 iii

18.3 Incorporation of FTA Terms. .. 36
Changes in Federal Laws and Regulations... ... 36

18.4 18.5 Energy Conservation... ... 36

18.6 Recycled Products.... ... 36

18.7 Civil Rights: Nondiscrimination..... ..36

18.8 Access Requirements for Individuals with Disabilities... .. 37

18.9 Equal Employment Opportunity.. ...37

18.9.1 Race, Color, Creed, National Origin, Sex. ... 37

18.9.2 Age. ... 38

18.9.3 Disabilities ... 38

19. AUDIT REQUIREMENTS ..38

19.1 Certifications Required ... 39

19.2 Buy America Requirements.. ... 39

19.3 Solicitation Specification Requirements. ... 39

20. SPECIFICATION AND OFFER OMISSIONS. 39
MISCELLANEOUS PROVISIONS.. 39

21. 21.1 Omitted. 39

21.2 Mutual Responsibility of Vendors.. ...39

21.3 Subcontracting .. 39

21.4 Use of Premises and Removal of Debris... .. 40

21.5 Conflicting Conditions.. ... 41

21.6 Interpretation of Specifications... ... 41

21.7 Independent Parties ...41

22. EXHIBITS. ... 41
iv

AGREEMENT FOR

PURCHASE OF SOFTWARE LICENSE,

EQUIPMENT, AND SERVICES
This Agreement for Purchase of Software License, Equipment and Services ("'Agreement") entered into on May 30 , 2003 ("Execution Date"), by and between SIEMENS TRANSPORTATION SYSTEMS, INC, a Delaware corporation, located at 5265 Rockwell Drive NE, Cedar Rapids, IA 52402 ("Vendor," Consultant" or "Licensor") and CITY OF SANTA MONICA, a California municipal corporation ("City,") is made with reference to the following:

RECITALS:

City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.

B. City seeks to purchase a perpetual license for software and certain materials, supplies equipment and goods for a fleet management system for use by the City's Big Blue Bus pursuant to the City's Request for Proposal Addendum III ("RFP"), which is attached hereto as Exhibit 1. In response to the City's RFP, Vendor submitted its Proposal for the Advanced Fleet Management System ("Proposal"), which is attached hereto as Exhibit 2.

C. Vendor is a Delaware corporation that markets and supports the Advanced Fleet.

Maintenance System ("AFMS" or "Software" or "System"). AFMS applies state-of-the art technologies to provide more efficient and effective management of transit systems by improving schedule adherence, operational efficiency, quality of service, reducing travel times, operating, training and maintenance costs, improving driver and passenger safety, providing travelers with real-time transit and traffic information, and providing faster and more accurate reporting of information required under Federal Transit Administration guidelines. AFMS includes, in part, bus radios, Global Positioning System locators, Automatic Vehicle Location System, Computer Aided Dispatch system, Automatic Passenger Counters, scheduling and trip planning software, and an interactive Voice Response system.

D. City and Vendor desire to enter into this Agreement for the license of the AFMS, related hardware, related services for the installation, training and support of the AFMS, and for maintenance of the AFMS, upon the terms and conditions set forth below.

NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:

RECITALS AND ORDER OF PRECEDENCE.

1.1 All of the above recitals are hereby incorporated herein by reference.

1.2 In the event of a conflict between or among the provisions of this Agreement or the Exhibits to the Agreement, such conflict shall be resolved in the following - 1-
FATTYMUNIcontractEMBIG BLUE BUSISiemensIFINAL.DOC
order of precedence (the first order of precedence under clause (i) being the highest):
(i) The Agreement;
(ii) Vendor's Final Negotiated Best And Final Offer Pricing ("Final BAFO") dated April 15, 2003 attached hereto as Exhibit 3;
(iii) Deliverables Lists attached hereto as Exhibits 4(a) through 4(c) consisting of: (a) Trapeze Software Pricing dated September 19, 2002; (b) Deliverables List Final Negotiation BAFO List dated February 18, 2003,; and (c) Milestone Billing Schedule dated May 5, 2003;
(iv) Vendor proposal documentation attached as Exhibits 5(a) through 5(i) consisting of: (a) Vendor's Responses to Additional Information Request dated May 29, 2002; (b) Vendor's Responses to City dated March 22, 2002; (c) Vendor's Responses to City dated April 29, 2002; (d) Vendor's Responses to Action Items dated January 6, 2003; (e) Radio Site Design •
dated March 3, 2003; (f) Antenna Site Deliverables List dated March 26, 2003; (g) Clarification of ILG comments for testing methodology for data communications dated March 26, 2003; (h) Vendor's Staffing Proposal; and (i) GPRS Solution and Revised Pricing for Santa Monica Big Blue Bus dated April 10, 2003;
(v) Vendor Proposal dated February 11, 2002 attached as Exhibit 2; (vi) Vendor's Technical Presentation Materials attached hereto as Exhibits 6(a) through 6(d) consisting of: (a) Informational Brief for Senior Transit Management; (b) Advanced Fleet Management System: Presentation Material; (c) TransitMaster: TM Annunciator Studio dated March 1, 2002; (d) TransitMaster: TMSurvey Tool dated January 11, 2002; and (e) Transit Master: TM Route Manger dated January 11, 2002; (vii) RFP dated October 29, 2001 consisting of Addendum Ill attached hereto as Exhibit 1; and
(vili) Any other Vendor documentation provided to the City as part of the Proposal for the System prior to the Execution date of this Agreement.

1.3 Coney Contrare and Exhibits hereto shall be refered to

1.4 Definition of Day. All reference in this Agreement to "day" or "days" shall refer to calendar days unless otherwise specified.
- 2-
FATTYMUNcontractEMUBIG BLUE BUSSiemens FINAL. DOC

2. SOFTWARE LICENSE, EQUIPMENT AND SERVICES.

2.1 Description of Software, Equipment and Services.

Vendor shall provide the City with the following: (1) Software License; (2) installation of the Software identified in the Agreement and Exhibits hereto; (3) delivery, installation and maintenance of equipment and goods identified in the Agreement and Exhibits hereto; (4) on-site training for City staff; (5) user manuals; (6) telephone support; and (7) other services described in this Agreement and Exhibits thereto. All of the above shall be collectively referred to

2.1.1 Fit for Intended Purpose. Vendor acknowledges that the City is relying on Vendor's skill and judgment to furnish suitable goods and warrants that the Software and goods supplied hereunder will be fit for the particular purpose of the City as specifically set forth in the Contract Documents.

2.2 Software License

2.2.1 License Grant. Vendor grants to City a royalty-free, non-exclusive, perpetual non-transferable license to use the software consisting of the AFMS System ("Software"), as more particularly described in the Contract Documents.

2.2.2 Ownership of Software. City understands and agrees that title to and ownership of the Software is not conveyed or transferred to City by this Agreement. Except for the limited rights granted herein, ail rights to the - 3-
FATTYMUN/contract EMBIG BLUE BUSSiemens FINAL. DOC

2.2.3 Restrictions on Use. City shall not copy the Software or allow its use by 3 thers without the written permission of Vendor except for Citv' roduction, backup, archival, and in-house disaster recovery purposes City will reproduce and include the copyright, trade secret or other restrictive and proprietary legends from the original on all copies. All copies will be subject to the terms of this Agreement. The Software may be used only by City, and not for the benefit of any third party. City shall not (1) reverse engineer any part of the Software; (2) distribute, sell or otherwise transfer any part of the Software; or (3) remove the patent, copyright, trade secret or other proprietary protection legenas or notices which appear on or in the Software.

2.2.4 Source Code in Third Party Escrow. Vendor agrees to deposit Vendor- vritten PC based application software source code in an existing thir barty escrow account as set forth in the Escrow Agreement include within Exhibit 5(d) to enable the City to continue basic operation and maintenance of the Work, in the event the Vendor fails to continue support of the Work under provisions of this Agreement and does not provide tor such support by a third party. In such event, the City agrees to maintain the confidentiality of the source code. Vendor will maintain the installed and accepted version of the Software, plus, will include updates once a year in this escrow account for a period of ten (10) years from Final System Acceptance. Vendor's design and manufacturing documentation provided to the City shall be for its sole use in regard to the equipmen brocured under this Agreement and for no other purpose.

2.2.5 Manuals. Vendor will provide the City with online help screens xplaining the operation of the System and its components. Vendor agree hat the City will have the right to print as many copies of the help screen as may be required for internal City purposes. The help screens will describe the operation of the System. Detailed procedures regarding the City's use of the System will be the responsibility of the City.

2.3 Services.

2.3.1 Services. Vendor shall provide all of the services more specifically set forth in Exhibits 1 through 7, including, but not limited to, training and support of the System.

2.3.2 Standard of Care. All of the services provided hereunder shall be provided in a manner commensurate with the highest standard of care.

2.3.3 Telephone Support. Vendor shall provide unlimited telephone support consisting of telephone consultation, problem resolution and dial-up support to the City's system. Vendor shall provide such telephone support 24 hours per day, seven days a week, except for major holidays, - 4-
FATTYMUN contrad EMBIG BLUE BUSSiemens FINAL DOC
for a one year period from Successful Installation during the warranty and 3 maintenance periods.

2.3.4 City Review. City shall review qualifications and approve or reasonably disapprove the key personnel to be assigned to perform the services under this Agreement. Vendor shall be required to provide additional functiona and technical resources as required to provide the services required eplacement of any listed individuals will be made with individuals of comparable or higher experience, and that the composition of Vendor's maintaines on a mantratot pasiled to time greet til of services

2.3.5 Removal. The City may request at any time the removal of any individual performing services if the City: (i) reasonably believes that such individual is not qualified to perform the services or does not meet ) appropriate professional standards; and (i) previously provided the Vendor with written notice of the problem and a reasonable opportunity to

2.4 Materials, Supplies, Equipment, and Goods.

City shall purchase, and the Vendor shall provide, all of the materials, supplies, equipment and goods listed in the Contract Documents.

2.4.1 New Parts. All parts shall be new and in no case will used, reconditioned, or obsolete parts be accepted.
• 2.4.2 Repairs, Renewals, Changes. Vendor acknowledges that all necessary repairs, renewals, changes or modifications in the equipment due to defective materials and workmanship, occurring anytime from contract award to a date twelve (12) months after commencement of the warranty period for the effected warranty component, shall be promptly corrected by the Vendor at its expense, including labor and materials, with minimum inconvenience to the City.

