HomeMy WebLinkAboutPentira, LLC & Oshkosh DATABASE SUPPORT SERVICES CONTRACT
CITY OF OSHKOSH
THIS AGREEMENT, made on the 29th day of March 2017, by and between the
CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, and PENTIRA,
LLC, 508 RIVERSIDE DRIVE, DE FOREST, WI, 53532, hereinafter referred to as the
CONTRACTOR,
WITNESSETH:
That the City and the Contractor, for the consideration hereinafter named, enter
into the following agreement. The Contractor's proposal is attached hereto and reflects
the agreement of the parties except where it conflicts with this agreement, in which case
this agreement shall prevail.
ARTICLE I. PROJECT MANAGER
A. Assignment of Project Manager. The Contractor shall assign the following
individual to manage the project described in this contract:
(Dean Martin, President, Pentira, LLC)
B. Changes in Project Manager. The City shall have the right to approve or
disapprove of any proposed change from the individual named above as Project
Manager. The City shall be provided with a resume or other information for any proposed
substitute and shall be given the opportunity to interview that person prior to any proposed
change.
ARTICLE II. CITY REPRESENTATIVE
The City shall assign the following individual to manage the project described in
this contract:
(David Vickman, Transit Operations Manager)
ARTICLE III. SCOPE OF WORK
The Contractor shall provide the services described in the Contractor's Proposal.
See Exhibit 1. The Contractor may provide additional products and/or services if such
products/services are requested in writing by the Authorized Representative of the City.
All reports, drawings, specifications, computer files, field data, notes and other
documents and instruments prepared by the Contractor as instruments of service shall
remain the property of the City.
ARTICLE IV. CITY RESPONSIBLITIES
The City shall furnish, at the Contractor's request, such information as is needed
by the Contractor to aid in the progress of the project, providing it is reasonably obtainable
from City records.
To prevent any unreasonable delay in the Contractor's work the City will examine
all reports and other documents and will make any authorizations necessary to proceed
with work within a reasonable time period.
ARTICLE V. TERM
The term of this agreement shall be for three years beginning on the 1 st day of April 2017,
and extending to March 31, 2018. This agreement may be renewed by the City for two
additional 1-year terms.
ARTICLE VI. COMPONENT PARTS OF THE CONTRACT
This contract consists of the following component parts, all of which are as fully a
part of this contract as if herein set out verbatim, or if not attached, as if hereto attached:
1. This Instrument
2. Contractor's Proposal.
In the event that any provision in any of the above component parts of this contract
conflicts with any provision in any other of the component parts, the provision in the
component part first enumerated above shall govern over any other component part
which follows it numerically except as may be otherwise specifically stated.
ARTICLE VII. PAYMENT
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A. The Contract Sum. The City shall pay to the Contractor an annual sum of
$34,000.00 (thirty-four thousand dollars and 00/100), adjusted by any changes hereafter
mutually agreed upon in writing by the parties hereto.
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Fee schedules shall be firm for the duration of this Agreement.
B. Additional Costs. Costs for additional services shall be negotiated and set forth
in a written amendment to this agreement executed by both parties prior to proceeding
with the work covered under the subject amendment.
ARTICLE VIII. CONTRACTOR TO HOLD CITY HARMLESS
The Contractor covenants and agrees to protect and hold the City of Oshkosh
harmless against all actions, claims and demands of any kind or character whatsoever
which may in any way be caused by or result from the intentional or negligent acts of the
Contractor, his agents or assigns, his employees or his subcontractors related however
remotely to the performance of this Contract or be caused or result from any violation of
any law or administrative regulation, and shall indemnify or refund to the City all sums
including court costs, attorney fees and punitive damages which the City may be obliged
or adjudged to pay on any such claims or demands within thirty (30) days of the date of
the City's written demand for indemnification or refund.
ARTICLE IX. DATA PROTECTION
The Contractor shall not use, disclose, or distribute any data provided by the City except
as may be requested to the City and for City purposes. In the event the Contractor is
contacted by any law enforcement or regulatory agency with any lawful order regarding
City data, the Contractor shall promptly notify the City of such contact to the extent
allowed by law. The Contractor shall provide copies of City data to the City upon request,
with the City subject to reasonable copy charges.
GPS data, and specifically route identifiers and location coordinates, are not considered
potentially sensitive data. Both parties understand that this GPS data will be an integral
element of this system and that temporary access to this GPS data may, in fact, may be
disclosed to the public through the public's use of an associated app to enhance the
public's use of GO Transit.
