TRAN2343.SR Remix.JK
CITY OF SIMI VALLEY
MEMORANDUM
N
ovember 13, 2023
TO
: City Council
F
ROM: Department of Public Works
S
UBJECT: AWARD OF CONTRACT TO REMIX TECHNOL OGIES LLC FOR
PLANNING AND SCHEDULING SOFTWARE LICE NSES FOR FIXED
ROUTE BUS SERVICE; RATIFICATION OF SERVICES PERFORMED
FROM SEPTEMBER 1, 2023 TO THE CONTRACT EXECUTION;
AUTHORIZE THE CITY MANAGER OR HIS DESIGNEE TO APPROVE
SUBSEQUENT CONTRACT AMENDMENTS AND APPROVAL OF A
SUPPLEMENTAL BUDGET REQUEST IN THE TRANSIT FUND (FUND
750) AND LOCAL TRANSPORTATION FUND (FUND 238) WITH AN
INTER-FUND TRANSFER
STAFF RECOMMENDATION
It i
s recommended that the City Council:
1. Aw
ard the attached contract (page 5) to Remix Technologies LLC for planning and scheduling software licenses for fixed route bus service for $40,500 for a three- year term from September 1, 2023 to August 31, 2026. Ratify services performed from September 1, 2023, through the date of the contract execution and utilize scheduling software license to participate in the Cal-ITP pilot study for four (4) months from September 1, 2023, to December 31, 2023;
2. Aut
horize the City Manager or his designee to approve any subsequent contract amendments and incorporate future budgeted funds into the contract and to extend the contract by up to two (2) additional one-year terms in accordance with the contract terms; and
3. Appr
ove a supplemental budget request in the transit fund (Fund 750) for $20,250 and the required local match of $20,250 from the California Transportation Development Act (TDA ) Local Transportation Fund (Fund 238) and approve an inter-fund transfer of $20,250 from Fund 238 to Fund 750.
BACKGROUND AND OVERVIEW
S
imi Valley Transit (SVT) has utilized Remix Technologies, LLC’s (Remix) planning software since 2018 to support fixed -route bus service. The planning software plans service routes and route restructuring to meet the rider’s needs. The unique AGENDA ITEM NO.
Consent (5)
TRAN2343.SR Remix.JK
features include customization of Geographic Information System (GIS) data layers and route buffers and the ability to draw route lines to c alculate actual operating costs and review demographics to conduct the Title Vl analysis, reporting required by the Federal government. The prior agreement expired on August 31, 2023, and SVT would like to purchase an additional three (3) years of planning software services.
In addition, SVT was selected among other small transit agencies for a California Integrated Travel Project (Cal-ITP) for a Remix Scheduling software pilot study that will assist Cal -ITP’s goal to subsidize Remix scheduling for all California transit agencies. It is a statewide project to help improve transit customer experience, increase ridership, lower transportation costs for transit providers and riders, and reach environmental targets. Cal -ITP is supported by the California State Transportation Agency (CalSTA) and the California Department of Transportation (Caltrans). The pilot program is for four (4) months, from September 1, 2023 to December 31, 2023, with no cost to the City.
Remix is a sole source vendor due to a “Unique or Innovative Concept.” It demonstrates a unique or innovative concept or capability that is unavailable from another source because it offers a new, novel, or changed concept, approach, or method that is the product of original thinking, the details of which are kept confidential or are patented or copyrighted, as is available to the recipient only from one source and has not in the past been available to the City from another source. SVT’s experience with Remix has been satisfactory since 2018.
FINDINGS AND ALTERNATIVES
The Federal Transit Administration (FTA) requires agencies to conduct a cost analysis for sole-source procurements, including assessing the products' cost and benefits. Staff obtained a proposal to perform a cost analysis of three (3) transit agencies using Remix planning software to ensure the pricing of this contract is consistent with current industry standards and to affirm product satisfaction among agencies. Please see the table below for the survey results.
The average annual price fluctuates due to different beginning contract dates and other software, such as scheduling software, purchased as a bundle. SVT ’s contract contains only the planning software cost . Although SVT's cost is slightly higher than other agencies, it is within a reasonable range. Overall product satisfaction and support services are "4" and "5" on a scale of 1 to 5, with "5" being the most satisfactory. 2 TRAN2343.SR Remix.JK
SVT's experience with Remix's software and support service has been positive since 2018. The cost analysis above reflects reasonable pricing and affirms product satisfaction among agencies. Additionally, as the State is looking to utilize Remix for all California transit agencies, SVT will be able to participate in the evaluation and provide realistic feedback based on the results achieved.
Previously, Remix licenses were funded through the Capital Projects budget , however, as the implementation phase for the project was completed, the Remix license should be included as part of the operating expense . Therefore, a supplemental budget request is needed to fund future licenses. SVT funding is provided through State and Federal grants.
The following alternatives are available to the City Council:
1. Award the attached contract (page 5) to Remix Technologies LLC for $40,500 for the purchase of a planning software license for a three-year term from September 1, 2023, through August 31, 2026 , ratify service performed from September 1, 2023 , through contract execution, and to utilize scheduling software license to participate in Cal -ITP pilot study for four (4) months from September 1, 2023, through December 31, 2023;
2. Authorize the City Manager or his designee to approve any subsequent contract amendments to incorporate future budgeted funds into the contract amount and to extend the contract by up to two (2) additional one-year terms in accordance with the contract terms;
3. Approve a Supplemental Budget Request in the transit fund (Fund 750) for $20,250 and the required local match of $20,250 from the California Transportation Development Act (TDA) Local Transportation Fund (Fund 238) and approve an inter-fund transfer of $20,250 from Fund 238 to Fund 750.
4. Provide other direction to staff.
Staff recommends Alternative Nos. 1, 2, and 3.
SUGGESTED CITY COUNCIL MOTION
I move to award a contract to Remix Technologies, LLC for planning software and scheduling software licenses for fixed route bus service for $40,500 , ratify service s performed from September 1, 2023, through contract execution , authorize the City Manager or his designee to approve subsequent contract amen dments to incorporate future budgeted funds into the contract for two (2) additional one- year term s in accordance with the contract terms and approve a Supplemental Budget Request in the Transit Fund (Fund 750) for $20,250 and the required local match of $20,250 from the 3 TRAN2343.SR Remix.JK
California Transportation Development Act (TDA) in the Local Transportation Fund (Fund 238) and approve the inter-fund transfer of $20,250 from Fund 238 to Fund 750.