2.4.3 Manufacturer Guarantees. Where specific equipment items are guaranteed by the manufacturer for periods exceeding those shown above, the longer manufacturer warranty shall apply.
- 5-
F:LATTYUNcontract EMBIG BLUE BUSSiemens\FINAL DOC

2.4.4 Parts Availability Guaranty. The Vendor hereby guarantees to make 3 available for purchase, within reasonable periods of time, the spare parts, software and all equipment necessary to maintain and repair the System supplied under this Agreement for a period of at least fifteen (15) years after the date of Final System Acceptance. Parts shall be interchangeable with the original equipment and be manufactured in accordance with the Vendor's established quality assurance provisions. Prices shall not exceed greater than the fair market price.

2.4.5 Interchangeability. Unless otherwise agreed, all units and components procured under this Agreement, whether provided by suppliers or manufactured by the Vendor, shall be duplicates in design, manufacture, and installation to assure interchangeability among buses in this procurement. This interchangeability shall extend to the individual components as well as to their locations in the buses.

2.4.6 Notice of Delivery. Upon completion of the delivery of the goods, or of performance of the services, the Vendor shall give notice to the City in vriting that all equipment and materals have been dellvered as specitiec nd that all specifications and Agreement terms have been met, includin hose required prior to acceptance outlined in the technical specifications Acceptance testing will be conducted in accordance with the acceptance test procedure.

2.4.7 Liability. Neither the final certificate of payment nor any provision in the contract documents nor partial or entire use of the systems by the City shall constitute an acceptance of Work not done in accordance with the contract documents or relieve the Vendor of liability in respect to any express warranties or responsibility outlined herein.

2.4.8 Inspection and Testing of Materials. All material and equipment used in the construction of the project shall be subject to adequate inspection and testing in accordance with accepted standards. The City reserves the right o employ an independent laboratory or inspection agency should the Cit o desire. Such independent laboratory or inspection agency shall b selected by the City. The City will pay for all laboratory and/or inspection service directly, and not as a part of the Agreement, unless otherwise specified.

2.4.9 Project Delivery Procedure. Delivery shall be determined by signed receipt of the City's designated agents) at the following point of delivery and may be preceded by a cursory inspection.

Big Blue Bus
612 Colorado Ave.

Santa Monica, CA 90401-3324
- 6-
F:ATTYUNTicontractEMUBIG BLUE BUS Siemens\FINAL.DOC

2.4.10 Approval by the City. The City shall have the right, but not the bligation, to inspect all work and to accept or reject such Work. Th ity, through its designated Project Manager, shall have the full power to reject or condemn any materials furnished or work performed under the Agreement which do not conform to the requirements set forth in the Agreement. Final System Acceptance shall be in accordance with the Acceptance Test Plan.

2.4.11 Defective or Damaged Work. Any material or equipment damaged or defective at the time of delivery or installation shall be repaired, replaced or corrected by the Vendor hereunder without additional cost to the City.

If the Vendor shall fail to comply promptly with any order of the City to repair, replace or correct damaged or defective work, then the City shall, there or from any coco the find, have he cute die to the or he cost Nothing in this section shall limit or restrict the provisions of the warranties as set forth in these Agreement conditions.

2.4.12 Damages. All loss or damage arising from any act or omission on the art of the Vendor or any agent or person employed by the Vendor, sha e sustained by the Vendor. Vendor shall be liable for risk of loss unt equipment is delivered to the Authority.

2.4.13 Compliance with Laws and Regulations. All materials and supplies and/or construction furnished pursuant to this Agreement shall be in compliance with the laws and regulations of the State of California and the United States of America. Vendor shall, if requested by the City, supply certification and evidence of such compliance.

2.4.14 Warranty of Title. Vendor shall warrant to the City, its successors and ssigns, that the title to the material, supplies or equipment covered by th greement, when delivered to the City or to its successors or assigns, sha be free all liens, security interests, charges and encumbrances.

2.4.15 Predelivery Tests. The pre-delivery tests and inspections shall be performed at or near the Vendor's plant and shall be performed in accordance with the procedures defined in the Vendor's established Quality Assurance Provisions, and may be witnessed by the City. When the equipment passes these tests and inspections, the City shall authorize release of the equipment for delivery, installation, configuration and on- site acceptance testing.

2.4.16 Assumption for Risk of Loss. The City shall assume risk of loss of the project on delivery, as defined in "Project Delivery Procedure" if lelivered by common carrier or driveway, or on release to the City's irivers at the Vendor's plant. Prior to this delivery or release, the Vendo shall have risk of loss of the project, including any damages sustained - 7-
FATTYIMUN contractEM BIG BLUE BUS!Siemens FINAL. DOC
during the common carrier or driveaway operation regardless of the status 3 of title or any payments related to the project. Drivers shall keep a maintenance log enroute and it shall be delivered to the City with the project.

2.5 Performance of Obligations.

2.5.1 Manner of Performance. The Vendor shall at all times safely guard the City s property from injury or loss in connection with this Agreement.

Additionally, the Vendor shall at all times safely guard and protect its own work, and that of adjacent property, from damage. The Vendor shall make space and electrical connection available for a Vendor supplied trailer.

2.5.2 Materials, Services and Facilities. It is understood that, except as complete and deliver the work within the specified time. In the event that the Vendor requires the City staff assistance, in excess of that which would normally be expected of the City's personnel, the Vendor shall, as mutually agreed by the parties, reimburse the City for the costs involved.

Any work necessary to be performed after the regular hours, on Sundays or legal holidays, shall be performed without additional expense to the City. The City shall provide the existing poles, property rights, right of way approvals, required electrical/architectural drawings, and 120VAC power (within 10 feet of the OnStreet sign) for the Wayside Signs set forth in the Contract Documents; however, Vendor shall be responsible tor nstalling the Wayside Signs in a manner approved by the City. Sio ocations are to be determined at the sole discretion of the Cit

2.5.3 Surveys, Permits and Regulations. The Vendor shall procure and pay for all permits, licenses and approvals necessary pursuant to this Agreement on behalf of the City. The Vendor shall comply with all laws, ordinances, rules, orders and regulations relating to the performance of the work, the protection of adjacent property, and the maintenance of passageways, guard fences or other protective facilities. The Vendor shall procure and pay for all permits, licenses, and approvals necessary pursuant to this Agreement except those related to the installation of Wayside Signs on behalf of the City.

2.5.4 Vendor's Obligations. The Vendor shall perform all Work in a good and workmanlike manner and furnish all supplies and materials, machinery, - 8-
FATTYUNcontraclEMBIG BLUE BUSISiemensFINAL.DOC
equipment, facilities and means, necessary or proper to perform and complete all the Work required by this Agreement, within the time herein specified, in accordance with the provisions of this Agreement and in accordance with the directions of the City as given from time to time during the progress of the work.

2.5.5 Vendor's Project Manager. At the site of the work, the Vendor shall designate a project manager, acceptable to the City, who shall have tull authority to act for the Vendor.

2.5.6 Progress Schedule. The Vendor shall submit to the City a progress schedule showing the projected stages of completion for each month of work within the Agreement time period. The progress chart shall show clearly, in numerical percentages, the estimated percentage of work to be completed for each month, and the estimated beginning and completion date of each milestone.

2.5.7 Pre-Implementation Conference. Prior to the start of implementation, the Vendor and its approved subcontractors shall attend a Pre-Implementation Conference with representatives of the City. The Conference will serve to acquaint the participants with the general plan of contract administration and requirements under which the implementation is to proceed.

2.5.8 Periodic Implementation Conferences. The Vendor and its approved ) subcontractors shall attend periodic implementation conferences called by the City, for the purpose of reviewing and expediting implementation progress, coordination activities of mutual concern, and otherwise resolving problems. The Vendor may also request such a meeting.

2.5.9 Effect of Extensions of Time. Granting of or acceptance of extensions of time to complete the work or furnish the labor, supplies, materials, or equipment, or any one of the aforementioned, will not operate as a release to the Vendor or the Surety on Vendor's faithful performance bond from

2.6 Survivability. Vendor's obligations under this Agreement shall survive the nominal expiration or discharge of other Agreement obligations and City may obtain any remedy provided for under this Agreement to enforce the obligations of Vendor that survive the manufacturing, warranty, and final payment periods.

INSTALLATION.
- 9-
FATTYMUN contrad EMIBIG BLUE BUSSieensiFINAL.DOC

3.1 Installation Schedule. Vendor shall install the System within 18 months 3 commencing from the Notice To Proceed. Upon the execution of this Agreement, the parties shall mutually agree to an installation schedule in accordance with the 18 month timeframe and shall modify this Agreement to incorporate the installation schedule as an Exhibit to this Agreement.

3.2 Installation Criteria. Installation shall be complete upon Successful Installation of all hardware, successful configuration of Software, and Software installation on server and client workstations, data conversion, testing, user training, and execution of the test data in performing all of the functions required for installation and upon acceptance by the City ("Successful Installation"). The System must provide instant response to commands under peak usage from a workstation connected directly to the network. For acceptance testing no command should require an operator to wait for more than seven seconds during peak load periods. Functions such as data history queries must not have longer response times than is reasonable to expect relative to the size and complexity of the queries. City will complete its acceptance tests within thirty (30) days upon completion of installation of the system by Vendor and upon acceptance, the •

3.2.1 Final System Acceptance. Acceptance testing will commence after Successful Installation. After the System passes the tests set forth in Section 31 and the Acceptance Test Plan, City will notify Vendor in writing of City's acceptance of the System ("Final System Acceptance").

The period of acceptance testing shall not exceed 45 days. In the event that Final System Acceptance is unreasonably withheld by the City due to no fault of the Vendor, partial acceptance may occur if the City places a portion of the equipment and/or System into revenue service and thus receives full productive use from such equipment and/or System.

Nothing in this Subsection 3.2.1 shall excuse the Vendor from; (i) providing the remaining equipment and/or System, and (i) Final System Acceptance.

3.3 Repairs After Nonacceptance. The Vendor, or its designated representative, shall perform all required repairs and/or replacements after nonacceptance. Any such repairs and/or replacements which are due to damage caused by the City or the City's negligence during testing shall be paid for by the City.