In the event of a contract termination, the Contractor agrees to make all necessary good-
faith efforts to cooperate in the transition of City information back to the City or to other,
new vendors.
ARTICLE X. TERMINATION
A. For Cause. If the Contractor shall fail to fulfill in timely and proper manner any
of the obligations under this Agreement, the City shall have the right to terminate this
j Agreement by written notice to the Contractor. In this event, the Contractor shall be
I entitled to compensation for any satisfactory, usable work completed.
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B. For Convenience. The City may terminate this contract at any time by giving
written notice to the Contractor no later than 10 calendar days before the termination date.
If the City terminates under this paragraph, then the Contractor shall be entitled to
compensation for any satisfactory work performed to the date of termination. Contractor
shall be entitled to retain a pro-rata portion of any prepaid fees, with the remaining,
unused fees, to be returned to the City within thirty (30) days of termination.
This document and any specified attachments contain all terms and conditions of
the Agreement and any alteration thereto shall be invalid unless made in writing, signed
by both parties and incorporated as an amendment to this Agreement.
ARTICLE XI. FEDERAL AND STATE REGULATIONS
This agreement shall at all times be subject to the rules and regulations of
Wisconsin Department of Transportation and the Federal Transit Administration, under
the provisions of the Urban Mass Transportation Act of 1964, as amended. See Exhibit
2.
In the Presence of: CONTRACTOR
By:
(Seal of Contractor (Specify Title)
if a Corporation.)
By:
(Specify Title)
CITY OF OSHKOSH
By:
Mark A. Rohloff City Manager
(Witness)
And
(Witness) Pamela R. Ubrig, City Clerk
APPROVED:
City Attorr14
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I hereby certify that the necessary provisions have been made to pay the liability which
will accrue under this contract.
City Comptroller
EXHIBIT 1 - CONTRACTOR'S PROPOSAL
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PRODUCT SUPPORT AND UPDATES
Support for eXpressT nsit is provided onasubscription basis. When you purchase asupport subscription for
eXpressTransit,you will receive product updates as they become available, including new features and updates for a
12 month period from your original purchase date. When the support subscription expires(12 months+ 1 day after
your purchase date), you can optionally renew your subscription for an additional year. Ifyou dwnot renew your
subscription,you can continue to use eXpressTransit for as long as you wish but you will not receive new versions or
updates unless you renew your Subscription.
The following is a summary of the benefits available to you when purchasing a support subscription:
~ You will receive all product updates to eXpressTransit for a 12 month period (from date of purchase)for the
subscription you have purchased. If you've purchased a Subscription,you will receive updates,new versions
and any new products that access eXpressTransit data(i.e.any mobile apps)free of charge for a 12 month
period from date ofpurchase.
w Once you've purchased a Subscription,you will be offered the option to renew the Subscription upon its 12
month expiration date. |fyou don't want horenew your subscription,you are fully protected.You can
continue using wXpmasTnaneit without further payment uolong aayou require. |fyou allow msubscription 1n
lapse and do not renew after a year,you can still update your subscription at a later time.
* Minor updates with bug fixes and new features are released approximately once a month,or more
frequently,when required and cover eXpressTransit,its related SQL Server and Azure databases,and any
related mobile apps that work in conjunction with eXpressTransit and the data it maintains.
° Any requested update to eXpressTransit will be provided as long as it can reasonably be completed within
the Subscription period. This includes new screens (including dashboards), new reports,modifications to
existing screens, modifications to existing reports,and any modification to existing processes or creation of
new processes(archiving of data, importing data,exporting data,cleaning data,etc.)
^ While a mobile application showing real time map-based bus location,stop information and route information
is under development, its delivery as part of this Subscription cannot be guaranteed. However, once the
mobile application isfinalized,it will baprovided mtnoextra charge along with its source code.
p You are the sole owner nfthe data maintained bye%proonTmnait
~ Source code for eXpressTransit will be made available to download approximately every 6 months.
w On-site training will bmprovided onanas-needed basis. During the subscription period, 3days nfon-site
will beprovided ifrequested hnensure you are comfortable using oXpmaeTmnoit. Additional time beyond 3
days will incur additional charges of$4OOper day.
