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HomeMy WebLinkAboutOTHER-2024-108-Approval of Contract with TripSpark Technologies for Consolidation of County Transit Management Technology 2 [Departmental Use Only] TITLE OCTS -TripSpark FY FY 25 NORTH CAROLINA SERVICES AGREEMENT RFP/RFQ ORANGE COUNTY This Services Agreement (hereinafter "Agreement") , made and entered into this 3 day of December, 2024 , ("Effective Date") by and between Orange County, North Carolina a political subdivision of the State of North Carolina (hereinafter, the " County " or "Licensee") and Trapeze Software Group, Inc . dba TripSpark Technologies (hereinafter, the " Provider" or "Trip Spark") . WITNESSETH . That the County and Provider, for the consideration herein named, do hereby agree as follows : 1 . Services a . Scope of Work . i) This Services Agreement, and attached Attachment 1 , Attachment 2 (collectively the "Agreement") is for services to be rendered by Provider to County in accordance with the Attachment 1 of the Agreement (" Services ") . Attachment 1 details the Scope of Work, schedule and deliverables . Attachment 2 -Federal and State requirements -are hereby incorporated into this Agreement by reference as though fully set out here . ii) By executing the Agreement, the Provider agrees that Provider is qualified to perform and capable of performing and providing the Services required or necessary under the Agreement in a competent and professional manner . iii) The Services to be performed under the Agreement consist of Services , as further described and designated in Section 3 hereof. Compensation to the Provider for Services under the Agreement shall be as set in Exhibit B of Attachment 1 . 2 . Responsibilities of the Provider a . Services to be provided . The Provider shall provide the County with all Services required in accordance with Exhibit C of Attachment 1 to complete the Services within the time period set forth therein and in accordance with the highest professional standards . b . Standard of Care . i) The Provider shall exercise reasonable care and diligence in performing Services under the Agreement in accordance with the highest generally accepted standards of this type of Provider practice throughout the United States and in accordance Revised 01 / 24 1 3 with applicable federal , state and local laws and regulations applicable to the performance of these Services . Notwithstanding the foregoing and the provisions in Attachment 2 of the Agreement, Provider will adhere to federal , state , local laws , codes , and regulations , as they apply only to Provider ' s performance under the Agreement ; and (ii) third party any hardware (if applicable and Software licensed under the final Agreement is commercial "off the shelf ' and laws and regulations shall : (a) be in effect only to the extent that such clauses are applicable to the subject matter hereof. (b) not require DBE requirements . (c) not transfer ownership of any intellectual property . (d) not include bonding requirements for the Agreement; and (e) not include any liquidated damages under the Agreement ; and (� not exceed the limitation of liability and indemnification obligations under the Agreement . Should federal , state , local laws and regulations , allow the parties agree Provider shall be allowed an equitable adjustment . Finally , Provider makes no representation that Provider or its subcontractor ' s software , third party hardware and related documentation contain features and functionality that is federal, state , local law, codes , and regulation compliant or meets any specific federal , state , local law, codes , and regulation requirements . ii) Provider shall be responsible for its employees , or assigns in the performance of Services pursuant to the Agreement . iii ) The Provider shall not, except as otherwise provided for in the Agreement , subcontract the performance of any work under the Agreement without prior written permission of the County for which written permission shall not be withheld or delayed . No permission for subcontracting shall create , between the County and the subcontractor, any contract or any other relationship . iv) Provider is an independent contractor of County. Any and all employees of the Provider engaged by the Provider in the performance of any Services required of the Provider under the Agreement, shall be considered employees of the Provider only and not of the County, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Provider. v) If activities related to the performance of Services pursuant to the Agreement require specific licenses , certifications , or related credentials Provider represents that it or its employees, subcontractors engaged in such activities possess such licenses , certifications , or credentials and that such licenses certifications , or credentials are current, active , and not in a state of suspension or revocation . vii) [Deleted] 3 . Services Revised 01 / 24 2 4 a . Services . i) The Provider shall perform as Services the work and services described herein and as specified in Provider ' s proposal dated July 26 , 2024 ("Proposal") in response to the County ' s Request for Proposals or Request for Qualifications (the "RFP ") "RFP Number RFP No . 367 -005425 for "Automated Public Transit Management Scheduling, Reporting, and Routing Software" issued June 7 , 2024 , which are fully incorporated and integrated herein by reference . In the event a term or condition in any referenced document conflicts with a term or condition of the Agreement the term or condition in the Agreement shall control . Should such conflict arise the priority of documents shall be as follows : Attachment 1 of the Agreement, this Services Agreement, Attachment 2 of the Agreement, the Proposal , the County ' s RFP . In the event of a perceived default under the terms of the Agreement, Provider will be granted a thirty (30) day cure period from the date of receipt of the notice of default, during which time Provider shall be entitled to cure the default prior to any further action being taken by the County . In addition, termination for default by County and Provider ' s obligations to any claim , including a claim for breach are subject to the limitation of liability provisions and termination provisions as stipulated under Section 13 and 14 in Attachment 1 of the Agreement . Provider will pay costs as finally determined by a court of competent jurisdiction . ii) [Deleted] iii) [Deleted] 4 . Duration of Services a . Term . The term of this Agreement shall be from December 3 , 2024 to June 30 , 2025 . b . Scheduling of Services i ) The Provider shall schedule and perform its activities in a timely manner. ii ) Should the County determine that the Provider is behind schedule, it may require the Provider to expedite and accelerate its efforts , including providing additional resources and working overtime , as necessary, to perform its services in accordance with the approved project schedule at no additional cost to the County . Ili ) The Commencement Date for Services shall be December 3 , 2024 . 