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HomeMy WebLinkAboutResolution - 2001-R0238 - Professional Services Contract - Mentor Engineering - 06/14/2001Resolution No. 2001-RO238 June 14, 2001 Item No. 65 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Contract between the City of Lubbock and Mentor Engineering for the complete installation and training for the Mobile Data Communication System (MDCS), and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 14th day of June , 2001. ATTEST: Rebe.-,ca Garza City Secretary APPROVED AS TO CONTENT: Richard Burdine Assistant City Manager APPROVED AS TO FORM: William de Haas Contract Manager/Attorney Dh/Ccdoes/Men torEngineerin g.res June 1, 2001 TO: Mentor Engineering 60914th Street N.W. Suite 503 Calgary, Alberta Canada T2N-2A1 Invoice To: Citibus P.O. Box 2000 Lubbock, TX 79457 Resolution No. 2001—RO238 June 14, 2001 Item No. 65 Purchase Order Page 1 Date 6/15/2001 Order No. 2001-1CA Ship To: Citibus 801 Texas Ave Lubbock, Texas 79401 Ordered Reference RFP # 01-21501 ............................... ........... ............................................. Requested............................................................................. Placed. B� ......................... Tommy Hibdon 806-767-2380. ext. 249...................................................... GL # DESCRIPTION UNITS QTY COST TOTAL ----------------------------------------------------------------------- Mobile Data Communication System EA 1-------, 199,995 199,995 TAXABLE: N TOTALS 199,995.00 This purchase order encumbers funds in the amount of $199,995 for a RFP awarded to Mentor Engineering on June 15, 2001 in accordance with your response to RFP # 01-21501, MDCS. The following are incorporated into and made part of this purchase order by reference: RFP submitted by your firm including the including the Contract, Proposal Form; Specifications, and General Conditions of RFP # 01-21501. Ci of Lubbock 444 V Indy Sitton, ayor Approved as to Form: illiam de Haas Competition and Contract Manager Attest: Rebecca Garza, City Secretary A roved to ontent: ichard Burdine, Assistant City Manager Resolution No. 2001-80238 June 14, 2001 Item No. 65 RFP # 01-21501 City Transit Management Company / Citibus This contract made of the fifteenth day of June, 2001, by and between; Mentor Engineering Inc., with its place of business at Suite 503, 609 14 Street NW, Calgary, Alberta, Canada, T2N 2A1, hereafter referred to as "Mentor" and City Transit Management Company, with its place of business at 801 Texas Avenue, Lubbock, Texas 79401, hereafter referred to as "Citibus". 1. Both Mentor and Citibus acknowledge and agree that this Contract and all of its relevant attachments is to set out the Terms and Conditions by which the Statements of Work, sale and implementation of equipment, software, software interface, and services provided by Mentor will be governed. 2. The following Terms and Conditions and all its attachments were based on infomiation provided to Mentor from Citibus at the time of a proposal being issued. Any equipment, software and/or services that go beyond the original quotation may be subjected to an amended quotation. 3. The Statement of Work that is referenced throughout this Contract is a document that is generated and provided by Mentor. 1. Equipment, Sof wam & Semces a. Citibus agrees to purchase from Mentor and Mentor agrees to sell to Citibus the equipment, software and/or services listed in Attachment A and as further defined in the Statement of Work. b. Pricing and delivery of equipment, software and/or services in Attachment A is in American dollars and does not include relevant taxes, shipping and shipping related charges, import duties, local installation and any and all applicable taxes. All equipment, software and any other materials required for the scope of the project will be shipped FOB Calgary. C. The Implementation Phase listed in the Statement of Work Attachment B does riot include travel and living expenses incurred. If on site technical services are required, Citibus agrees to pay for any and all travel and living expenses as incurred by Mentor personnel working on the MDCS project d. Mentor agrees to sell to Citibus for the MDCS project, additional equipment, software and/or services at the unit price listed in Attachment A for a period of one year after execution of this Contract Mentor will provide a 90 -fay written notice to any changes to the pricing schedule. e. Any particular labeling or identification markings required by Citibus, its agents, sub -contractors or dient(s), is the sole responsibility of Citibus and any costs related thereto. FA 3. Initial Acceptance a. Citibus accepts the functionality of the equipment, software and/or services produced by Mentor upon the execution of this Contract not withstanding any changes specifically listed in the Statement of Work or approved change orders. 