WARRANTY Like all software you purchase, PonUm. LLC does not provide any warranty foxmXpmsoTranniL |nessence,wo
provide the software and software updates"as ia^
PRICING
Pricing for 12 month support subscription for eXpmaoTnaneKiocurrently provided for$34,000. This subscription
price will remain fixed through December 31. 202O.
EXHIBIT 2 — FEDERAL CONTRACT CLAUSES
No Obligation by the Federal Government
(1)The Purchaser 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 the Purchaser, Contractor, or any other party(whether or not a party to that contract)
pertaining to any matter resulting from the underlying contract.
(2)The Contractor agrees to include the above clause in each subcontract financed in whole or
in part with Federal assistance provided by the Federal Transit Administration (FTA). It is further
agreed that the clause shall not be modified, except to identify the subcontractor who will be
subject to its provisions.
Program fraud and false or fraudulent statements and related acts
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31 U.S.C. 3801 et seq.; 49 CFR Part 31 18 U.S.C. 1001; 49 U.S.C. 5307
(1)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.
(2)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. § 5307, the Government reserves
the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the
Contractor, to the extent the Federal Government deems appropriate.
(3)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.
Access to Records
49 U.S.C. 5325; 18 CFR 18.36 (i); 49 CFR 633.17
1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a
subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(1), the Contractor agrees
to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States
or any of their authorized representatives access to any books, documents, papers and records
of the Contractor which are directly pertinent to this contract for the purposes of making audits,
examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R.
633.17 to provide the FTA Administrator or his authorized representatives including any PMO
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Contractor access to Contractor's records and construction sites pertaining to a majorcooita|
project, defined at 49 U.S.C, 5302(a)l, which is receiving federal financial assistance through
the programs described ot49U.S.C. 5307. 53O8or5311.
2. Where the Purchaser is aState and iothe FTA Recipient oresubgrantee ofthe FTA
Recipient |naccordance with 49C.F.R. S33.17' Contractor agrees tVprovide the Purchaser, the
FTA Administrator or his authorized representatives, including any PMO Contractor, access to
the Contractor's records and construction oibso pertaining toa major capital project, defined at
49 U.S.C. ` '\1.53D�/� vvhioh |sreceiving federal financial assistance through the pvn0ounoa
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described st49U.S.C. 53O7' 5308or5311. Bydefinition, mmajor napito| projecteoc|udes
contracts Vfless than the simplified acquisition threshold currently set 81$10U.0OO.
3. Where the Purchaser enters into a negotiated contract for other than a small purchase or
under the simplified acquisition threshold and is an institution of higher education, a hospital or
other non-profit organization and is the FTA Recipient or a subgrantee of the IFTA Recipient in
accordance with 49 C.F.R. 18.48. Contractor agrees ho provide the Purchaser, FTA
Administrator, the Comptroller General of the United States or any of their duly authorized
representatives with access to any books, documents, papers and record of the Contractor
which are directly pertinent 10this contract for the purposes Ofmaking audits, examinations,
excerpts and transcriptions.
4. Where any Purchaser which iathe FTA Recipient orosubgrantee ofthe FTA Recipient in
accordance with 49U.S.C. 5325(o) enters into acontract for acapital project urinlpPowern8Dt
(defined at4SU.8.C. 5302(a)1)through other than competitive bidding, the Contractor shall
make available records related to the contract to the Purchaser, the Secretary of Transportation
and the Comptroller General or any authorized officer or employee of any of them for the
purposes of conducting 8Daudit and inspection.
5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means
whatsoever o[tocopy excerpts and transcriptions asreasonably needed.
8. The Contractor agrees tomaintain all books, records, accounts and reports required under
this contract for a period of not less than three years after the date of termination or expiration of
this ooD1nact, except in the event uflitigation or settlement of claims arising from the
performance of this contract, in which case Contractor agrees to maintain same until the
Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized
representatives, have disposed of all such litigation, appeals, claims or exceptions related
thereto. Reference 49CFR 18.39/i\(11).
7. FTA does not require the inclusion of these requirements in subcontracts.
Federal Changes
49 CFR Part 18
Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and
directives, including without limitation those listed directly orbyreference in the Master
Agreement(see
Purchaser and FTA, as they may be amended or promulgated from time to time during the term
of this contract. Contractor's failure to so comply shall constitute a material breach of this
contract.