SUMMARY
SVT seeks City Council approval to award a contract to Remix Technologies , LLC for planning software and scheduling software license for fixed route bus service for $40,500 for a three-year term, ratify services performed from September 1, 2023, through contract execution, authorize the City Manager or his designee to approve any subsequent contract amendments incorporating future budgeted funds and extending the contract up to two (2) additional one-year terms; and approve a Supplemental Budget Request in the Transit Fund (Fund 750) for $20,250 and required local match of $20,250 from the California Transportation Development Act (TDA) in the Local Transportation Fund, (Fund 238) and approve an inter-fund transfer of $20,250 from Fund 238 to Fund 750. ___
_________________________________
Ronald K. Fuchiwaki
Public Works Director
P
repared by: Tan Koehler, Senior Management Analyst
INDEX Page
C
ontract ............................................................................................ 5 4 CONTRACT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF SIMI VALLEY AND REMIX
TECHNOLOGIES, LLC FOR PLANNING SOFTWARE
AND SCHEDULING SOFTWARE LICENSES FOR FIXED
ROUTE BUS SERVICE
THIS CONTRACT is made and entered into in the City of Simi Valley on this 13th day of November, 2023, retroactively effective to September 1, 2023 (the “Effective Date”) by and between, the CITY OF SIMI VALLEY, a municipal corporation, hereinafter referred to as CITY, and RE MIX TECHNOLOGIES LLC, a Delaware corporation, hereinafter referred to as CONSULTA NT or “Remix”, each a “Party” and collectively, “Parties”.
RECITALS
WHEREAS, CONSULTANT provides software for f ixed route bus s ervice, and CITY wishes to purchase a Planning Software License from CONSULTANT; and WHEREAS, on May 31, 2023, the City received a proposal from the CONSULTANT for four (4) months from September 1, 2023 through December 31, 2023 for a pilot study of Scheduling Software conducted by the CONSULTANT and the California Integrated Travel Project (Cal -ITP) (the “Pilot”). The study will assess the functionality and effectiveness of the CONSULTANT’S scheduling software and help Cal- ITP make funding decisions to support transit operations; and WHEREAS, the City now desires for CONSULTANT to provide the Scheduling Software License to participate in the Pilot conducted by the CONSULTANT and the California Integrated Travel Project (Cal-ITP).
NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows:
AGREEMENT
1. Recitals. The foregoing recitals are true and correct and are a part of this CONTRACT.
2. Term. The term of this CONTRACT shall be from the Effective Date to August 31, 2026. Services performed between September 1, 2023 and the execution of this CONTRACT are hereby ratified and may be billed by the C ONSULTANT, This CONTRACT may be extended for two (2) additional one-year terms at the sole discretion of the CITY.
3. Description o f S ervices. The services t o be performed by CONSULTANT are as follows:
TRAN2343.CON.JD
5 TRAN2343.CON.JD
CONSULTANT agrees to perform the services more specifically set forth in the “Scope of Work” attached hereto and incorporated herein as Exhibit “A.”
4. Software Use Rights. Subject to all the terms and conditions of this CONTRACT, and in consideration of the covenants and representations set forth herein, CONSULTANT grants to the CITY a non- exclusive, non- transferable right and subscription use rights (with no right to sublicense) to the Remix Software (hereinafter “Remix Software”, “Remix Solution” or “Software”) described in detail in Exhibit “B” attached hereto and incorporated herein during the term (the "License”). These rights are granted solely under the conditions contained herein, and the CITY accepts such grant.
The subscription term is set forth in Section 2 above. The use rights of the Software may not be assigned by the CITY, without the prior written consent of the CONSULTANT. The use rights, the Remix Software, and Software documentation (“Documentation”) may not be disclosed, sublicensed, published, released, or transferred to another Party by the CITY without the prior written consent of CONSULTANT, or except as provided in this CONTRACT or the License, or by reason of law required of the CITY by State regulations.
CITY will not, and will not permit any Authorized User or other Party to: (a) allow any third Party to access the Remix Software, License Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Remix Software, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer, or otherwise allow the use of the Remix Software or Documentation for the benefit of any unauthorized third P arty; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) or nonpublic APIs of the Remix Software, except as permitted by law; (e) interfere in any manner with the operation of the Remix Software of the hardware and network used to operate the Remix Software; (f) modify, copy or make derivative works based on any part of the Remix Software or Documentation; (g) access or use the Remix Software to build a similar or competitive product or service; (h) attempt to access the Remix Software through any unapproved interface; or (i) otherwise use the Remix Software, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted above or in a manner inconsistent with applicable law, the Documentation, or this CONTRACT.
Customer acknowledges and agrees that the Remix Software will not be used, and is not license for use, in connection with any CITY’s time- critical or mission -critical functions.
CITY will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Remix or its licensor on the Licensed Material or any copies thereof.
5. Compensation and Payment.
A. The total compensation payable to CONSULTANT by CITY for services under this CONTRACT shall not exceed $40,500 (the “Not-To-Exceed Limit”) for the initial term of this CONTRACT with a total not-to-exceed amount of $72,500 should extension(s) be exercised by the parties in writing, and shall be paid upon the execution of this CONTRACT. Payment will be made based on the rates contained in the “Schedules of Fees” as set forth in Exhibit “C” attached and incorporated herein.
CONSULTANT acknowledges that CONSULTANT is not guaranteed to receive the Not - To-Exceed Amount or any particular or minimum amount of compensation or work under this CONTRACT.
6 TRAN2343.CON.JD
B. CITY shall be obligated to pay CONSULTANT based upon the actual CITY authorized services received by CITY at the rates established as a part of this CONTRACT. In no event shall the total amount paid exceed the CONTRACT Not- to-Exceed Amount unless otherwise agreed to by the parties in writing.
C. Payments to the CONSULTANT shall be made within 30
days after receipt of an original invoice from the CONSULTANT.
6. CONSULTANT’s Representations and Obligations.
A. CONSULTANT shall perform as required by this
CONTRACT. CONSULTANT also warrants on behalf of itself and all subcontractors engaged for the performance of this CONTRACT that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder.
B. CONSULTANT shall obey all Federal, State, local, and special district laws, ordinances, and regulations.
C. CONSULTANT acknowledges CITY may contract with other parties for the performance of services or supplemental services as they relate to the work during the term of this CONTRACT.
7. Audit.
A. At any time during normal business no more than once per year and with fourteen (14) days’ prior written notice, CONSULTANT shall make available to CITY for inspection its records pertaining to this CONTRACT. CONSULTANT shall permit CITY to audit, examine and/or reproduce such records. CONSULTANT will retain such financial records, time sheets, work progress reports, invoices, bills, and, project records for at least three (3) years after termination or final payment under this CONTRACT. This paragraph shall survive for three (3) years after termination of this CONTRACT.
B. CITY shall have the option of inspecting and/or auditing all records and other written materials used by CONSULTANT in preparing its statements to CITY as a condition precedent to any payment to CONSULTANT.