3.3.1 Repairs by Vendor. After nonacceptance of the System, the Vendor must begin work within 5 (five) working days after receiving written notification from the City of failure of acceptance tests. The City shall make the System available to complete repairs and/or replacements in a ) timely manner consistent with the Vendor repair and/or replacement schedule.
- 10 -
F:LATTYMUNIcontractEMBIG BLUE BUSLSiemensiFINAL.DOC

3.3.2 Vendor's Repairs. The Vendor shall provide, at its own expense, all spare 3 parts, tools, and space required to complete the repairs, with the exception of damages caused by the City's negligence. The Vendor may be required to remove the equipment from the City's property while repairs are being effected. If equipment is removed from the City's property, repair and/or replacement procedures must be diligently pursued by the Vendor's representatives, and the Vendor shall assume risk of loss while the equipment is under its control.

3.3.3 Obligations Until Final System Acceptance. Until Final System Acceptance has been issued by the City, all repairs and/or replacements to the Vendor-provided System shall be accomplished by the Vendor.

3.4 Unavoidable Delays. If the Vendor is delayed at any time during the progress of the Work by the neglect or failure of the City or by a cause described below, then they mefect to the toils wind coefied delivery dates shall be extended by the The cause of the delay arises after the notice of award and neither was nor could have been anticipated by the Vendor by reasonable investigation before such award;
The Vendor demonstrates that the completion of the Work and/or effected delivery(s) will be actually and necessarily delayed; The effect of such cause cannot be avoided or mitigated by the exercise of all reasonable precautions, efforts and measures whether before or after the occurrence of the cause of delay; and •4. The Vendor makes written request and provides other information to the City as described in "Notification of Vendor Delay." A delay meeting all the conditions of this section shall be deemed an excusable delay. Any concurrent delay which does not constitute an excusable delay shall not be the sole basis for denying a request hereunder. In the absence of a clear controlling cause of delay, the delays will be apportioned between the parties if apportionment is reasonably possible. None of the above shall relieve the Vendor of any liability for the payment of any liquidated damages owing from a failure to complete the Work by the time for completion that the Vendor is required to pay pursuant to "Liquidated Damages for delays occurring prior to, or subsequent to the occurrence of an excusable delay.
request for an excusable delay. Notwithstanding the above, the City will not - 11-
FLATTYUNTicontracEMBIG BLUE BUSSiemensiFINAL. DOC
rescind or shorten any extension previously granted if the Vendor acted in reliance upon the granting of such extension and such extension was based on information which, although later found to have been erroneous, was submitted in good faith by the Vendor.

3.5 Notification of Vendor Delay. Notwithstanding "Vendor's Delay", no extension or adjustment of time shall be granted unless (1) written notice of the delay is filed with the City within 14 (fourteen) calendar days after the commencement of the delay and (2) a written application therefore, stating in reasonable detail the causes, the effect to date and the probable future effect on the performance of the Vendor under the Agreement, and the portion or portions of the Work effected, is filed by the Vendor with the City within 30 (thirty) calendar days after the commencement of the delay. No such extension or adjustment shall be deemed a waiver of the rights of either party under this Agreement. The City shall make its determination within 30 (thirty) calendar days after receipt of the application.

3.5.1 Weather Conditions. In the event of temporary suspension of work, or • during inclement weather, or whenever the City shall direct, the Vendor will protect carefully his and their work and materials against damage or injury from the weather. If, in the opinion of the City, any work or materials shall have been damaged or injured by reason of failure on the part of the Vendor or any of his Subcontractors to so protect the work, such materials shall be removed and replaced at the expense of the Vendor.

4. RECORDS.

4.1 Manuals. The Vendor shall provide manuals as detailed in the technical specifications as part of this Agreement. The Vendor shall keep such manuals available for a period of five years after the date of acceptance of the system procured under this Agreement. The Vendor shall also exert its best efforts to keep manuals up-to-date and available for purchase by the City for a period of 15 (fifteen) years from final system acceptance. The supplied manuals shall incorporate all equipment covered by this Agreement.

4.2 Audit and Inspection of Records. In accordance with 49 C.F.R. § 18.36(i), 49 C.F.R. § 19.48(d), and 49 U.S.C. § 5325(a), the City is the FTA Recipient or a subgrantee of the FTA Recipient, thus the Vendor agrees to provide the City, FTA, the Comptroller General of the United States, the Secretary of the U.S.

Department of Transportation, or any of their duly authorized representatives access, following written notice to the Vendor, to any books documents, papers, and records of the Vendor which are directly pertinent to this Agreement for the purpose of making audits, examinations, excerpts, and transcriptions in - 12 -
F:ATTYUNcontract EM\BIG BLUE BUSSiemensIFINAL DOC

4.2.1. The Vendor shall maintain and the City, the U.S. Department of Transportation (if applicable), or the representatives thereof shall have the right to examine all books, records, documents, and other cost and pricing data related to the Contract price, unless such pricing is based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the public, or prices set by law or regulation, or combinations thereof. Data related to the negotiation or performance of the Agreement shall be made available for the purpose of evaluating the accuracy, completeness, and currency of the cost or pricing data. The right of examination shall extend to all documents necessary for adequate evaluation of the cost or pricing data, along with the omputations and projections used therein, including review of accountin rinciples and practices that reflect properly all direct and indirect cost anticipated for the performance of the Agreement.

4.2.2 For Agreement modifications, the City, the U.S. Department of Transportation (if applicable), or their representatives shall have the right to examine all books, records, documents, and other cost and pricing data directly pertinent to a Agreement modification, unless such pricing is based on adequate price competition, established catalog or market prices of commercial items sold in substantial quantities to the public, or prices set by law or regulation, or combinations thereof Data related to the negotiation or performance of the Agreement modification or change ) order shall be made available for the purpose of evaluating the accuracy, completeness, and currency of the cost or pricing data. The right of examination shall extend to all documents necessary for adequate evaluation of the cost or pricing data, along with the computations and projections used therein, either before or after execution of the Agreement modification or change order for the purpose of conducting a cost analysis.

If an examination made after execution of the Agreement moditication or change order reveals inaccurate, incomplete, or out-of-date data, the aristment red antique the resentin nai and or hans order re nay be agreed to by the parties.

4.2.3 The materials described in subsection 4.2.1, 4.2.2, and 4.2.3 above shall be )
- 13 -
FATTYUN/contractEMBIG BLUE BUSLSiemensIFINAL.DOC

4.2.4 The City and its representative and any other parties authorized under this clause shall employ sound business practices to protect the confidence of the data specified under this clause, for which the Vendor provides access, against disclosure of such information and material to third parties except as permitted by the Agreement. The Vendor shall be responsible for ensuring that any confidential data bears appropriate notices relating to its confidential character.

4.2.5 The requirements of this section are in addition to other audit, inspection, and record-keeping provisions specified elsewhere in the Contract Documents.

4.2.6 Each and every final report, work product, map, record and other document reproduced, prepared or caused to be prepared by Vendor pursuant to or in connection with this Agreement and delivered to the City shall be the exclusive property of City, including the originals of all notes, memoranda, sketches, letters and documents developed and received by Vendor, except as set forth below.

4.2.7 Vendor shall furnish reports concerning the status of services required under this Agreement on a weekly basis and upon City's request. No report, work product, map, record or other document given to or prepared or assembled by Vendor pursuant to this Agreement shall be made available to any individual or organization by Vendor without prior written approval by City. This Section shall apply to all employees, agents, representatives, and subconsultants pursuant to this Agreement unless otherwise authorized in writing by City. This section does not apply to design documents, program codes, or scripts prepared by Vendor.

FEES AND PAYMENTS.

5.1 Total Contract Amount. City agrees to pay Vendor, and Vendor agrees to accept from City, the sum of Six Million Six Hundred Twenty-Eight Thousand Seven Hundred Thirty-Seven Dollars ($6,628,737.00), inclusive of all taxes, as the fee for the System, in the following amounts in accordance with the following performance milestones set forth in Section 5.1.1.

Licenses $1,491,963
Hardware $3,144,750
Services $1,289,302
Services - T1 $ 140,139
Maintenance $ 508,156
Management Discount $ (360,100)
- 14 -
FATTYMUNAcontract EMBIG BLUE BUSSiemensIFINAL DOC
56,214,210
3 Sales Tax $ 414,526
$6,628,737

5.1.1 Billing Milestones
MS
Milestone Description Billing S MS%
Notice to Proceed 310,710.56 5%
Vehicle - Survey - (By Vehicle Type: Bus, 186,426.33 3% Supvs, PS)
3 Site Surveys Complete 124,284.22 2% •
4 Approval of Project Plan 186,426.33 3%
Fingerprint Logon Design Approval 186,426.33 3%
For PAprint Logon Equipment Delivered to ILG 186,426.33 3% 7 124,284.22. 2%
186,426.33 3%
9 248,568.45 4%
10 186,426.33 3%
11 124,284.22 2%
12 186,426.33 3%
13 Cutover Plan Approval - Brick Building 124,284.22 2% 14 Network Equipment Delivered to ILG for FAT 310,710.56 5%, 15 Vehicle - Mechanical Design Approval - (By 186,426.33 3% Vehicle Type: Bus,
Supys, PS)
16 Dispatch Center Equipment Approval 186,426.33 3%
17 FAT Approval 186,426.33 3%
18 OnStreet Signage Installed 186,426.33 3%
19 186,426.33 3%
20 Network Equipment Approval 186,426.33 3%
21 GeoCode Routes Complete 186,426.33 3%
22 Final Prototype Design Approva 186,426.33 3%
23 Training and Documentation Complete 248,568.45 4%
24 Vehicle Installation - 10 186,426.33 3%
25 Vehicle Installation - 60 186,426.33 3%
26 Vehicle Installation - 60 186,426.33 3%
27 Vehicle Installation - 60 186,426.33 3%
28 Vehicle Installation Approval 186,426.33 3%
29 Vehicle Installation - 32 186,426.33 3%
30 ATP Acceptance 186,426.33 3%
Final System Acceptance 497,136.89 8%
Total W/O Tax 6,214,211.16 100%

5.2 Payment to Vendor.

5.2.1 After completion of each of the milestones set forth in Section 5.1.1, Vendor shall submit to City an Application for Payment signed by the - 15 -
FLATTYMUNIContractEMBIG BLUE BUSSiemens FINAL DOC
Project Manager. The signing of an Application for Payment will 3 constitute a representation and certification by Vendor to the City that (i) the application for payment is accurate and the Work has progressed to the point indicated; (i) to the best of Vendor's knowledge, information and belief, the Work is in accordance with the Contract Documents; and (iii) Vendor is entitled to payment in the amount certified.