4. Payment Terris a. Payment of all invoicing from Mentor is the sole responsibility of Citibus. b. Citibus will pay to Mentor 25% of the total costs in Attachment A upon execution of this Contract Receipt of prepayment is necessary before any work can begin on this Contract or any of its relevant attachments. C., A separate invoice will be issued for each of the shipments made for equipment, software and/or services as listed in Attachment A with 10% holdback and prepayments deducted. d. All Mentor invoicing is due and payable net 30 days. Overdue amounts will incur interest at the rate of 1.5% per month (18% per annum). e. At the conclusion of the Project Completion Phase, Mentor will issue a final invoice that will be 10% of the total cost in Attachment A. f. If Citibus has special invoicing and/or formatting requirements, this information must be submitted in writing to Mentor upon the execution of this Contract. g. Mentor faxes all invoicing. Mentor will consider the terms of net 30 days to begin the following working day after the fax has been sent An original of the invoice will follow in the mail. h. Failure to pay any or all of the invoices submitted by Mentor could result in suspension of the project, the withholding of further products and/or services or the cancellation of this Contract and all of its relevant attachments. 5. Title a. Title does not transfer from Mentor to Citibus and/or its clients until Mentor has received full payment for any equipment supplied by Mentor. 6. Disputes a. Any and all disputes that arise in the course of the MDCS project can follow any and/or all of the following 3 courses: Settlement - A first attempt will be made to settle any dispute between the 2 Parties of Mentor and Citibus internally in a timely fashion. ii) Arbitration — Should any dispute not be settled between the 2 Parties, of Mentor and Citibus, either Party can request and be granted the right of arbitration. Such requests must be in writing and submitted to the other Party within 3 working days after failure of 6.a.i. Arbitration will be held in a convenient location with both Parties paying equally the costs of arbitration. The decision arrived at by arbitration shall be binding upon all the Parties to the arbitration and no appeal shall lie therefrom. iii) Court of Law — Should arbitration fail, either Party may proceed with a court action with all the available remedies to the court of competent jurisdiction. The costs of any court action will be the responsibility of each Party. 3 b. Once a dispute for each individual issue has been resolved using any of the above listed remedies, no other action, regardless of its form, shall be brought by either Party. C. Mentor may, at its discretion, continue to perform further tasks as described in the Statement of Work during a dispute. 7. Suspension of Contract or Statement of Work a. A suspension of a Statement of Work or this Contract and all of its relevant attachments will be issued in writing to or from Citibus. The suspension will not exceed 6 months from date of notification of suspension. Should the suspension go beyond the 6 -month time period, this Contract and all relevant attachments will be deemed to be cancelled and all cancellation clauses in Cancellation of Contract section of this Terms and Conditions will apply. A suspension of this Contract and/or Statement of Work cannot be issued or granted when the project enters the Project Completion Phase. b. If Citibus or Mentor wishes to re -activate this Contract and/or Statement of Work within the 6 -month period, Citibus or Mentor must submit its request in writing to the other party. The project will then be rescheduled based on both Citibus and Mentor's current work agenda. A new project time line must be created and agreed to by both parties. C. Once a Contract and/or Statement of Work has been suspended, both Mentor and Citibus shall comply with the suspension. Mentor and Citibus shall take all prudent steps to minimize costs incurred during the suspension period. If the suspension goes beyond 30 days, Mentor will invoice all equipment, software and/or services that have been supplied to Citibus up to and including the date of suspension. 8. Cancellation of Contract(Statement of Work a. Citibus may cancel this Contract at any time prior to the start of the Pilot Phase by providing to Mentor in writing 10 days before the actual date of cancellation commences the reasons for cancellation. Mentor may upon receipt of notice at its discretion attempt to rectify the issues specified in the notice of cancellation. Failure of Mentor to respond to Citibus with a course of action acceptable to Citibus within the 10 working days specified will not constitute an extension and/or revocation of the cancellation notice. Any equipment, software and/or services that have been provided to, or purchased for Citibus by Mentor and/or Mentor's subcontractors, up to and including the date of cancellation, will be paid to Mentor in full by Citibus net 30 days. b. Mentor will provide to Citibus