8. Hold Harmless and Indemnification. CONSULTANT shall
defend, indemnify, and hold harmless CITY, its agents, officials, officers, representatives, and employees, from and against all claims, lawsuits, liabilities or damages of whatever nature arising out of (a) any third party alleging that the CONSULTANT’s Software infringes the intellectual property rights of such third party (“Infringement Claim”), (b) any third party claims of bodily injury to persons, including death, due to negligence or willful misconduct of CONSULTANT’s employees, or (c) any third party claim for damage to property due to the negligence or willful misconduct of CONSULTANT or its employees.
The CONSULTANT shall have no obligation to indemnify or defend any claims related solely to the actions, misconduct or negligence of the CITY, its agents, 7 TRAN2343.CON.JD
officials, officers, representatives, and employees. In addition, to the foregoing which also applies to CONSULTANT’s obligation to indemnify and defend any Infringement Claims, CONSULTANT shall have no obligation to indemnify or defend the CITY, its agents, officials, officers, representatives, and employees from any Infringement Claims where such claims are due to (a) any use or modification of the Software in a manner not approved by CONSULTANT or in violation of any Software specifications, (b) the combination of the Software with any other software or equipment not approved by CONSULTANT for which such combination is the cause of such Infringement Claim.
The CONSULTANT obligation to indemnify under this CONTRACT is subject to the following conditions:
a) Prompt notice must be given by the CITY to the CONSULTANT of any claims that the CITY is requesting the CONSULTANT to indemnify or defend;
b) The CONSULTANT can select an attorney in its sole discretion to defend such proceeding and the CONSULTANT will control any litigation thereof;
c) The CONSULTANT shall also have control over the settlement of any claim and litigation provided that the CONSULTANT shall not agree to any settlement without the consent of the CITY, such consent not to be unreasonably withheld. No consent of the CITY will be required where the settlement does not impose any liability, payments, costs or admission on behalf of the CITY.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES,
REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY,
BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR
DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY
SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO
APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY
CONNECTED TO THIS CONTRACT WILL NOT EXCEED THE FEES PAID BY THE CITY TO THE CONSULTANT DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL CONSULTANT’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS CONTRACT. NOTHING IN THIS CONTRACT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF A PARTY OF ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
This section 8 shall survive the termination of this CONTRACT.
9. Amendments. Any amendment, modification, or variation from the provisions of this CONTRACT shall be in writing and shall be effective only upon mutual 8 TRAN2343.CON.JD
written approval by the Director of Public Works and CONSULTANT except that any changes to the Contract amount and term of the CONTRACT shall be effective only upon mutual written approval by the City Manager or his designee, and CONSULTANT.
10. Anti-Discrimination. In the performance of the terms of this CONTRACT, CONSULTANT shall not engage in, nor permit subcontractors to engage in, discrimination in employment of persons because of the age, race, color, religious creed, sex, sexual orientation, national origin, ancestry, physical disability, mental disability, medical condition, or marital status of such persons. Violation of this provision may result in the imposition of penalties referred to in Labor Code Section 1735.
11. Termination. For greater certainty, the parties agree that the termination provisions in this section 11 apply and take precedence over the termination sections listed in Exhibit “E” attached hereto, unless not permitted under the Federal Requirements.
(A) Termination for Default
If during the term of this CONTRACT, CITY determines that CONSULTANT has breached any term or condition contained in this CONTRACT, CITY may notify CONSULTANT in writing of such defect or breach. The notice must give to the CONSULTANT a sixty (60) days period thereafter in which to perform the work of cure the deficiency. If CONSULTANT has not performed the work or cured the deficiency within sixty (60) days specified in the notice, such failure shall constitute a breach of this CONTRACT, and CITY may terminate this CONTRACT immediately by written notice to CONSULTANT.
If, during the term of this CONTRACT, CONSULTANT determines that CITY has breached any term or condition contained in this CONTRACT, CONSULTANT may notify CITY in writing of suc h defect of breach. The notice must give to the CITY a sixty (60) days period thereafter in which to perform the work or cure the deficiency. If CITY has not performed the work or cured the deficiency within thirty (30) days specified in the notice, such f ailure shall constitute a breach of this CONTRACT, and CONSULTANT may terminate this CONTRACT immediately by written notice to CITY.
The CITY shall be liable to the CONSULTANT only for those fees accrued by the CONSULTANT up to and including the date of termination. In no event, however, shall CONSULTANT be entitled to receive in excess of the CONTRACT amount.
12. Delivery of Reports in Cases of Termination . If this CONTRACT is terminated pursuant to any of the provisions contained hereinabove, and if requested to do so in writing by the CITY, the CONSULTANT shall, within fourteen (14) calendar days after receipt of such written request, deliver and turn over to the CITY all of its preparation and work on the project which were done to the date of the receipt of the notice of termination. The terms "preparation" and "work" as used in this paragraph, shall refer to and include all data and materials of whatever type that have been provided by CITY to CONSULTANT or reports or results generated by CITY in the provision of the services as specified in this CONTRACT
.
9 TRAN2343.CON.JD
13. Complete CONTRACT. This CONTRACT and its accompanying exhibits shall constitute the complete CONTRACT between the parties hereto. The order of precedence shall be first this CONTRACT and next the Exhibits, from highest to lowest priority. No verbal agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such verbal agreement, understanding, or representation be binding upon the parties hereto.
14. Independent Contractor. It is expressly understood between the parties to this CONTRACT that no employee/employer relationship is intended.
CONSULTANT is not an agent or employee of the CITY and it is not entitled to participate in any pension plan, insurance or other benefits CITY provides for its employees.
CONSULTANT is an independent contractor in performing the Services required under this CONTRACT and will have control of all work and the manner in which it is performed.
Any provision of this CONTRACT that may appear to give CITY the right to direct CONSULTANT as to the details of doing the work required herein or to exercise a measure of control over the work means that the CONSULTANT will follow the direction of the CITY as to the results of the work only.
15. Time of Performance. Time is of the essence in this CONTRACT.
16. Insurance. CONSULTANT shall, at CONSULTANT’S sole cost and expense, provide insurance as contained in Exhibit “ D”, incorporated herein.
CONSULTANT shall not commence work on the Services to be performed, until it submits proof of all insurance coverage as required.
17. Ownership of Reports and Data. The originals of all studies, reports, exhibits, documents, data and other work or materials generated by CITY through the use of the Remix Software, plus any copies of same required by this CONTRACT to be furnished to the CITY by any of the other party(ies) with whom the CONSULTANT may have contract(s) pertaining to this project, shall be deemed to be public records open to inspection by the public unless marked as confidential or unless exempt from disclosure in accordance with the applicable public records act and, as such, to be and remain the property of the CITY. CONTRACTOR will have a right to use content, data and information provided to Remix by or on behalf of CITY in order to provide the services or improve CONSULTANT’s product offering.