5.2.2 The City shall pay and the Vendor shall accept the amounts set forth in the expenses, travel expenses, storage and shipping, risks and obligations, taxes (as applicable), fees and profit, and any unforeseen costs.

5.3 Withholding. All payments shall be made as provided herein, less a withholding of two percent (2%) plus any additional moneys withheld as provided below and less any amounts for penalties set forth herein.
•

5.3.1 Withholding Additional Amounts; Grounds.

In addition, City may withhold a sufficient amount from any payment or payments otherwise due to Vendor as in City's sole discretion may be necessary to protect City against actual Loss in the event of any of the following: (1) defective Work not remedied within a reasonable time in accordance with the contract documents (2) failure of Vendor to make proper payments to its subconsultants or subvendors for services, labor materials or equipment pursuant to this Agreement; (3) the occurrence of reasonable doubt that the Work can be completed for the balance of payments then unpaid to the Vendor, or in the time remaining until expiration of the Contract Time all of which are due soley to the fault or negligence of the Vendor; (4) any breach of this Agreement or the other Contract Documents.

5.3.2 City, in its reasonable discretion, may apply any withheld amount to the payment of any actual Loss that is the cause of a withholding of funds due solely to the fault or negligence of the Vendor. Vendor agrees and hereby designates City as its agent for such purposes, and any payment so made by City shall be considered as a payment made under this Agreement by City to Vendor. City shall not be liable to Vendor for any such payment made in good faith and following reasonable investigation. City shall render to Vendor an accounting of any funds disbursed on behalf of Vendor. Prior to applying such amounts as stated hereinabove, City shall afford Vendor an opportunity to present good cause, if any, why the Loss in issue is not a valid or just basis for withholding against Vendor. - 16 -
F: LATTY MUNI contract EMBIG BLUE BUS SiemensiFINAL.DOC

5.3.3 Provided City pays the undisputed portion, if any, of funds withheld in 3 good faith, Vendor shall maintain continuous and uninterrupted performance of the Work during the pendency of any disputes.

5.3.4 Correction of Statement and Withholding of Payment.

No inaccuracy or error in any Application for Payment provided by Vendor shall operate to release Vendor from the error, or from damages arising from the Work, or from any obligation imposed by the Contract Documents. City retains the right subsequently to correct any error made in any, revious an oed Apication for payment, or progres payment

5.4 Milestone Payments. Upon receipt of a completed Request for Payment, the City shall make payments to the Vendor in accordance with the above performance milestones. Title to material included in any payment request shall pass to the City upon payment by the City. Said title shall be free of all encumbrances.

However, such transfer of title shall not relieve the Vendor of its responsibility for the furnishing, installation, fabrication or inclusion of said materials as a deliverable element of items procured in accordance with the requirements of the Agreement.

Any payments made by the City to the Vendor prior to final payment for the System shall not reduce the liability of the Vendor to conform to all requirements and objectives of the Agreement.

5.5 Acceptance of Final Payment as Release. The acceptance by the Vendor of final payment shall release the City from all claims of, and all liability to, the Vendor for all things done or furnished in connection with this Agreement and for every act or omission of the City or others relating to or arising out of this Agreement.

No payment, however, final or otherwise, shall operate to release the Vendor or

5.6 Performance and/or Payment Bonds. Vendor shall provide the City with original Performance and/or Payment Bond as set forth in Exhibit 7.

5.7 Additional or Substitute Bond. If at any time the City, for justifiable cause, shall be, or become dissatisfied with the Surety or Sureties for the Performance and/or Payment Bonds, the Vendor shall within twenty one (21) days after notice from the City to do so, substitute an acceptable bond (or bonds) in such form and sum and signed by such other Surety of Sureties as may be satisfactory to the City. The premiums on such bond or bonds shall be paid by the Vendor. No further payments by the City shall be deemed due nor shall be made until the new Surety or Sureties shall have furnished an acceptable bond to the City.

NON-DISCLOSURE.
- 17 -
FATTYMUNFicontract EMBIG BLUE BUSSiemensiFINAL.DOC

6.1 Confidentiality of Software: City's Obligations. City understands and agrees that the Software contains proprietary trade secrets and confidential information and therefore shall keep the Software in confidence. City shall take all necessary actions and precautions with employees, agents and others to ensure that they are aware of, and will conform to, City's duties and obligations under this Agreement concerning using, copying and maintaining the trade secret and confidential nature of the Software. City's obligations under this section shall survive termination of this Agreement. This obligation does not apply to any portion of the Software: (1) developed by City and in City's possession prior to receipt of same from Vendor; (2) which at the time of disclosure is part of the public domain through no act or failure to act by City; or (3) which is lawfully disclosed to City without restriction on further disclosure by another who did not acquire same from Vendor.

6.2 City's Rights. Notwithstanding the obligations set forth in Section 6.1, above, the City may do the following: (1) copy, in whole or in part, any printed material relative to the Software which may be provided by Vendor under this Agreement (additional copies provided by Vendor will be billed to City at Vendor's standard rates); and (2) copy any Software provided by Vendor in machine-readable form for archive or emergency restart purposes, to replace a worn copy, to understand the contents of such machine-readable material, or to modify the Software as provided below. Any portion of the Software included in any updated work shall be subject to all the terms and conditions of this Agreement.

6.3 Confidentiality of City Data. Vendor's Obligations. The City data contains confidential information. Accordingly, all data prepared or created for the City pursuant to this Agreement or through the Software shall be and remain confidential and protected from disclosure to the maximum extent protected by law. Vendor agrees as follows: (1) the City data is not to be disclosed to any persons other than the employees, agents, officers or representatives of Vendor who have a need to know; and (2) the City data shall be held in the strictest confidence and shall not be disclosed, disseminated or revealed to any other third party. Vendor shall ensure that its employees, officers, agents or representatives who are involved with this Agreement will be advised of the terms of this confidentiality clause and will be instructed that they are bound by this confidentiality clause.

6.4 Survival of Obligations. The mutual nondisclosure obligations shall survive the termination of this Agreement.

WARRANTIES AND MAINTENANCE.
- 18 -
FATTYMUN/contractEMUBIG BLUE BUSSiemens FINAL.DOC

7.1 Warranty. Vendor warrants that the System furnished under the Agreement will conform to the requirements of the Contract Documents and be free of defects in naterials and working conditions (collectively referred to as "Warranty Statement"). In regard to services, Vendor warrants that the services furnished hereunder will conform to the Contract Document requirements.

7.2 Services, Hardware, & Software. All of the services, hardware, and Software, including, but not limited to, materials, supplies, equipment and goods (collectively the "System") provided hereunder and any associated software or documentation delivered hereunder are subject to the following warranties:

7.2.1 Services. Vendor warrants that the services to be provided hereunder in accordance with the Statement of Work and the Specification attached to the applicable Contract Document will be performed in a professional manner and shall reasonably conform to customary practices and quality of similar services provided in the Vendor's industry. Vendor agrees to reperform, in a timely manner, at no additional cost to the City, any service provided hereunder which does not reasonably conform to such

7.2.2 Hardware. Vendor warrants that the hardware sold hereunder shall be free from defects in material and workmanship and conform to the applicable Specifications as set forth in the Contract Documents. Vendor agrees to repair or alternatively replace at its discretion, in a timely manner, without charge, any such equipment which is defective as to design, workmanship or material, and which is returned to Vendor at its factory, transportation prepaid, provided:
(i) Notice of the claimed defect is given to Vendor within twelve (12) months from the commencement of warranty as specified below for the applicable warranty component. and equipment is returned in accordance with Vendor's reasonable instructions.
(ii) Such equipment shall not be deemed to be defective, if, due to exposure to any condition in excess of those published in the applicable Specification, it shall fail to operate in a normal manner. (iii) Vendor's obligations with respect to such equipment are conditioned upon the proper installation and operation of such equipment by the City (or the City's representative designated in writing) in accordance with Vendor's written directions when the City, at the request of the Vendor, installs equipment under normal maintenance and operating procedures.
(iv) Except as provided for in Section 7.2.8, the warranty stated in this . Section shall be void if such equipment is altered or repair is - 19 -
FATTYMUNcontraCEMBIG BLUE BUSSiemensiFINAL.DOC
attempted or made by other than Vendor or Vendor's authorized 3 service center.
(v) Vendor shall pay or reimburse the City for all freight, insurance, and packaging costs directly incurred by the City for return of hardware when non-compliance with the above warranties is confirmed by Vendor. Risk of loss in that hardware passes to Vendor upon receipt from the City and to the City when delivered under the agreed to delivery terms.

7.2.3 Software. Vendor warrants that any software delivered hereunder, either embedded in equipment described herein or specifically designed for use in or with such equipment, will substantially provide the functions) set forth in the applicable Specification attached to the applicable Contract Documents. Vendor will, at its option, without charge, revise or replace such nonconforming software, as provided:
(i) Notice of the claimed defect is given Vendor within twelve (12) months from the commencement of warranty as specified below for the applicable warranty component.
(ii) Software shall not be deemed to be defective if the software or the host medium is exposed to any computer virus or to any condition in excess of those published in the applicable Specification(s). (iii) Vendor's obligations are conditioned upon the proper installation and operation of software and the host medium in accordance with Contactor's written instructions.
(iv) Except as set forth in Section 7.2.8, the warranty stated herein shall be void if such software (or its host medium) is altered (or alterations are attempted) by other than Vendor or Vendor's authorized service provider.

7.2.4 Documentation Delivery. Documentation delivered hereunder in accordance with the Statement of Work and Specification attached to the applicable Contract Documents shall reasonably conform to the requirements thereof. Vendor's sole obligation and the City's sole remedy with respect to such documentation is limited to the correction of any factual errors contained in such documentation delivered hereunder. Any claim for correction pursuant to this documentation warranty must be made within one hundred eighty (180) days of warranty commencement of the Systems for which correction is claimed.