in writing 10 working days before the actual date of cancellation the reasons for cancellation. Citibus may upon receipt of notice at its discretion attempt to rectify the issues specified in the notice of cancellation. Failure of Citibus to respond to Mentor with a course of action acceptable to Mentor within the 10 working days specified will constitute an extension and/or revocation of the cancellation notice. Citibus will also take all prudent steps to minimize costs incurred up to and including the date of cancellation. C. Any outstanding invoices up to and including the date of cancellation, will be due and payable net 30 days.. d. Mentor reserves the right upon cancellation of this Contract by either Mentor or Citibus to work directly with Citibus dients to complete a Statement of Work. Cancellation of Contract and/or Statement of Work by Mentor may be as a result of but not limited to: (i) Non-payment of invoicing Lack of or faulty performance Misrepresentation (iv) Breach of terms, conditions and/or responsibilities in this Contract and/or the Statement of Work. 4 9. Compensation Upon Breach of Contract a. Upon breach by Mentor, Mentor agrees to pay to Citibus the cost of the Mentor manufactured equipment and/or hardware provided to Citibus from Mentor up to and including the date of breach. Any equipment and/or hardware that have been provided to Citibus and Citibus has been compensated for said equipment and/or hardware, will be shipped back to Mentor, at Mentor's expense. No other compensation or remedies will be available from Mentor. b. Upon breach by Citibus, Citibus agrees to pay to Mentor any equipment, software and/or services that have been provided to, or purchased for Citibus by Mentor and/or Mentor's subcontractors, up to and including the date of breach. ,An invoice will be created for said amount. 10. Force Majeure a. Neither Party shall be liable to the other for any failure to perform any obligations under this agreement due to cases which are beyond either Party's reasonable control and of a nature which neither Party has the power or authority to remedy, including without limitation, acts of god, acts of civil or military disturbances, fires, floods, epidemics, wars, and riots. In the event of such an occurrence, the Party claiming relief thereon shall give prompt written notice thereof to the other Party and any time for performance of an obligation shall be extended by time equal to the length of delay attributable to such occurrence. 11. Severability a. If any provision or part of any provision in this Contract and any of its relevant attachments is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction such provision will be severable therefrom and the remainder thereof will be construed as if the invalid, illegal, unenforceable provision or part thereof has been deleted therefrom. 12. Liability a. Mentor's entire liability and responsibility for any and all claims, damages or losses arising from the use of the hardware and/or software manufactured by Mentor under this Contract shall be absolutely limited to the amount(s) of the software and/or hardware costs. b. Notwithstanding any provision contained here, Mentor shall be liable for any indirect, consequential, special, incidental or contingent damages or expenses, whether in Contract, Tort (including negligence) or otherwise, arising in any way out of this Contract its relevant attachments, the software, hardware or Mentors performance or lack thereof under this Contract, including without limiting the generality of the foregoing, loss of revenue, profit, or use. 13. Indemnification a. To the fullest extent permitted by applicable law, Mentor agrees to indemnify, defend and hold harmless Citibus, at Mentor's expense, against any and all claims, suits, actions, judgements, fines, penalties, loss, damage, costs or expenses, whether direct or indirect, due to the equipment and/or software produced by Mentor infringes a valid patent or copyright. Mentor will also pay all costs, damages, and attorney's fees that a court awards as a result of such claim, to the limit of Mentor's liability as determined by the court. Mentor's duties under this section are conditional upon the following: i) Citibus shall give to Mentor written notice of any actual or threatened claims within 15 days. ii) Mentor shall have full control of the defense of any claim and of all negotiations for the settlement or compromise of such claims. iii) Citibus shall cooperate with Mentor in the defense or settlement of any claims after the approval of the Lubbock Transit Advisory Board and City Council. 5 iv) Citibus and/or its end user did not modify in any form, without Mentor's written consent, the equipment and/or software produced by Mentor. 14. Contract Term a. This Contract is valid for a 1 -year period from date of execution of this Contract, except for payment terms, which shall endure until all outstanding invoicing has been fulfilled. b. Upon Contract expiration, Mentor reserves the right to renew or renegotiate this Contract in part or in its entirety. 