29 U.S.C. § 623, 42 U.S.C. § 2000; 42 U.S.C. § 6102, 42 U.S.C. § 12112;
42 U.S.C. § 12132, 49 U.S.C. § 5332; 29 CFR Part 1630, 41 CFR Parts 60 et seq.
The following requirements apply to the underlying contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42
U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. §
6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and
Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate
against any employee or applicant for employment because of race, color, creed, national
origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable
Federal implementing regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity-The following equal employment opportunity requirements
j apply to the underlying contract:
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(a) Race, Color, Creed, National Origin, Sex- In accordance with Title VII of the Civil Rights Act,
as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the 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. Parts 60 et seq ., (which
implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by
Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment
Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive
orders, regulations, and Federal policies that may in the future affect construction activities
undertaken in the course of the Project. 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, creed, national origin, sex, or age. 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. In addition, the Contractor agrees to comply with
any implementing requirements FTA may issue.
(b)Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. § 623 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.
c' (c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as
amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of
j' U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal
[ Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining
to employment of persons with disabilities. In addition, the Contractor agrees to comply with any
implementing requirements FTA may issue.
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(3)The Contractor also agrees to include these requirements in each subcontract financed in
whole or in part with Federal assistance provided by FTA, modified only if necessary to identify
the affected parties.
Disadvantaged Business Enterprises
49 CFR Part 26
a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26,
Participation by Disadvantaged Business Enterprises in Department of Transportation Financial
Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises
(DBE) is 10%. The agency's overall goal for DBE participation is 1.1 %.
b. The contractor 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 CFR
Part 26 in the award and administration of this DOT-assisted contract. 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 GO Transit deems appropriate. Each
subcontract the contractor signs with a subcontractor must include the assurance in this
paragraph (see 49 CFR 26.13(b)).
The successful bidder will be required to report its DBE participation obtained through race-
neutral means throughout the period of performance.
d. The contractor is required to pay its subcontractors performing work related to this contract
for satisfactory performance of that work no later than 30 days after the contractor's receipt of
payment for that work from the GO Transit. In addition, [the contractor may not hold retainage
from its subcontractors.] [is required to return any retainage payments to those subcontractors
within 30 days after the subcontractor's work related to this contract is satisfactorily completed.]
[is required to return any retainage payments to those subcontractors within 30 days after
incremental acceptance of the subcontractor's work by GO Transit and contractor's receipt of
the partial retainage payment related to the subcontractor's work.]
e. The contractor must promptly notify the GO Transit, 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 GO
Transit.
Incorporation of FTA Terms
FTA Circular 4220.1 F
Incorporation of Federal Transit Administration (FTA)Terms -The preceding provisions include,
in part, certain Standard Terms and Conditions required by DOT,whether or not expressly set
forth in the preceding contract provisions. All contractual provisions required by DOT, as set
forth in FTA Circular 4220.1 E are hereby incorporated by reference. Anything to the contrary
herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a
j, conflict with other provisions contained in this Agreement. The Contractor shall not perform any
act,fail to perform any act, or refuse to comply with any GO Transit requests which would cause
GO Transit to be in violation of the FTA terms and conditions.
Termination Provisions
49 U.S.C. Part 18; FTA Circular 4220.1 F
(1)Termination for Convenience -The performance of work under the Contract may be
terminated by GO Transit in accordance with this Section in whole, or from time to time in part,
whenever GO Transit determines that such termination is in its best interest. Any such
termination shall be effected by delivery to the Contractor of a notice of termination specifying
the extent to which performance of work under the Contract is terminated and the date upon
which such termination becomes effective.
(2)Termination for Default- 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 GO Transit may terminate this contract for default. The
GO Transit 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 GO Transit.
(3)Termination by Mutual Agreement- The Contract may be terminated by mutual agreement
of the parties. Such termination shall be effective in accordance with a written agreement by the
parties. Any other act of termination shall be in accordance with the termination by convenience
or default provisions contained in these sections.
Suspension and Debarment
This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is
required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or
affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR
29.940 and 29.945.
The contractor is required to comply with 49 CFR 29, Subpart C and must include the
requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters
into.
By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by the GO Transit.
If it is later determined that the bidder or proposer knowingly rendered an erroneous
certification, in addition to remedies available to the GO Transit, the Federal Government may
pursue available remedies, including but not limited to suspension and/or debarment. The
bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this
offer is valid and throughout the period of any contract that may arise from this offer. The bidder
or proposer further agrees to include a provision requiring such compliance in its lower tier
covered transactions.
Energy Conservation
42 U.S.C. 6321 et seq.; 49 CFR Part 18
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.
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