Notwithstanding anything to the contrary in this CONTRACT, CONSULTANT owns all intellectual property rights in and to the deliverables, Software, and associated Documentation, including any and all customizations and derivatives works derived from the Software, provided by CONSULTANT to the CITY under this Contract. Nothing in this CONTRACT transfers or assigns any rights, titles or interests in or to the Software of Documentation from CONSULTANT to the CITY.
18. FTA Third-Party Contract Clauses. CONSULTANT shall comply with all Federal Transit Administration (FTA) requirements as outline in Exhibit “E,” attached hereto and incorporated herein (“Federal Requirements”) . The FTA requirements must be added to this CONTRACT pursuant to federal requirements. As between the Parties, CONSULTANT represents that the verification required by section 10 TRAN2343.CON.JD
“Debarment and Suspension” of Exhibit “E” is “to the best of its knowledge,” to the extent legally permissible. Further, the Parties agrees that this CONTRACT is not for experimental, developmental of for research purposes. Therefore, the parties believe that the section related to Patent Rights and Rights in Exhibit “E” is not applicable to the CONTRACT.
19. Conflict of Interest. Neither CONSULTANT nor any employees, agents, or subcontractors of CONSULTANT who will be assigned to this project, to the best of CONSULTANT'S knowledge, own any property or interest in properties, business relationships, or sources of income which may be affected by the performance of this CONTRACT. Should one P arty hereto learn of any such interest, income source, or business relationship, such fact shall immediately be brought to the attention of the other Party hereto. If the Parties thereupon cannot mutually agree upon a means to eliminate the conflict, CITY may terminate the CONTRACT immediately for non- performance pursuant to Section 11 herein.
In accordance with California Government Code Section 87306, CONSULTANT shall provide, if requested by CITY, a Conflict -of-Interest Statement, Form 700 no later than thirty (30) days after execution of this CONTRACT, and annually thereafter prior to April 1st of each year for the duration of the CONTRACT. Failure to file any of the required statements will result in withholding payment for services rendered.
20. Successors and Assigns. The terms hereof shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto; provided, however, that no Party hereto shall assign any of the benefits and burdens hereunder, whether voluntarily or by operation of law, without the prior written consent of the other Party, and any such assignment without said consent shall be void.
21. Authority to Execute CONTRACT. Both CITY and CONSULTANT do covenant that each individual executing this CONTRACT on behalf of each Party is a person duly authorized and empowered to execute contracts for such Party.
22. Jurisdiction and Venue. Jurisdiction is in an appropriate court in the State of California and venue lies in Ventura County, and the parties do not consent to arbitration. In the event of any dispute, each Party shall bear its own fees and costs (including attorneys’ fees). This CONTRACT shall be governed by California law, without regard to conflict of law principles.
23. Non-Appropriation of Funds . Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this CONTRACT shall cover only those costs incurred up to the conclusion of the current fiscal year.
24. Taxpayer Identification Number . CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, form W-9 (latest revision), as issued by the Internal Revenue Service. 11 TRAN2343.CON.JD
25. Permits and Licenses. CONSULTANT, at its sole cost and expense, shall obtain and maintain during the term of this CONTRACT, all appropriate permits, licenses, and certificates that may be required in connection with the performance of this CONTRACT.
26. Waivers. The waiver by one Party of any term or condition of this CONTRACT, or any breach thereof, shall not be construed to be a general waiver by the Party or as a waiver of any other term or breach.
27. Statement of Experience. CONSULTANT warrants that it will perform its Services with at least the due care, diligence and expertise generally accepted in its industry. CONSULTANT also understands and agrees that it is being employed to perform the Services provided for by this CONTRACT because of CONSULTANT’S professed expertise and experience in performing such Services. In addition, CONSULTANT understands and agrees that while CITY or CITY’S officers, employees, agents or volunteers may elect to do so, they have no duty to review, inspect, monitor, or supervise the work performed by CONSULTANT pursuant to this CONTRACT. As a consequence, CONSULTANT waives any right of contribution against CITY or any of CITY’S officers, employees, agents, or volunteers arising out of such failure to ins pect, review, monitor, or supervise the work performed by CONSULTANT pursuant to this CONTRACT.
28. Notices. All written notices required by, or related to this CONTRACT shall be sent by Certified Mail, Return Receipt Requested, postage prepaid and addressed as listed below. Neither Party to this CONTRACT shall refuse to accept such mail; the Parties to this CONTRACT s hall promptly inform the other Party of any change of address. All notices required by this CONTRACT are effective on the day of receipt, unless otherwise indicated herein. The mailing address of each P arty to this CONTRACT is as follows:
CITY Department of Public Works
City of Simi Valley
2929 Tapo Canyon Road, Simi Valley, CA 93063
Attn: Ben Gonzales, Deputy Public Works Director (Transit)
CONSULTANT Remix Technologies LLC
114 5th Ave, Floor 17 New York, NY 10011
Attn: General Counsel
[email protected]
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IN WITNESS WHEREOF, the Parties hereto have caused this CONTRACT to be executed the day and year first above written.
Attest: City of Simi Valley, A Municipal Corporation
________________________________ By: _______________________________ Lucy Blanco, City Clerk Brian Paul Gabler, City Manager
Approved as to Form: Remix Technologies, LLC
__________________________________ By: ______________________________ Algeria R. Ford, City Attorney
Print Name: Dillon Twombly___________
Approved as to Content: Title:
Vice President________________
______________________________ By: _______________________________ Johanna Medrano,
Deputy Administrative Services Director Print Name:
Erin Abrams______ _______
(Budget & Purchasing)
Title: Secretary_
Ronald K. Fuchiwaki,
Public Works Director
13 TRAN2343.CON.JD
EXHIBIT “A”
SCOPE OF WORK
CONTRACT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF SIMI VALLEY AND REMIX
TECHNOLOGIES, LLC FOR PLANNING SOFTWARE
AND SCHEDULING SOFTWARE LICENSES FOR FIXED
ROUTE BUS SERVICE
Planning Software Subscription
Remix is entirely web-based and software-as-a-service (SaaS). Everything is in the cloud – no installations or download. User can access from anywhere. • Fast and accurate sketch planning using existing stop infrastructure • Instant demographic impact analysis
• Instant cost estimates
• Unlimited exports (Excel, shapefile, KML, frequency -based GTFS, high-resolution image)
• Unlimited custom data layers (polygon-based shapefiles) • Unlimited GTFS uploads
• Public engagement and share features
• Travel-time isochrones visualizations
• Title VI Engine (US) – generate a service equity analysis in less than 10minutes
• Timetables – generate and customize timepoints and segment -level runtimes
• Export timetables to Excel
• Consistent and regular product improvement / feature launches • U nlimited number of users within organization
• Platform functionality as described with continuous improvements released throughout the course of the contract
• Dedicated Customer Success staff
• Premium Enterprise Support: response to requests in 1 business day The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation.
Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime 14 TRAN2343.CON.JD
lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under the CONTRACT.
Scheduling Software Pilot Case Study
The pilot study will assess the feasibility and effectiveness of the scheduling software which will assist the California Integrated Travel Project (Cal-ITP) in making funding decisions. The software supports the following functions:
• Interactive blocking to finalize vehicle assignments
• Unlimited excel reports for daily vehicles assignments, driver assignments, and roster-style bidding
• Dynamic run cutting interface for multiple schedule generation • Optimization for peak bus count, costs, overtime, straight runs, and/or crew count
• Operator and labor-friendly schedules
• Cafeteria/roster-style bidding with intuitive and informational bid sheets for operators
• Relief-vehicle logistics
• Easy to read, detailed printable paddles for operators • Customizable timepoints to keep operators on schedule • GTFS export for mobile rider applications
• Integration with a variety of AVL and farebox systems , including Syncromatics, AVAIL, Double Maps, and Transdev VDS
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EXHIBIT “B”
SOFTWARE USE RIGHTS
CONTRACT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF SIMI VALLEY AND REMIX
TECHNOLOGIES, LLC FOR PLANNING SOFTWARE
AND SCHEDULING SOFTWARE LICENSES FOR FIXED
ROUTE BUS SERVICE
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“Licensed Material” means any reports or results generated by Customer as part of the Services. Licensed Material does not include the Remix Solution or any component thereof.
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EXHIBIT “C”
SCHEDULE OF FEES
CONTRACT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF SIMI VALLEY AND REMIX
TECHNOLOGIES, LLC FOR PLANNING SOFTWARE
AND SCHEDULING SOFTWARE LICENSES FOR FIXED
ROUTE BUS SERVICE
Planning Software Fee
Year Term Price
1 September 1, 2023 to August 31, 2024 $12,000.00 2 September 1, 2024 to August 31, 2025 $13,500.00 3 September 1, 2025 to August 31, 2026 $15,000.00 Subtotall $40,500.00
Renewal - Optional:
Year Term Price
4 September 1, 2026 to August 31, 2027 $16,000.00 5 September 1, 2027 to August 31, 2028 $16,000.00 Subtotall $32,000.00
TOTAL $72,500.00
Scheduling Software Fee
The pilot study of the scheduling software shall not incur any costs. 19 TRAN2343.CON.JD
EXHIBIT “D”
INSURANCE REQUIREMENTS
CONTRACT FOR PROFESSIONAL SERVICES BETWEEN
THE CITY OF SIMI VALLEY AND REMIX TECHNOLOGIES,
LLC FOR PLANNING SOFTWARE AND SCHEDULING
SOFTWARE LICENSES FOR FIXED ROUTE BUS
SERVICE
o
Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. Consultant shall procure and maintain for the duration of the contract insurance against claims for security breaches, system failures, injuries to persons, damages to software, or damages to property (including computer equipment) which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. Consultant shall procure and maintain for the duration of the contract insurance claims arising out of their services and including, but not limited to loss, damage, theft or other misuse of data, infringement of intellectual property, invasion of privacy and breach of data.
Minimum Scope and Limit of Insurance Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non- owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. Consultant hereby certifies that i t is aware of the provisions of Section 3700 et seq., of the Labor Code, which require every employer to be insured against liability for Workers' Compensation.
4. Professional Liability (Errors and Omissions) Insurance appropriate to the Consultant’s profession, with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate. The Policy shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the City in the care, custody, or control of the Consultant. If not covered under the Consultant’s liability policy, such “property” coverage
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of the City may be endorsed onto the Consultant’s Cyber Liability Policy as covered property.
5. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Consultant in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses.
If the Consultant maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Other Insurance Provisions - The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City of Simi Valley, it’s Boards, Officers, Agents, Officials, employees, and volunteers are to be covered as additional insureds on the CGL policy 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. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this project/contract, the Consultant’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City of Simi Valley, its Boards, Officers, Agents, Officials, employees, and volunteers. Any insurance or self -insurance maintained by the City of Simi Valley, its Boards, Officers, Agents, Officials, employees, and volunteers shall be excess of the Consultant’s insurance and shall not contribute with it.
Notice of Cancellation
Consultant shall for each insurance policy required by the insurance provisions of this Contract shall not be suspended, voided, or canceled except after providing thirty (30) days prior written notice been given to the City, except when cancellation is for non- payment of premium, then ten (10) days prior notice may be given. Such notice shall be sent directly to the attention of the City’s Risk Management Department. Should Consultant fail to provide City timely notice, Consultant will be considered in breach of this contract.
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Umbrella or Excess Policy
The Consultant may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non- contributory, additional insured, Self -Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Consultant’s primary and excess liability policies are exhausted.
Waiver of Subrogation
Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Consultant, its employees, agents and sub-contractors.
Self-Insured Retentions
Self-insured retentions above $100,000 must be declared to and approved by the City.
The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown, and this date must be befo re the execution date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of the contract of work.
3. If coverage is canceled or non- renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective, or start of work date, the Consultant must purchase extended reporting period coverage for a minimum of three (3) years after completion of contract work.
4. A copy of the claims reporting requirements must be submitted to the City for review.
Verification of Coverage
Consultant shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting 22 TRAN2343.CON.JD
coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that the City of Simi Valley is an additional insured on insurance required from subcontractor. For CGL coverage, subcontractor shall provide coverage with a form at least as broad as CG 20 38 04 13.
Duration of Coverage
CGL & Excess liability policies for any construction related work, including, but not limited to, maintenance, service, or repair work, shall continue coverage for a minimum of 3 years for Completed Operations liability coverage. Such Insurance must be maintained and evidence of insurance must be provided for at least three (3) years after completion of the contract of work.
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EXHIBIT “E”
REQUIRED FEDERAL TRANSIT ADMINISTRATION (FTA) THIRD-
PARTY CONTRACT CLAUSES
CONTRACT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF SIMI VALLEY AND REMIX
TECHNOLOGIES, LLC FOR PLANNING SOFTWARE
AND SCHEDULING SOFTWARE LICENSES FOR FIXED
ROUTE BUS SERVICE
o
This project is being funded by Federal Transit Administration (FTA). Accordingly, the following third-party contract clauses are applicable to all contracts. Federal requirements apply to this contract and if those requirements change then the most recent requirements shall apply to the project as required.