7.2.5 Latent Defect Warranty. Vendor shall, for a period of three (3) years after Final System Acceptance, warrant against latent defects which materially adversely affect the specified performance of the Systems, existed at the - 20-
FATTYUNficontracEMBIG BLUE BUSSiemensIFINAL.DOC
time of acceptance and which could not have been discovered through 3 exercise of reasonable inspection methods within the basic warranty period. As the sole and exclusive remedy for any such latent detect, Vendor will, in a timely manner, either replace the defective goods with pecification compliant Systems, or modity said Systems so as to bi ompliant with the applicable performance Specification or, if the oregoing options are not reasonably available, take back the detectiv 'ystems and refund the purchase price less a reasonable allowance for use

7.2.6 Warranty Period. The entire Vendor-provided System shall be covered for one (1) year commencing from Final System Acceptance. The warranty shall provide for all costs related to warranty repairs such as, parts, labor (to include overtime), travel time, vehicle mileage, etc.

7.2.7 Warranty Components. Warranty hereunder is divided into two (2) components:
(i) Radio and fixed infrastructure hardware, all equipment and materials provided by the Vendor, including, but not limited to, the Contract Documents (fixed radio equipment, portable handheld radios). These components go into warranty upon acceptance of the Mini Fleet Test.
(ii) Software/ Vehicle System Warranty (All vehicle components)/ Services. All System software, including all interfaces, all vehicle components and all service(s) warranties as specified in the Contract Documents will go into warranty following Final System Acceptance.
(iii) Each vehicle component provided as a spare and delivered after Final System Acceptance will go into warranty upon delivery.

The Warranty Period for all Work shall be for one (1) year commencing from Final System Acceptance unless otherwise specified above for Warranty Components.

7.2.8 Warranty Provisions Resulting from System Relocation(s). The parties contemplate that the Big Blue Bus may relocate the System prior to and after Final System Acceptance. The warranties set forth in this Agreement shall remain in full force and effect provided that Vendor is presented the relocation plan for review and approval, which shall not be unreasonably withheld.
- 21-
FATTYMUNcontractEMBIG BLUE BUSSiemens FINAL.DOC

7.3 Documentation. The Software shall continue to perform in accordance with the Contract Documents and the most current documentation, which may be modifier from time to time. There is no program code, other than as specified in Vendor's documentation, that will restrict the City's use of the Software.

7.4 Maintenance. After expiration of the Warranties set forth in this Section 7, Vendor shall provide maintenance of the System to the City for a five-year period commencing from the expiration of the Warranties ("Maintenance Term"). The maintenance shall be provided in accordance with the terms and conditions of the Contract Documents. After the expiration of the Maintenance Term, the City may renew the maintenance from year to year at a price not to exceed a 5% increase over the previous year's support and maintenance fees.

7.5 Modifications/Enhancements. Any modification or enhancement of the Software shall satisfy the warranties and conditions set forth in this Section until the expiration of the warranty and maintenance periods, any extensions thereof for as long as the City elects to continue the maintenance terms.

7.6 Updates/Upgrades/Replacements. All future updates, upgrades and replacements of the Software should be compatible with the technology outlined in the RFP and Proposal.

7.7 Responses During Warranty. In the event that the City encounters an error and/or malfunction of the Software, Vendor shall resolve the problem according to the following response level:

7.7.1 A "Level A Priority" shall mean and refer to a software error that renders the entire System inoperable. Vendor shall assign resources within the first hour and shall continue to work on the problem until the problem is resolved. Average resolution time shall be no greater than four (4) hours;

7.7.2 A "Level B Priority" shall mean and refer to the detection of a software error for a system module which seriously impairs system operations, but does not render it "down." Vendor shall assign resources within four hours and continue to work on the problem until the problem is resolved;

7.7.3 A "Level C Priority" shall mean and refer to a minor problem, but of sufficient severity to warrant correction before the next production software release or service pack. Vendor shall resolve the problem within thirty (30) days; and

7.7.4 A "Level D Priority" shall mean and refer to "would likes" and minor problems that do not severely affect the operation of the system and generally will be incorporated in the next production of the Software.

Vendor reserves the right to determine "would like" relevance to the package and the schedule of the development and release of such items. - 22-
FATTYMUNIcontractEMBIG BLUE BUSSiemens FINAL.DOC

7.8 Survival of Section. This section shall survive the termination of this 3 Agreement.

7.9 Non-Waiver of Warranties. It is understood that compliance with the paragraphs above and the acceptance of the equipment and materials to be manufactured and assembled pursuant to this Agreement shall not waive any warranty, or any rights available to the City under this Agreement, or release the manufacturer from any liability of the manufacturer as determined by the terms of this Agreement.

7.10 Repair During Warranty. During the warranty period(s), the City is authorized by the Vendor to commence repair and/or replacement of defective hardware and software products delivered hereunder by the Vendor only after the Vendor has been notified in writing of the defect and the Vendor has advised the City that it cannot respond within the response timeframes stated hereunder. All such resultant repair and/or replacement by the City shall be performed by qualified maintenance personnel in accordance with the Operation and Maintenance manuals furnished by the Vendor. Vendor shall reimburse the City for reasonable labor costs associated with such repairs/replacements made after acceptance and within the warranty period.

7.11 Repairs by City.

7.11.1 Parts Used. If the City performs the repairs at the request of the Vendor as set forth above, it shall correct or repair the detect and any related !
defects using Vendor-specified parts available from its own stock or those supplied by the Vendor specifically for this repair. Monthly, or at a period to be mutually agreed upon, reports of all repairs covered by this procedure shall be submitted by the City to the Vendor for reimbursement or replacement of parts. The Vendor shall provide forms for these reports.

7.11.2 Vendor Supplied Parts. If the Vendor supplies parts for repairs being performed by the City as set forth above, these parts shall be shipper prepaid to the City from any source selected by the Vendor within 10 (ten, working days after receipt of the request for said parts.

7.11.3 Return of Defective Components. The Vendor may request that parts covered by this provision be returned to the manufacturing plant. The total costs for this action shall be paid by the Vendor.

7.11.4 Reimbursement for Labor. The City shall be reimbursed by the Vendor for actual labor costs, including, fringe benefits, and towing costs for each affected bus, if necessary.

7.12 Time for Completion and Liquidated Damages.

7.12.1 It is hereby understood and mutually agreed, by and between the Vendor and the City, that the date of beginning and the time for completion as of - 23 -
FLATTYMUNAcontract EMUBIG BLUE BUSSiemens FINAL. DOC
the Work are ESSENTIAL CONDITIONS of this Agreement; and it is urther mutually understood and agreed that the Work embraced in thi greement shall be commenced on a date to be specified in the Notice t Proceed, and shall be fully completed within eighteen (18) calendar

7.12.2 Liquidated Damages. If said Vendor shall neglect, fail or refuse to extension thereof granted by the City, then the Vendor does hereby agree, as a part consideration for the awarding of this Agreement, to pay to the City the amount of Seven Hundred Fifty Dollars ($750.00) per day (Monday through Friday), up to a maximum of six months as liquidated damages for each and every calendar week, that the Vendor shall be ir default, solely due to causes within the Vendor's control, after the time stipulated in the Agreement for completing the work. However, the Vendor shall not be charged with liquidated damages where the City determines that the Vendor is without fault and the Vendor's reasons for the time extension are acceptable to the City; or, when the delay in completion of the work is due the following: (i) to any preference, priority or allocation order duly issued by the City; (11) to unforeseeable cause beyond the control and without the fault or negligence of the Vendor, including but not restricted to, acts of God, acts of the public enemy, acts of the City, acts of another Vendor in the performance of an Agreement with the City, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and severe weather; (iii) to any delays of subcontractors or suppliers occasioned by any of the causes specified above; provided that the Vendor shall, within ten (10) days from the beginning of such delay, unless the City shall grant a further period of time prior to the date of final settlement of the Agreement, notify the City, in writing, of the cause of delay, which shall ascertain the facts and extent of the delay and notify the Vendor within a reasonable time of its decision - 24 -
F:ATTYUNIcontract EMBIG BLUE BUSSiemens FINAL. DOC
Vendor's payment of, or agreement to pay, of liquidated damages and the City's acceptance of such liquidated damages for any specific period of delay, shall in no way effect the City's right to terminate the contract for default in any subsequent delay.

By:

City of Santa Monica Vendor

8. INSURANCE.

8.1 Consultant's Insurance. Prior to commencing work, the Consultant shall procure and maintain at Consultant's own cost and expense for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work or services hereunder by the Consultant, his agents, representatives, employees, or subcontractors. The cost of such insurance shall be included in Consultant's bid.

Without in any way affecting the indemnity provided the Consultant shall secure before commencement of the work and throughout the Agreement the following types and amounts of insurance:

8.2 Minimum Limits of Insurance. Consultant shall obtain insurance of the types and in the amounts described below:
(i) Commercial General Liability Insurance
Consultant shall maintain commercial general liability insurance (CGL) with a limit of not less than $5,000,000 each occurrence/$5,000,000 in the annual aggregate.
(i) Business Auto Liability Insurance
Consultant shall maintain business auto liability insurance and, with a limit of not less than $5,000,000 each accident.
(iii) Professional Liability (Errors and Omissions) Insurance.

Consultant shall maintain professional liability insurance appropriate to the consultant's profession with a limit not less than $1,000,000 each occurrence/$1,000,000 in the annual aggregate.
(iv) Workers Compensation and Employer's Liability Insurance.

Consultant shall maintain workers compensation insurance as required by the State of California and Employer's Liability Insurance in the amount of $1,000,000 per accident for bodily injury or disease. - 25 -
FATTYMUN contract EMBIG BLUE BUSSiemensiFINAL DOC
Vendor's payment of, or agreement to pay, of liquidated damages and the City's acceptance of such liquidated damages for any specific period of delay, shall in no way effect the City's right to terminate the contract for default in any subsequent delay.

By: By: Say Jousic by BAK
City of Santa Monica Vendor
INSURANCE.

Without in any way affecting the indemnity provided the Consultant shall secure before commencement of the work and throughout the Agreement the following types and amounts of insurance:

8.2 Minimum Limits of Insurance. Consultant shall obtain insurance of the types and in the amounts described below:
(i) Commercial General Liability Insurance
Consultant shall maintain commercial general liability insurance (CGL) with a limit of not less than $5,000,000 each occurrence/$5,000,000 in the annual aggregate.
(ii) Business Auto Liability Insurance
Consultant shall maintain business auto liability insurance and, with a limit of not less than $5,000,000 each accident.
(iii) Professional Liability (Errors and Omissions) Insurance.