15. Confidentiality a. Citibus agrees to sign and abide by all the terms and conditions set out in Mentor's Non -disclosure Agreement. The Non -disclosure Agreement must be signed and returned to Mentor on or before the execution of this Contract. 16. Contract General a. No provision of this Contract shall be varied unless in writing signed by and agreed to by Mentor and Citibus. b. Mentor shall not be responsible for its performance of obligations and such obligations shall automatically be suspended as a result of, delays beyond Mentor's reasonable control or the delay or non-performance of Citibus, it's employees, agents, any of its subcontractors and/or client(s). C. This Contract, or any of the rights or obligations of Mentor created herein, may be assigned by Mentor, but this Contract and all of its relevant attachments is for the sole benefit of Citibus and may not be assigned by Citibus without the express written consent of Mentor which will not be unreasonably withheld. d. The Parties acknowledge and agree that Mentor is engaged by Citibus as an independent contractor and this Contract does not create a relationship between the Parties that of employer and employee, principal and agent, partner or joint venture. e. The covenants, conditions and provisions of this Contract and all of its relevant attachments, which are capable of having effect after the expiration or cancellation of this Contract, shall remain in full force and effect following the expiration of this Contract. f. Any discrepancies in shipment quantities/descriptions, must be submitted in writing to Mentor within 5 working days after receipt of goods. 17. Statement of Work a. Upon full execution of this Contract Citibus, its agents, subcontractors, and/or clients shall provide all requisite materials, equipment, resources, and/or personnel to perform the tasks as it relates to Citibus' obligations in the Statement of Work. Any work performed by Citibus, its employees, agents, subcontractors, and/or clients will be performed in accordance with industry standards and abiding by all applicable local, state, and/or federal labor regulations as well as all Health and Occupational Safety regulations. b. Citibus acknowledges that time is critical in the performance of the Statement of Work. In the event of a delay in the implementation of services, equipment and/or software by Mentor due to acts or omissions by Citibus, its employees, subcontractors, agents and/or client(s), shall not constitute a delay in Mentor's performance and/or payment to Mentor. C. Flow down terms from the contract between Citibus and its client(s) must be provided as a separate attachment to the Statement of Work titled "Flow Down Attachment'. If there are no flow downs, the attachment must indicate such. In case of any conflict between the terms of the attached Statement of Work and the Contract executed between Citibus and irs dient(s), the Statement of Work will take precedence. L d. Each phase and/or objective of the project may require a sign -off by Citibus and Mentor to indicate the successful completion of that phase and/or as it relates to the equipment, software, and/or services provided by Mentor. The next phase of the project will only proceed after Mentors project manager has received and agreed with the sign -off for the preceding phase. e. Should any of the milestones not be reached on schedule, the delivery schedule of the remaining equipment, software and/or services will be reassessed and may need to be rescheduled. f. To clarify roles, Mentor will provide a list of duties for Citibus. This list is not intended to be a complete list and in no way limits the responsibility of Citibus in the implementation and completion of the Mobile Data Communications system. g. Citibus will assign a suitable key technical contact who will be responsible for organizing conference calls, distributing project updates to Mentor, follow up and/or resolution of outstanding issues, and any other tasks as necessary to complete the Statement of Work in its entirety. h. Should Citibus' key technical contact be negligent in their duties, Mentor reserves the right, upon agreement of Mentor and Citibus, for Mentor to either provide these services at Mentors prevailing rate or to request and approve a substitute key technical contact from Citibus. i. Citibus must provide written notice within the Project Completion Phase any aspect of the Statement of Work that Mentor has purportedly not fulfilled. Mentor will endeavor to correct the identified issue(s) in a timely fashion and will provide an extension to the free support period. Failure to report in writing to Mentor any deficiencies that are found in the Project Completion Phase will not constitute non-acceptance of goods and services provided by Mentor in the Statement of Work. j. Mentor shall adhere to requirements in the original RFP regarding