ACCESS TO RECORDS AND REPORTS
a. Record Retention. The Contractor will retain, and will require its subcontractors of all tiers to retain, complete and readily accessible records related in whole or in part to the contract, including, but not limited to, data, documents, reports, statistics, leases, subcontracts, arrangements, other third party contracts of any type, and supporting materials related to those records.
b. Retention Period. The Contractor agrees to comply with the record retention requirements in accordance with 2 C.F.R. § 200.334. The Contractor shall maintain all books, records, accounts and reports required under this Contract for a period of at not less than three (3) years after the date of termination or expiration of this Contract, except in the event of litigation or settlement of claims arising from the performance of this Contract, in which case records shall be maintained until the disposition of all such litigation, appeals, claims or exceptions related thereto.
c. Access to Records. The Contractor agrees to provide sufficient access to FTA and its contractors to inspect and audit records and information related to performance of this contract in accordance with 2 CFR § 200.337.
d. Access to the Sites of Performance. The Contractor agrees to permit FTA and its contractors access to the sites of performance under this contract in accordance with 2 CFR § 200.337.
CIVIL RIGHTS LAWS AND REGULATIONS
The following Federal Civil Rights laws and regulations apply to all contracts.
1. Federal Equal Employment Opportunity (EEO) Requirements.
These include, but are not limited to:
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a) Nondiscrimination in Federal Public Transportation Programs. 49 U.S.C. § 5332, covering projects, programs, and activities financed under 49 U.S.C. Chapter 53, prohibits discrimination on the basis of race, color, religion, national origin, sex (including sexual orientation and gender identity), disability, or age, and prohibits discrimination in employment or business opportunity.
b) Prohibition against Employment Discrimination. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and Executive Order No. 11246, “Equal Employment Opportunity,” September 24, 1965, as amended, prohibit discrimination in employment on the basis of race, color, religion, sex, or national origin.
2. Nondiscrimination on the Basis of Sex.
Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681 et seq. and implementing Federal regulations, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” 49 C.F.R. part 25 prohibit discrimination on the basis of sex.
3. Nondiscrimination on the Basis of Age.
The “Age Discrimination Act of 1975,” as amended, 42 U.S.C. § 6101 et seq., and Department of Health and Human Services implementing regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45
C.F.R. part 90, prohibit discrimination by participants in federally assisted programs against individuals on the basis of age. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Equal Employment Opportunity Commission (EEOC) implementing regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, also prohibit employment discrimination against individuals age 40 and over on the basis of age.
4. Federal Protections for Individuals with Disabilities.
The Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. § 12101 et seq., prohibits discrimination against qualified individuals with disabilities in programs, activities, and services, and imposes specific requirements on public and private entities. Third party contractors must comply with their responsibilities under Titles I, II, III, IV, and V of the ADA in employment, public services, public accommodations, telecommunications, and other provisions, many of which are subject to regulations issued by other Federal agencies.
Civil Rights and Equal Opportunity
The City of Simi Valley is an Equal Opportunity Employer. As such, the City of Simi Valley agrees to comply with all applicable Federal civil rights laws and implementing regulations. Apart from inconsistent requirements imposed by Federal laws or regulations, the City of Simi Valley agrees to comply with the requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded by FTA to support procurements using exclusionary or discriminatory specifications. Under this Contract, the Contractor shall at all times comply with the following requirements and shall include these requirements in each subcontract entered into as part thereof.
Nondiscrimination.
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In accordance with Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, disability, or age. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue.
1. Race, Color, Religion, National Origin, Sex.
In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. chapter 60, and Executive Order No. 11246, "Equal Employment Opportunity in Federal Employment," September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, or sex (including sexual orientation and gender identity). Such action shall include, but not be limit ed to, the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
2. Age.
In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any Implementing requirements FTA may issue.
3. Disabilities.
In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
4. Promoting Free Speech and Religious Liberty.
The Contractor shall ensure that Federal funding is expended in full accordance with the US Constitution, Federal Law, and statutory and public policy requirements:
including, but not limited to, those protecting free speech, religious liberty, public welfare, the environment, and prohibiting discrimination.
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CONFORMANCE WITH ITS NATIONAL ARCHITECTURE
Intelligent Transportation Systems (ITS) projects shall conform to the National ITS Architecture and standards pursuant to 23 CFR § 940. Conformance with the National ITS Architecture is interpreted to mean the use of the National ITS Architecture to develop a regional ITS architecture in support of integration and the subsequent adherence of all ITS projects to that regional ITS architecture. Development of the regional ITS architecture should be consistent with the transportation planning process for Statewide and Metropolitan Transportation Planning (49 CFR Part 613 and 621).
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
It is the policy of the City of Simi Valley and the United States Department of Transportation ("DOT") that Disadvantaged Business Enterprises ("DBE’s"), as defined herein and in the Federal regulations published at 49 C.F.R. part 26, shall have an equal opportunity to participate in DOT-assisted contracts.
The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 C.F.R. part 26 in the award and administration of DOT- assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the City of Simi Valley deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments; (2) Assessing sanctions; (3) Liquidated damages; and/or (4) Disqualifying the contractor from future bidding as non-responsible. 49 C.F.R. § 26.13(b).
Prime contractors are required to pay subcontractors for satisfactory performance of their contracts no later than thirty (30) days from receipt of each payment the City of Simi Valley makes to the prime contractor. 49 C.F.R. § 26.29(a). Finally, for contracts with defined DBE contract goals, the City of Simi Valley must include in each prime contract a provision stating that the contractor shall utilize the specific DBEs listed unless the contractor obtains the City of Simi Valley’s written consent; and that, unless the City of Simi Valley’s consent is provided, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE. 49 C.F.R. § 26.53(f) (1).
ENERGY CONSERVATION
The contractor 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.§ 6201).
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EQUAL EMPLOYMENT OPPORTUNITY
During the performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regar d to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contrac ting officer setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response t o a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
(4) The contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, 28 TRAN2343.CON.JD
and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the contractor's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
NOTICE TO THIRD PARTY PARTICIPANTS
Federal requirements that apply to the Recipient or the Award, the accompanying Underlying Agreement, and any Amendments thereto may change due to changes in federal law, regulation, other requirements, or guidance, or changes in the Recipient’s Underlying Ag reement including any information incorporated by reference and made part of that Underlying Agreement; and
Applicable changes to those federal requirements will apply to each Third Party Agreement and parties thereto at any tier.
FLY AMERICA
a) Definitions. As used in this clause—
1) “International air transportation” means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States.
2) “United States” means the 50 States, the District of Columbia, and outlying areas.
3) “U.S.-flag air carrier” means an air carrier holding a certificate under 49 U.S.C.
Chapter 411.
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b) When Federal funds are used to fund travel, Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 U.S.C. 40118) (Fly America Act) requires contractors, Agencies, and others use U.S. -flag air carriers for U.S.