8.3 Minimum Scope of Insurance.
3 (i) CGL insurance shall be written on Insurance Services Office form CG 00 01 (or a substitute form providing equivalent coverage) and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury liability assumed under an insured contract (including the tort liability of another assumed in a business contract), and explosion, collapse and underground hazards.
(ii) Business Auto Insurance shall cover liability arising out of any auto (including owned, hired, and non-owned autos). Coverage shall be written on Insurance Services Office form CA 00 01, CA 00 05, CA 00 12, CA 00 20, or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage equivalent to that provided in the 1990 and later editions of CA 00 01.
• (iii) If the Professional Liability Insurance policy is written on a claims made basis, it shall be maintained continuously for a period of no less than five(5) years after final completion. The "Retro Date" must be shown, and must be before the date of the contract or beginning of contract work.

8.4 Deductibles and Self-Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City of Santa Monica. At the option of the City of Santa Monica, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City of Santa Monica, its officers, officials, employees, or volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City of Santa Monica guaranteeing payment of losses and related investigation, claim administration and defense expenses.

8.5 Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

The City of Santa Monica, its officers, officials, employees, and volunteers are to be covered as additional insureds with respect to liability arising out of automobiles owned, leased, hired, or borrowed by or on behalf of the consultant; and with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts or equipment furnished in connection with such work or operations. Under the CGL policy, using the Insurance Services Office additional insured endorsement form CG 20 26 or a substitute providing equivalent coverage. City and other additional insureds mentioned in this paragraph shall not, by reason of their inclusion as additional insureds, become liable for any payment of premiums to carriers for such coverage. r
- 26 -
FLATTY UNTcontractEMBIG BLUE BUS'SiemensiFINAL DOC
(ii) For any claims related to this project, the Consultant's insurance coverage shall be primary as respects the City of Santa Monica, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees, or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.

8.6 General Liability, Workers' Compensation and Employer's Liability. The insurer shall agree to waive all rights of subrogation against the City of Santa Monica, its officers, officials, employees, and volunteers for losses arising from activities and operations of Consultant in the performance of services under the contract.

8.7 All Coverages.
(i) Each insurance required by this clause shall be endorsed to state that coverage shall not be canceled except after thirty (30) days prior written notice by U.S. mail has been given to the Risk Manager of the City of Santa Monica.
(ii) If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. City, at its sole option, may terminate this Agreement and obtain damages from the Consultant resulting from said • breach. Alternatively, City may purchase such coverage (but has no special obligation to do so), and without further notice to the Consultant, City may deduct from sums due to the Consultant any premium costs advanced by the City for such insurance.

8.8 Acceptability of Insurers. Insurance is to be placed with insurers with a current Risk Man rating of no less than A.i6 unless otherwise approved by the City's

8.9 Verification of Coverage. Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements effecting coverage required by this section. The certificates and endorsements for each policy are to be signed by a person authorized by the insurer to bind coverage on its behalf. The certificates and endorsements should be on forms provided by the City of Santa Monica or on other than the City of Santa Monica's forms, provided those forms and endorsements conform to the requirements. All certificates and endorsements are to be received and approved by the City of Santa Monica before work

8.10 Subconsultants. Consultant shall include all subconsultants as insureds under its policies or shall furnish separate certificates and endorsements for each - 27-
F:ATTYMUNcontractEM\BIG BLUE BUSSiemens FINAL.DOC
subcontractor. All coverages for subconsultant shall be subject to all of the requirements stated herein.

9. INDEMNIFICATION.

9.1 Indemnification. Vendor shall, to the extent permitted by law, indemnify, defend and hold harmless City from and against any and all claims, damages, losses, expenses or liabilities, including, but not limited to, reasonable attorneys' fees, arising out of or resulting from the following: (i) Vendor's performance of or failure to perform its obligations under this Agreement; and (ii) willful misconduct or the negligent acts, errors or omissions of Vendor, its officers, agents, representatives, and employees in the performance of services under this Agreement, including, but not limited to the installation of the AFMS and training hereunder.

9.2 Receipt of Notice. Upon receipt of notice and if given authority, shall settle at its own expense or undertake at its own expense the defense of any such suit, action or proceeding, including appeals, against the City and its officers, employees and • agents, including consultants, relating to such injury, death, loss or damage. This cannot be done without the express written consent of the Consultant and/or its subconsultants. Each party shall promptly notify the other in writing of the notice or assertion of any claim, demand, lien, encumbrance, judgment, award, suit, action or other proceeding hereunder. The Vendor shall have sole charge and direction of the defense of such suit, action or proceeding. The City shall, at the request of the Vendor, furnish to the Vendor all reasonable assistance that may be necessary for the purpose of defending such suit, action or proceeding and shall be repaid all reasonable costs incurred in doing so. The City shall have the right to be represented therein by advisory counsel of its own selection at its own expense.

The Consultant shall not be obligated to indemnify the City for the City's own negligence.

9.3 Patent and Copyright Claims. In addition to the indemnification provided in Section 9.1, above, the Vendor shall indemnify and save harmless the City and its officers, agents, servants and employees from liability of any nature or kind, losses, damages, cost and expenses based upon, or on account of, any copyright, or patented or non-patented invention, process, article, or appliance manutactured or used in the performance of the Agreement, including its use by the City.

Vendor will defend at its expense any action brought against the City to the extent that it is based on a claim that Goods manufactured, developed and supplied by Vendor to the City hereunder constitute direct infringement of any duly issued United States patent or infringement of any copyright in the United States and Vendor will pay all damages and costs finally awarded against the City in such action which are attributable to such claim, provided that Vendor is promptly informed in writing and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given authority, information and assistance (at Vendor's expense) necessary to defend or settle such claim. Should the Goods delivered by Vendor hereunder become, or in Vendor's opinion be - 28-
F:ATTY MUNIcontractEM BIG BLUE BUS Siemens FINAL.DOC
likely to become, the subject of a claim of infringement of any United States patent or any copyright in the United States, then Vendor may at its option, without limitation on its obligation to defend, indemnify and hold harmless: (i) procure for the City the right to use Goods free of any liability or infringement; or (ii) replace such Goods with noninfringing substitutes otherwise complying substantially with all the requirements of this contract; or (iii) refund the purchase price less a reasonable charge for use and accept the return of such Goods.

Vendor will not be obligated to defend or be liable for costs and damages if the infringement arises out of goods not manufactured or developed by Vendor, or a modification of the Goods after delivery by Vendor. If the infringement is alleged prior to completion of delivery of the Goods under this contract, Vendor may decline to make further shipments without being in breach of this contract, and provided Vendor has not been enjoined from selling the Goods to the City, Vendor agrees to supply such Goods to the City at the City's option, whereupon the indemnity obligation herein stated with respect to Vendor shall reciprocally apply with respect to the City. THE FOREGOING STATES THE SOLE AND

EXCLUSIVE LIABILITY OF THE PARTIES HERETO FOR PATENT
AND/OR COPYRIGHT INFRINGEMENT.

10. TERM AND TERMINATION.

10.1 Commencement of License Term. This Agreement and the license granted hereunder shall take effect upon the Execution Date, and shall be perpetual unless terminated for default pursuant to Section 10.2, below.

10.2 Termination of Software License. In the event that a party to this Agreement fails to perform any of the obligations set forth in this Agreement, and if the default is not cured within a period of thirty (30) days after the date of notice of default specifying the nature of default and the steps necessary to cure the default, the nondefaulting party may terminate this Agreement by providing written notice.

10.3 Software After Termination. All Software supplied hereunder by Vendor shall be and remain the property of Vendor. Upon termination of the license, whatever the reason, such Software and any copies thereof made by City shall be returned to Vendor. Data entered into the system shall remain the property of the City.

10.4 Termination for Convenience.

10.4.1 Thy in acordance work under this green impart terminate by thy shall determine that such termination is in the best interest of the City.

Any such termination shall be effected by delivery to the Vendor of a thirty (30) day written notice of termination specifying the extent to which performance of Work under the Agreement is terminated, and the date upon which such termination becomes effective.
- 29 -
FATTYMUNN contract EMBIG BLUE BUS Siemens FINAL DOC

10.4.2 After receipt of a notice of termination, and except as otherwise directed as may be necessary for completion of such portion of the work under the Agreement as is not terminated; (3) terminate all orders and subcontracts to the extent that they relate to the performance of work terminated by the notice of termination: (4) settle all outstanding liabilities and all claim arising out of such termination of orders and subcontracts, with the approval or ratification of the City, to the extent may be required, which approval or ratification shall be final for all the purposes of this clause; (5) upon full payment by the City for same, transfer title to the City and deliver in the manner, at the times, and to the extent, if any, directed by City the fabricated or unfabricated parts, work in process, completed work, supplies, and other material produced as part of, or acquired in connection with the performance of, the work terminated, and the completed or partially completed plans, drawings, information and other property which, if the Agreement had been completed, would have been required to be delivered to the City under the terms of the Agreement: (6) use its best efforts to sell, in the manner, at the times, to the extent, directed or authorized by the City, any property of the types referred to above, provided, however, that the Vendor shall not be required to extend credit to any purchaser, and may acquire any such property under the conditions prescribed by the City, and provided further, that the proceeds of any such transfer or disposition shall be applied in reduction of any payments to be made by the City to the Vendor under this Agreement or shall otherwise be credited to the price of the work covered by this Agreement; (7) complete performance of such part of the Work as shall not have been terminated by the notice of termination; and take such action as may be necessary, or as the City may direct, for the protection or preservation of the property related to this Agreement which is in the possession of the Vendor and in which the City has or may acquire an

10.5 Termination for Default.

10.5.1 The City may, by written notice of default to the Vendor, terminate in whole or in part if the Vendor fails to make delivery of the supplies or to perform the services within the time specified herein or any extension - 30 -
F:ATTYUN/contract\EM\BIG BLUE BUSSiemens FINAL. DOC
thereof; or if the Vendor fails to materially perform any of the other provisions of the Agreement, or so fails to make progress as to endanger performance of this Agreement in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of ten (10) days (or such longer period as the City may authorize in writing) after receipt of notice from the City specifying such failure. In the event that City elects to waive its remedies for any breach by Vendor of any covenant, term or condition of this Agreement, such waiver by City shall not limit City's remedies for any succeeding breach of that or of any other term, covenant, or condition of this Agreement.