successful interface with Citibus' existing dispatch/scheduling software. Mentor shall complete, in cooperation with Multisystems, all required software interface solutions required for the MDCS interface with MIDAS PT software under the terms and conditions expressed in the proposal submitted by Mentor. k. Mentor will provide Citibus any and all testing data of the City of Lubbock's 800 megahertz Ericsson Radio System and will inform Citibus of any negative impact that the MDCS installation will have on the radio system. Mentor will assure Citibus and the City of Lubbock Information Technology Department that the results of all testing are accurate and the installation of the MDCS product will not disrupt the City of Lubbock's Ericsson radio operations. Failure of the City of Lubbock's radio system to safely handle the MDCS product during testing will result in termination of the contract. Testing of the product's impact on the radio system will be conducted no later than 30 days after the execution of this contract. Mentor shall coordinate with Citibus and the City of Lubbock's information technology department to arrange an acceptable date and time for testing. Should it be necessary to make modifications to the scope of the Statement of Work that was not contained in the original quote, Citibus must make this request in writing to Mentor by way of a change order. Mentor will review such requests and determine whether the requested changes the scope of work significantly to warrant a revised cost and time line summary. Revised costs and time line summaries are submitted to Citibus for approval. While Mentor is reviewing modification requests, Mentor or Citibus may, at their discretion place the project on hold. M. Requests for system add-ons and/or modifications will be based on the following terms: i) All terms and conditions of this Contract will apply. ii) Additional units may affect system capacity, performance, the mobile application software in the MDC, and/or the host application. Any engineering, equipment, software, and/or services required for the system add-on will be billed to Citibus at Mentor's prevailing hourly rate. 7 18. Software Maintenance & System Support a. Software Maintenance & System Support will begin after all of the equipment, software, and/or services listed in Mentor's Proposal and as defined in the Statement of Work have been shipped and/or provided to Citibus. The first 60 days of the Software Maintenance & System Support is free of charge and also known as the `Project Completion Phase" in the Statement of Work. b. Mentor will provide Software Maintenance & System Support to Citibus under a yearly plan. The yearly plan includes an annual fee that provides a warranty on the XGate software package. See Mentor's Proposal for a detailed description of the Software Maintenance & System Support. Invoices for Software Maintenance & System Support are issued directly to atibus. 19. Extended Warranty a. Mentor manufactured equipment is subject to Mentors standard warranty. b. Citibus may elect to purchase the extended warranty at any time before the completion of the end of the System Rollout phase at the pricing listed in Mentor's proposal. The extended warranties are for a maximum of 4 years. C. Mentor acknowledges and agrees that Citibus shall receive the benefit of all warranties in respect of the equipment and/or software that Mentor specifically manufactures. In addition, Citibus will be provided with documentation, which relates to the software and/or equipment in the form of a System Binder. 20. 3rd Party Equipment a. Any 3"' party equipment that is supplied by Mentor will come with the OEM warranty. If the OEM offers extended warranties or additional services Citibus will be apprised of those options. Mentor does not supply additional warranty to OEM products. 8 a. Citibus acknowledges having read and understood this Contract and all of its relevant attachments, agrees to be bound by its terms and conditions. Citibus also agrees that this Contract represents the complete and exclusive Contract between Mentor and Citibus with respect to the subject matter hereof and supersedes all prior contracts, negotiations, discussions, or understandings between them in any way relating thereto. No other terms, conditions, representations, warranties, or guarantees, whetherwritten or oral, express or implied, shall form a part hereof or have any legal effect whatsoever. b. Persons signing this Contract and all relevant attachments are duly empowered representatives of their respective,: companies and have the authority to approve this Contract. Executed on this 14thday of City of Lubbock June Attest: Windy SittcPn, Mayor Rebecca Garza, City Secreta Approved as to Form: ./ ' �' ,r William de Haas Contract Manager / Attorney Mentor Engineering: Signature Print Name Title 9 Approved as to Content: ichard Burdine, Assistant City Manager City Transit Management Company: Signature Print Name Federal Tax ID #