Government- financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available. It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign- flag air transportation, to disallow expenditures f rom funds, appropriated or otherwise established for the account of the United States, for international air transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services.
c) If available, the Contractor, in performing work under this contract, shall use U.S.- flag carriers for international air transportation of personnel (and their personal effects) or property.
d) In the event that the Contractor selects a carrier other than a U.S.-flag air carrier for international air transportation, the Contractor shall include a statement on vouchers involving such transportation essentially as follows:
Statement of Unavailability of U.S.-Flag Air Carriers
International air transportation of persons (and their personal effects) or property by U.S.- flag air carrier was not available or it was necessary to use foreign-flag air carrier service for the following reasons. See FAR § 47.403. [State reasons]:
e) Contractor shall include the substance of this clause, including this paragraph (e), in each subcontract or purchase under this contract that may involve international air transportation.
FEDERAL TAX LIABILITY AND RECENT FELONY CONVICTIONS
(1) The contractor certifies that it:
a) Does not have any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability; and
b) Was not convicted of the felony criminal violation under any Federal law within the preceding 24 months.
If the contractor cannot so certify, the City of Simi Valley will refer the matter to FTA and not enter into any Third Party Agreement with the Third Party Participant without FTA’s written approval.
(2) Flow-Down. The City of Simi Valley agrees to require the contractor to flow this requirement down to participants at all lower tiers, without regard to the value of any sub-agreement.
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INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS The provisions within include, in part, certain Standard Terms and Conditions required under the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR § 200), whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, detailed in 2 CFR § 200 or as amended by 2 CFR § 1201, or the most recent version of FTA Circular 4220.1 are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Contract. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any request which would cause a violation of the FTA terms and conditions.
NO GOVERNMENT OBLIGATION TO THIRD PARTIES
The City of Simi Valley and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to City of Simi Valley, the Contractor or any other party (whether or not a party to that contract) pertaining to any matter resulting from this underlying Contract.
The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by the FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.
PATENT RIGHTS AND RIGHTS IN DATA
Intellectual Property Rights
This Project is funded through a Federal award with FTA for experimental, developmental, or research work purposes. As such, certain Patent Rights and Data Rights apply to all subject data first produced in the performance of this Contract.
The Contractor shall grant the City of Simi Valley intellectual property access and licenses deemed necessary for the work performed under this Contract and in accordance with the requirements of 37 C.F.R. part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by FTA or U.S. DOT.
The terms of an intellectual property agreement and software license rights will be finalized prior to execution of this Contract and shall, at a minimum, include the following restrictions:
Except for its own internal use, the Contractor may not publish or reproduce subject data in whole or in part, or in any manner or form, nor may the Contractor authorize others to do so, without the written consent of FTA, until such time as FTA may have either released or approved the release of such data to the public. This restriction on publication, however, does not apply to any contract with an academic institution.
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For purposes of this Contract, the term “subject data” means recorded information whether or not copyrighted, and that is delivered or specified to be delivered as required by the Contract. Examples of “subject data” include, but are not limited to computer software, standards, specifications, engineering drawings and associated lists, process sheets, manuals, technical reports, catalog item identifications, and related information, but do not include financial reports, cost analyses, or other similar information used for performance or administration of the Contract.
(1) The Federal Government reserves a royalty-free, non- exclusive and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use for “Federal Government Purposes,” any subject data or copyright described below. For “Federal Government Purposes,” means use only for the direct purposes of the Federal Government. Without the copyright owner’s consent, the Federal Government may not extend its Federal license to any other party.
a) Any subject data developed under the Contract, whether or not a copyright has been obtained; and
b) Any rights of copyright purchased by the Contractor using Federal assistance in whole or in part by the FTA.
(2) Unless FTA determines otherwise, the Contractor performing experimental, developmental, or research work required as part of this Contract agrees to permit FTA to make available to the public, either FTA’s license in the copyright to any subject data developed in the course of the Contract, or a copy of the subject data first produced under the Contract for which a copyright has not been obtained. If the experimental, developmental, or research work, which is the subject of this Contract, is not completed for any reason whatsoever, all data developed under the Contract shall become subject data as defined herein and shall be delivered as the Federal Government may direct.
(3) Unless prohibited by state law, upon request by the Federal Government, the Contractor agrees to indemnify, save, and hold harmless the Federal Government, its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any willful or intentional violation by the Contractor of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under that contract. The Contractor shall not be required to indemnify the Federal Government for any such liability arising out of the wrongful act of any employee, official, or agents of the Federal Government.
(4) Nothing contained in this clause on rights in data shall imply a license to the Federal Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Federal Government under any patent.
(5) Data developed by the Contractor and financed entirely without using Federal assistance provided by the Federal Government that has been incorporated into 32 TRAN2343.CON.JD
work required by the underlying Contract is exempt from the requirements herein, provided that the Contractor identifies those data in writing at the time of delivery of the Contract work.
(6) The Contractor agrees to include these requirements in each subcontract for experimental, developmental, or research work financed in whole or in part with Federal assistance.
PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND
RELATED ACTS
The Contractor 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. Upon execution of the underlying contract, the Contractor 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 contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further 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 of 1986 on the Contractor to the extent the Federal Government deems appropriate.
The Contractor 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 a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. chapter 53, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5323(l) on the Contractor, to the extent the Federal Government deems appropriate.
The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions.
PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO
SURVEILLANCE SERVICES OR EQUIPMENT.
a) Recipients and sub-recipients are prohibited from obligating or expending loan or grant funds to:
1. Procure or obtain;
2. Extend or renew a contract to procure or obtain; or
3. Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or 33 TRAN2343.CON.JD
as critical technology as part of any system. As described in Public Law 115- 232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
i. For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company(or any subsidiary or affiliate of such entities).
ii. Telecommunications or video surveillance services provided by such entities or using such equipment.
iii. Telecommunications or video surveillance equipment or services procured or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
b) In implementing the prohibition under Public Law 115-232, section 889, subsection (f), paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.
c) See Public Law 115-232, section 889 for additional information.
d) See also § 200.471.
PROMPT PAYMENT
The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than thirty (30) days after the contractor’s receipt of payment for that work. In addition, the contractor is required to return any retainage payments to those subcontractors within thirty (30) days after the subcontractor's work related to this contract is satisfactorily completed.
The contractor must promptly notify the City of Simi Valley, whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of the City of Simi Valley.
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SAFE OPERATION OF MOTOR VEHICLES
Seat Belt Use
The Contractor is encouraged to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company-owned vehicles, company rented vehicles, or personally operated vehicles. The terms “company-owned” and “company-leased” refer to vehicles owned or leased either by the Contractor or Agency.
Distracted Driving
The Contractor agrees to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while using an electronic device supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns, leases, or rents, or a privately -owned vehicle when on official business in connection with the work performed under this Contract.