10.5.2 If the Agreement is terminated in whole or in part for default, the City supplies or services up to the amount of the Vendor's applicable Performance Bond and shall continue the performance of this Agreement to the extent not terminated under the provisions of this clause. Except with respect to defaults of subcontractors, the Vendor shall not be liable for any excess costs if the failure to perform the Agreement arises out of causes beyond the control and without the fault or negligence of the Vendor. If the failure to perform is caused by the default of a subcontractor, and if such default arises out of causes beyond the control of both the Vendor and subcontractor, and without the fault or negligence of either of them, the Vendor shall not be liable for any excess costs for failure to perform, unless the supplies or services to be furnished by the subcontractor were obtainable from other sources in sufficient time to permit the Vendor to meet the required delivery schedule.

10.5.3 Payment for completed supplies delivered to and accepted by the City shall beat the Agreement price. If after notice of termination of this Agreement under the provisions of this clause, it is determined for any reason that the Vendor was not in default under the provisions of this clause, or that the default was excusable under the provisions of this clause, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to termination for convenience of the Procurement Agency.

10.5.4 The rights and remedies of the City provided in this clause are in addition to any other rights and remedies provided under this Agreement.

10.6 Limitation of Liability

NOTWITHSTANDING ANY OTHER PORTION OF THIS AGREEMENT TO

THE CONTRARY, THE VENDOR SHALL NOT BE LIABLE FOR
DAMAGES IN EXCESS OF 1.5 TIMES THE CONTRACT PRICE. VENDOR - 31 -
FATTYMUN/contrat EMBIG BLUE BUSSiemensiFINAL.DOC

SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES.

11. ASSIGNMENT.

The Vendor shall not assign, transfer, convey, sublet or otherwise dispose of the whole or any part of this Agreement or his right, title or interest in or to any moneys due or that would become due under this Agreement without the express written consent of the City. The instrument of assignment shall contain a clause substantially to the effect that it is agreed that the right of the assignee in and to any compensation due or to become due the Vendor shall be subject to prior claims of all persons, firms and corporations for services rendered or materials supplied for the performance of the work called for in this Agreement

12. GOVERNING LAW.

This Agreement shall be governed by the law of the State of California.

13. NOTICES.

All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after deposit in the United States mail, postage prepaid, addressed as follows:

13.1 All notices, demands, requests or approvals from Vendor to City shall be addressed to City at:

To City: City of Santa Monica
Information Systems
1685 Main Street, Room 110
Santa Monica, CA 90401
Attn: Jory Wolf, CIO
With a copy to: City Attorney's Office
1685 Main Street, Room 310
Santa Monica, CA 90401
Attn: City Attorney

13.2 All notices, demands, requests or approvals from City to Vendor shall be addressed to Vendor at:

Siemens Transportation Systems, Inc.

Integrated Local Government Division
5265 Rockwell Drive NE
Cedar Rapids, IA 52402
Attention: Mark Witte Manager, Contracts
- 32-
EVATTYMUNicontrac EMBIG BLUE BUS SiemensFINAL DOC

14. DISPUTE RESOLUTION PROCEDURE.

Except as otherwise provided in this Agreement, the parties shall follow the dispute resolution procedure set forth in Section 14 for any dispute arising from this Agreement.

However, by mutual agreement the matter may be taken immediately to any higher step in the dispute resolution process, or mutually agreed to alternative dispute resolution process (which may include structured negotiations, mediation or arbitration), or litigation. Pending final resolution of a dispute hereunder, the Vendor shall proceed diligently with the performance of the Agreement and in accordance with the Project Manager or City Manager's decision, as the case may be.

14.1 Notice of Dispute. All disputes shall be initiated through a written dispute notice submitted by either party to the other party within 10 (ten) days from the occurrence of the dispute.

14.2 Negotiation Between Executives. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between the Project Manager for the City and the executive for Vendor who has authority to settle the controversy. Within 14 (fourteen) days after delivery of the dispute notice, the receiving party shall submit to the other party a written response. The dispute notice and written response shall include (a) a statement of the party's position and a summary of the arguments supporting that position, (b) any evidence supporting the party's position and (c) the name of -
1 the executive who will represent that party and of any other person(s) who will accompany the executive in negotiations. Within 28 (twenty- eight) days after delivery of the dispute notice, the executives of both parties shall meet at a mutually acceptable time and place, and thereafter as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information by one party to the other shall be honored. If the matter has not been resolved by these persons within forty-two (42) days of the dispute notice, the dispute may be referred to more senior executives of both parties who have authority to settle the dispute and who shall likewise meet to attempt to resolve the dispute.

14.3 City's or City Manager's Decision. Should the dispute not be resolved by negotiation between executives, as provided in Section 14.2, above, the City's executive representative shall submit a written request for decision to the contracting officer. The Project Manager shall issue a written decision within 14 (fourteen) days of receipt of a request

14.3.1 The decision of the Project Manager shall be administratively final and conclusive unless, within thirty (30) days from the date of delivery of the written decision, the Vendor appeals the decision in writing to the City's City Manager or designee who shall render a written decision within fourteen (14) days of delivery of such written appeal. Such decision by the City Manager or his/her designee shall be final and conclusive. - 33-
F: LATTYIMUNIcontractEMBIG BLUE BUSISiemens FINAL DOC

14.3.2 Within thirty (30) days of the issuance of any administratively final and conclusive decision under this paragraph 3, the Vendor shall notify the City in writing of the Vendor's agreement with the final decision. Failure to provide such written notice of agreement shall indicate an intent by the

14.3.3 Any dispute which is not resolved by the Parties through the operation of the provisions of this Section 14, or any mutually agreed upon alternative disputes resolution process as provided for below may be submitted to any court in the State of California.

14.3.4 Pending final resolution of a dispute hereunder, the Vendor shall proceed diligently with the performance of its obligations under the Agreement in accordance with the written directions of the City.

14.4 Alternative Disputes Resolution. If agreed to by both parties disputes may be resolved by a mutually agreed to alternative dispute resolution process which may include structured negotiations different from the above process, mediation or arbitration.

15. COSTS OF LITIGATION.

If any legal action or proceeding is necessary to enforce any provision of this Agreement or for breach of this Agreement, the prevailing party shall be entitled to receive from the opposing party all costs and expenses and such amount as may be adjudged to be reasonable attorney's fees. The prevailing party's attorneys' fees shall be paid whether or not the action is prosecuted to judgment. The prevailing party shall be entitled to recover an amount equal to the fair market value of legal services provided by attorneys employed by the prevailing party as well as any attorneys' fees paid to outside attorneys in connection with the action.

16. INTEGRATED AGREEMENT.

16.1 Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and party causing the uncertainty.

16.2 Modifications. Any proposed changes to this Agreement or exhibits thereto shall be submitted to the City for its prior written approval. Oral change orders are not permitted. Any modification of this Agreement or exhibits thereto will be effective only by written execution signed by both City and Vendor and approved as to form by the City Attorney. The Vendor shall be liable for all costs resulting - 34-
FATTYMUNNcontracEMBIG BLUE BUSISiemensFINAL.DOC
from, and/or for satisfactorily correcting, any specification change not properly ordered by written modification to the Agreement and signed by the City.

16.3 Modification Procedure. All modifications shall be preferably executed by both parties prior to the performance of changed work. Should the parties not be able to reach mutual agreement, the City shall be able to issue a unilateral Change Order as soon as reasonably practicable but no later than thirty (30) calendar days after receipt of the written change order to modify the Agreement, the Vendor shall submit to the City a detailed price and schedule proposal for the work to be performed. This proposal shall be accepted or modified by negotiations between the Vendor and City. At that time a detailed modification shall be executed in writing by both parties. Disagreements that cannot be resolved within the negotiațions shall be resolved in accordance with the dispute resolution clause set forth in Section 14 of this Agreement. Regardless of any disputes, the Vendor shall be obligated to proceed with the work ordered.

17. PERMITS AND LICENSES.

Vendor, at its sole expense, shall obtain and maintain during the term of this Agreement, all required business and professional permits, licenses and certificates except as set forth in Section 2.5.

18. COMPLIANCE WITH LAW.

Vendor shall comply with all federal, state and local laws, including all City ordinances, rules and regulations, including, but not limited to the following:

18.1 Compliance with Laws and Regulations. All materials and supplies and/or construction furnished pursuant to this Agreement shall be in compliance with the laws and regulations of the State of California and the United States of America.

Vendor shall, if requested by the City, supply certification and evidence of such compliance

18.2 Program Fraud and False or Fraudulent Statements and Related Actions.

18.2.1 The Vendor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. §~3801, et seq. and U.S.

DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Accordingly, by signing the underlying Agreement, the Vendor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying Agreement or the FIA assisted project for which this Agreement work is being performed. In addition to other penalties that may be applicable, the Vendor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act - 35-
FATTYMUNIcontract EMBIG BLUE BUSISiemensiFINAL.DOC
of 1986 on the Vendor to the extent the Federal Government deems appropriate.

18.2.2 The Vendor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under an Agreement connected with a project that is financed in whole or in part with Federal assistance awarded by FTA under the authority of 49 U.S.C. § 5301 et seq., the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5301 et seq. on the Vendor, to the extent the Federal Government deems appropriate.

18.3 Incorporation of FTA Terms. "General Contract Provisions," (this Section 2), includes, in part, certain standard terms and conditions required by DOT, whether or not expressly set forth in the Agreement provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1 D, as amended, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Vendor shall not perform any act, fail to perform any act, or refuse to comply with any City requests which would cause City to be in violation of the FTA terms and conditions.

18.4 Changes in Federal Laws and Regulations. Vendor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the agreement between City and FTA that funds any part of this Agreement, as they may be amended or promulgated from time to time during the term of this Agreement. Vendor's failure to so comply shall constitute a material breach of this Agreement.

18.5 Energy Conservation: The Vendor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. (42 U.S.C. 6321 et seq.)

18.6 Recycled Products. The Vendor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247.

18.7 Civil Rights: Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990,42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Vendor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, - 36-
FATTYMUN contrad EM BIG BLUE BUSSiemensIFINAL DOC
or disability. In addition, the Vendor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue.