SPECIAL NOTIFICATION REQUIREMENTS FOR STATES
Applies to States –
a. To the extent required under federal law, the State, as the Recipient, agrees to provide the following information about federal assistance awarded for its State Program, Project, or related activities:
(1) The Identification of FTA as the federal agency providing the federal assistance for a State Program or Project;
(2) The Catalog of Federal Domestic Assistance Number of the program from which the federal assistance for a State Program or Project is authorized; and
(3) The amount of federal assistance FTA has provided for a State Program or Project.
b. Documents - The State agrees to provide the information required under this provision in the following documents:
(1) applications for federal assistance,
(2) requests for proposals or solicitations,
(3) forms,
(4) notifications,
(5) press releases, and
(6) other publications.
SEVERABILITY
The Contractor agrees that if any provision of this agreement or any amendment thereto is determined to be invalid, then the remaining provisions thereof that conform to federal laws, regulations, requirements, and guidance will continue in effect.
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TERMINATION
Termination for Convenience (General Provision)
The City of Simi Valley may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the City of Simi Valley’s best interest.
The Contractor shall be paid its costs, including contract close-out costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the City of Simi Valley to be paid the Contractor. If the Contractor has any property in its possession belonging to City of Simi Valley, the Contractor will account for the same, and dispose of it in the manner the City of Simi Valley directs.
Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the City of Simi Valley may terminate this contract for default. Termination shall be effected by serving a Notice of Termination on the Contractor setting forth the manner in which the Contractor is in default.
The Contractor will be paid only the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the City of Simi Valley that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the City of Simi Valley, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a Termination for Convenience.
Opportunity to Cure (General Provision)
The City of Simi Valley will, in the case of a termination for breach or default, allow the Contractor 60 days in which to cure the defect. In such case, the Notice of Termination will state the time period in which cure is permitted and other appropriate conditions.
If Contractor fails to remedy to City of Simi Valley's satisfaction the breach or default of any of the terms, covenants, or conditions of this Contract within sixty (60) days after receipt by Contractor of written notice from the City of Simi Valley setting forth the nature of said breach or default, the City of Simi Valley shall have the right to terminate the contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude the City of Simi Valley from also pursuing all available remedies against Contractor and its sureties for said breach or default.
Waiver of Remedies for any Breach
In the event that City of Simi Valley elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this contract, such waiver by the City of Simi Valley shall not limit the City of Simi Valley’s remedies for any succeeding breach of that or of any other covenant, term, or conditions of this contract.
Termination for Convenience (Professional or Transit Service Contracts) The City of Simi Valley, by written notice, may terminate this contract, in whole or in part, 36 TRAN2343.CON.JD
when it is in the City of Simi Valley’s interest. If this contract is terminated, the City of Simi Valley shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination.
Termination for Default (Supplies and Service)
If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension, or if the Contractor fails to comply with any other provisions of this contract, the City of Simi Valley may terminate this contract for default. The City of Simi Valley shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. The Contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner or performance set forth in this contract. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the City of Simi Valley.
Termination for Default (Transportation Services)
If the Contractor fails to pick up the commodities or to perform the services, including delivery services, within the time specified in this contract or any extension, or if the Contractor fails to comply with any other provisions of this contract, the City of Simi Valley may terminate this contract for default. The City of Simi Valley shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of default.
The Contractor will only be paid the contract price for services performed in accordance with the manner of performance set forth in this contract.
If this contract is terminated while the Contractor has possession of the City of Simi Valley goods, the Contractor shall, upon direction of the City of Simi Valley, protect and preserve the goods until surrendered to the City of Simi Valley or its agent. The Contractor and the City of Simi Valley shall agree on payment for the preservation and protection of goods. Failure to agree on an amount will be resolved under the Dispute clause.
If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the City of Simi Valley.
Termination for Default (Construction)
If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will ensure its completion within the time specified in this contract or any extension or fails to complete the work within this time, or if the Contractor fails to comply with any other provision of this contract, City of Simi Valley may terminate this contract for default. The City of Simi Valley shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. In this event, the City of Simi Valley may take over the work and compete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the City of Simi Valley resulting from the Contractor's refusal or failure to complete the work within specified time, whether or not the
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Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the City of Simi Valley in completing the work.
The Contractor's right to proceed shall not be terminated nor shall the Contractor be charged with damages under this clause if: 1. the delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include: acts of God, acts of City of Simi Valley, acts of another contractor in the performance of a contract with the City of Simi Valley, epidemics, quarantine restrictions, strikes, freight embargoes; and 2. The Contractor, within ten [10] days from the beginning of any delay, notifies the City of Simi Valley in writing of the causes of delay. If, in the judgment of City of Simi Valley, the delay is excusable, the time for completing the work shall be extended. The judgment of the City of Simi Valley shall be final and conclusive for the parties, but subject to appeal under the Disputes clause(s) of this contract. 3. If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the City of Simi Valley.
Termination for Convenience or Default (Architect and Engineering) The City of Simi Valley may terminate this contract in whole or in part, for the City’s convenience or because of the failure of the Contractor to fulfill the contract obligations. The City of Simi Valley shall terminate by delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the City‘s Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this contract, whether completed or in process. The City of Simi Valley has a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, all such data, drawings, specifications, reports, estimates, summaries, and other information and materials.
If the termination is for the convenience of the City of Simi Valley, the City’s Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services. If the termination is for failure of the Contractor to fulfill the contract obligations, the City of Simi Valley may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the City. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the City.
Termination for Convenience or Default (Cost-Type Contracts) The City of Simi Valley may terminate this contract, or any portion of it, by serving a Notice of Termination on the Contractor. The notice shall state whether the termination is for convenience of City of Simi Valley or for the default of the Contractor. If the termination is for default, the notice shall state the manner in which the Contractor has failed to perform the requirements of the contract. The Contractor 38 TRAN2343.CON.JD
shall account for any property in its possession paid for from funds received from the City, or property supplied to the Contractor by the City of Simi Valley. If the termination is for default, the City of Simi Valley may fix the fee, if the contract provides for a fee, to be paid the Contractor in proportion to the value, if any, of work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the City of Simi Valley and the parties shall negotiate the termination settlement to be paid the Contractor.
If the termination is for the convenience of the City of Simi Valley, the Contractor shall be paid its contract close-out costs, and a fee, if the contract provided for payment of a fee, in proportion to the work performed up to the time of termination.
If, after serving a Notice of Termination for Default, the City of Simi Valley determines that the Contractor has an excusable reason for not performing, the City of Simi Valley, after setting up a new work schedule, may allow the Contractor to continue work, or treat the termination as a Termination for Convenience.
TRAFFICKING IN PERSONS
The contractor agrees that it and its employees that participate in the City of Simi Valley’s Award, may not:
(a) Engage in severe forms of trafficking in persons during the period of time that the City of Simi Valley’s Award is in effect;
(b) Procure a commercial sex act during the period of time that the City of Simi Valley’s Award is in effect; or
(c) Use forced labor in the performance of the City of Simi Valley’s Award or sub- agreements thereunder.
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