18.8 Access Requirements for Individuals with Disabilities. The City and Vendors are required to comply with all applicable requirements of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq. and 49 U.S.C. 322;, Section 504 of the Rehabilitation Act of 1972, as amended, 29 U.S.C. 794; Section 16 of the Federal Transit Act, as amended, 49 U.S.C. app. 1612; and the following regulations and any amendments thereto:

18.8.1 U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)" 49 C.F.R. Part 37;

18.8.2 U.S. DOT regulations "Nondiscrimination on the Basis of Handicap n rograms and Activities Receiving or Benefiting from Federal Financi ssistance " 49 C.F.R. Part 27

18.8.3 U.S. DOT regulations, "Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 49 C.E.R. Part 38;

18.8.4 Department of Justice (DOJ) regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 C.F,R. Part 35;

18.8.5 DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C.F.R. Part 36;

18.8.6 General Services Administration regulations, "Construction and Alteration of Public Buildings," "Accommodations for the Physically Handicapped," 41 C.F.R. Part 101-19;

18.8.7 Equal Employment Opportunity (EEOC) "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630;

18.8.8 Federal Communications Regulations, "Telecommunications Relay Services and Related Customer Premises Equipment for the Head/ring and Speech Disabled," 47 C.F.R. Part 64, Sub-part F; and

18.8.9 FTA Regulations, "Transportation for Elderly and Handicapped Persons" 49 D.F.R.Part 609.

18.9 Equal Employment Opportunity. The following equal employment opportunity requirements apply to the underlying Agreement:

18.9.1 Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Vendor agrees to comply with all applicable - 37 -
F: VATTYMUN/contractEMBIG BLUE BUSUSiemens FINAL.DOC
equal employment opportunity requirements of U.S. Department of Labor "Office of Federal Contract Compliance
programs, qual amployment portery, Dopatment of Labor, 41 future effect construction activities undertaken in the course of the Project.

18.9.2 Age. In accordance with section 4 of the Age Discrimination in Transi Ya at 49 U.S.C. 32, te en2or arc f0 62 and Federal die. in adion, thin enden and prospely employes foreston of requirements FTA may issue.

18.9.3 Disabilities. In accordance with section 102 of the Americans with Employment Provisions of the Americans with Disabilities Act." 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Vendor agrees to comply with any implementing requirements FTA may issue.

19. AUDIT REQUIREMENTS.
- 38-
FIATTYIMUNIcontract EMBIG BLUE BUSSiemens\FINAL.DOC

19.1 Certifications Required. Vendor agrees to comply with 49 U.S.C. § 5323(1) and FTA's implementing regulation at 49 C.F.R. Part 663 and to submit the following certifications with its Proposal.

19.2 Buy America Requirements. Vendor shall complete and submit a declaration certifying either compliance or noncompliance with Buy America. If the Vendor certifies compliance with Buy America, it shall submit documentation which lists (i) component and subcomponent parts to be purchased identified by manufacturer of the parts, their country of origin and costs; and (lil) Ication of the final assembly point, including a description of the activities that will take place at the final assembly point and the cost of final assembly.

19.3 Solicitation Specification Requirements. The Vendor shall submit evidence that it will be capable of meeting the proposal specifications.

20. SPECIFICATION AND OFFER OMISSIONS.

Notwithstanding the provision of drawings, technical specifications, or other data by the City, the Vendor shall have the responsibility of supplying all parts and details required to make the project complete and ready for service even though such details may not be specifically mentioned in the drawings and specifications. Fare collection equipment, communication equipment, and other items that are installed by the City shall not be the responsibility of the Vendor unless they are included in this Agreement. Any request, condition, exception, reservation, understanding or other deviation by Vendor not separately stated as required by "Instructions to Offerors" by completing the specified forms) shall be invalid and shall not be binding on the City. (The Compliance Matrix format provided hereunder by Siemens is assumed to meet the specified form requirement.)

21. MISCELLANEOUS PROVISIONS.

21.1 Omitted.

21.2 Mutual Responsibility of Vendors. If, through an act or omission on the part of the Vendor, any other Vendors or any Subcontractor shall suffer any loss or damage, the Vendor agrees to settle with such other Vendor or Subcontractor by agreement or arbitration if such other Vendor or Subcontractor will so settle. If such other Vendor or Subcontractor shall assert any claim against the City on account of any damage alleged to have been sustained, the City shall notify the Vendor, who shall indemnify and save harmless the City against any such claim.

21.3 Subcontracting. The Vendor may utilize the services of specialty Subcontractors on those parts of the work which, under normal contracting practices, are performed by specialty Subcontractors provided the Vendor shall in no way be released from its obligations contained herein. No subcontract entered into shall impose any obligation or liability upon the City to the Vendor. - 39 -
FLATTYMUNIcontracEM BIG BLUE BUSSiemens!FINAL.DOC
The Vendor shall not award any work to any Subcontractor other than those identified in the Vendor's accepted proposal without prior written approval of the City, pursuant to a written statement concerning the proposed award to the Subcontractor, and such other information as the City may require.

The Vendor shall be as fully responsible to the City for the acts and omissions of his subcontracts, and of persons either directly or indirectly employed by the Subcontractor, as he is responsible for the acts and omissions of persons directly employed by him.

The Vendor shall cause appropriate provisions to be inserted in all subcontracts relative to the work to bind Subcontractors to the Vendor by the terms of the General Conditions and other Agreement documents insofar as applicable to the work of Subcontractors and to give the Vendor the same power as regards termination any subcontract that the City may exercise over the Vendor under any provision of the contract documents.

Nothing contained in this Agreement shall create any contractual relationship • between any Subcontractor and the City.

21.4 Use of Premises and Removal of Debris.

The Vendor expressly undertakes at his own expense:
!
(i) To take every precaution against injuries to persons or damage to property;
(ii) To store his apparatus, materials, supplies and equipment in such orderly. fashion at the site of the work as will not unduly interfere with the progress of his work or of the work of any other Vendors; (iii) To clean up frequently all rubbish and scrap materials caused by his operations, such that at all times the site of the work shall present a neat, orderly and workmanlike appearance;
(iv) Before final payment to remove all surplus material, plant of any description and rubbish of every nature resulting from his operations, and to put the site in a neat, orderly condition;
- 40-
FATTY MUNTcontract EMBIG BLUE BUS SiemensiFINAL DOC

21.5 Conflicting Conditions. Where any provision in any of the contract documents conflicts or is inconsistent with another provision therein which cannot be resolved with the order of precedence, the language in the provision must give reasonable meaning to all parts of the contract and not render portions of the contract meaningless. The contract documents shall be read and interpreted so as to be in harmony with each other.

21.6 Interpretation of Specifications. In the event of conflict or misunderstanding in any way of any part of the specifications, the City shall be the sole judge as to the true meaning and intent of the specifications. The City's decisions shall be final.

Should this decision not be a mutually agreeable resolution, the Disputes process set forth under Section 2.24 may be invoked by either party.

21.7 Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another. Neither the City nor its officers or employees shall have any control over the conduct of Vendor or any of Vendor's agents, employees, or sub- consultants, except as otherwise provided herein. Both parties agree that this

22. EXHIBITS.

The following Exhibits shall be incorporated as a term of this Agreement:

Exhibit 1 City's Request for Proposal up through and
including Addendum Ill
Exhibit 2 Vendor's Proposal for the Advanced Fleet
Management System dated February 11, 2002
Exhibit 3 Vendor's Final Negotiated Best And Final Offer Pricing dated April 15, 2003
Exhibit 4 (a) - (c) Deliverables Lists
(a) Trapeze Software Pricing dated September
19,2002;
(b) Deliverables List Final Negotiation BAFO
List dated February 18, 2003; and
(c) Milestone Billing Schedule dated
May 5, 2003;
- 41 -
FLATTYMUNIcostracEMBIG BLUE BUSSiemens FINAL.DOC
Exhibits 5(a) through 5(i) Vendor Proposal Documentation (a) Vendor's Responses to Additional
Information Request dated May 29, 2002;
(b) Vendor's Responses to City dated March 22,
vendor's Responses to City dated April 29,
(c)
vendor's Responses to Action Items dated
(d)
January 6, 2003;
(e) Radio Site Design dated March 3, 2003;
(f) Antenna Site Deliverables List dated March
26,2003;
(g) Clarification of ILG comments for testing
methodology for data communications dated
March 26, 2003;
(h) Vendor's Staffing Proposal; and
(i) GPRS Solution and Revised Pricing for
Santa Monica Big Blue Bus dated April 10,
2003;
Exhibits 6(a) through 6(d) Presentation Technical Materials (a) Informational Brief for Senior Transit
Management;
(b) Advanced Fleet Management System:

Presentation Material;
(c) TransitMaster: TM Annunciator Studio
dated March 1, 2002;
(d) TransitMaster: TMSurvey Tool dated
January 11, 2002; and
(e) Transit Master: TM Route Manger dated
January 11, 2002.

Exhibit 7 Vendor's Performance Bond
/I/
||I
/1I
- 42-
FATTYIMUNNcontrac/EMBIG BLUE BUS!Siemens FINAL.DOC
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written.

CITY OF SANTA MONICA,
a municipal corporation
By: SUSANE CAL
City Manager

APPROVED AS TO FORM

MARSHA JONES MOUTRIE
City Attorney
ATTEST:
stanchez
aty Cler

SIEMENS TRANSPORTATION SYSTEMS, INC,
a Delaware corporation
By:_
Its:
- 43-
FATTYIMUNIcontracEMBIG BLUE BUS SiemensiFINAL DOC
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written.

CITY OF SANTA MONICA,
a municipal corporation
By: _
SUSAN E. MCCARTHY
City Manager

APPROVED AS TO FORM

MARSHA JONES MOUTRIE
City Attorney
ATTEST:

MARIA STEWART
City Clerk

SIEMENS TRANSPORTATION SYSTEMS, INC,
a Delaware corporation
By Any Tomac by CAK
Its:
-43-
PATTYIUNN contrad EMBIG BLUE BUS Siemens FINAL DOC

Santa Monica City CouncilMay 10, 2022

Santa Monica City Council
May 10, 2022