5 . Compensation a . Compensation for Services . Compensation for Services shall include all compensation due the Provider from the County for all Services performed pursuant to the Agreement. Revised 01 / 24 3 5 The maximum amount payable for Basic Services is Two Hundred Eighty Three Thousand, Five Hundred Sixty Nine Dollars ( $ 283 , 569) . Subject to the provisions of Section 7 of the Agreement, payment for Services shall become due and payable in direct proportion to Services performed as project milestones set out in Exhibit B , Attachment 1 of the Agreement. Milestone fees shall be the maximum amount payable for its corresponding milestone task which shall not be altered except by written amendment . b . Additional Services . County shall not be responsible for costs related to any services in addition to the Services performed by Provider unless County requests such additional services in writing and such additional services are evidenced by a written amendment to this Agreement . 6 . Responsibilities of the County a . Cooperation and Coordination . The County has designated (Nishith Trivedi, OCTS) to act as the County' s representative with respect to the Project who shall have the authority to render decisions within guidelines established by the County Manager or the County Board of Commissioners and who shall be available during working hours as often as may be reasonably required to render decisions and to furnish information . 7 . Insurance i a . General Requirements . Provider shall obtain , at its sole expense , Commercial General Liability Insurance , Automobile Insurance, Workers ' Compensation Insurance , and any additional insurance as may be required by County ' s Risk Manager as such insurance E requirements are described in the Orange County Risk Transfer Policy and Orange County Minimum Insurance Coverage Requirements (each document is incorporated s herein by reference and may be viewed at f http : //www . orangecountync . gov/departments /purchasing division /contracts . php . ) If County ' s Risk Manager determines additional insurance coverage is required such additional insurance shall consist of see attached COI ( if no additional insurance required mark N/A as being not applicable) . Provider shall not commence work until such insurance is in effect and certification thereof has been received by the County' s Risk Manager , 8 . Indemnity a . Indemnity . To the extent authorized by North Carolina law the Provider agrees , to defend and indemnify the County from all third party claims , including reasonable attorney' s fees, arising from property damage or bodily injury or death to any person or persons caused in whole or in part by the negligence or misconduct of the Provider provided that the County gives Provider prompt notice of a claim and Provider is I permitted to have full and exclusive control of any defense except to the extent same are caused by in whole or in part by the negligence or willful misconduct of the County . It i Revised 01 / 24 4 6 is the intent of this provision to require the Provider to indemnify the County to the fullest extent permitted under North Carolina law. 9 . Amendments to the Agreement a . Changes in Services . Changes in the Services and entitlement to additional compensation or a change in duration of the Agreement shall be made by a written amendment to the Agreement executed by the County and the Provider. The Provider shall proceed to perform the Services required by the amendment only after receiving a fully executed amendment from the County . 10 . Termination a . Termination for Convenience by either Party . The Agreement may be terminated, in whole or in part, without cause by either party for its convenience upon ninety (90) days prior written notice to the other party. b . Other Termination . The Provider may terminate the Agreement based upon the County' s material breach of the Agreement ; provided, the County has not taken all reasonable actions to remedy the breach . The Provider shall give the County thirty (30) days ' prior written notice of its intent to terminate the Agreement for cause . Either party may terminate the Agreement upon notice to the other party that obligations pursuant to the Agreement are made impractical due to emergencies in Orange County or any other part of North Carolina due to events directly impacting Orange County including but not limited to pandemics . Both parties shall remain responsible for all payment and performance due up to the receipt of such notice . c . Compensation After Termination . In the event of termination, the Provider shall be paid that portion of the fees and expenses due pursuant to the Agreement up until the date of termination. d. Waiver. The payment of any sums by the County under the Agreement or the failure of the County to require compliance by the Provider with any provisions of the Agreement or the waiver by the County of any breach of the Agreement shall not constitute a waiver of any claim for damages by the County for any breach of the Agreement or a waiver of any other required compliance with the Agreement. e . Suspension. County may suspend the Services and the Agreement at any time for County ' s convenience and without penalty to County, except County shall pay travel expenses to Provider, if applicable, upon five (5 ) business days ' notice to Provider . Upon any suspension by County, Provider shall discontinue the Services and shall not resume the Services until notified to proceed by County . 11 . Additional Provisions a . Limitation and Assignment . The County and the Provider each bind themselves , their successors , assigns and legal representatives to the terms of the Agreement. Neither the County nor the Provider shall assign or transfer its interest in this Agreement without the Revised 01 / 24 5 7 written consent of the other, except Provider shall not require the County ' s written consent in the event of a corporate reorganization . There are no third-party beneficiaries of the Agreement and nothing in the Agreement, express or implied, is intended to confer on any person other than the parties hereto (and their respective successors , heirs and permitted assigns ) , any rights , remedies , or obligations . b . Governing Law . The Agreement and the duties , responsibilities , obligations and rights of respective parties hereunder shall be governed by the laws of the State of North Carolina . c . Compliance with Laws . Subject to the provisions in Section 2 b . (i) herein , Provider shall during the provision of Services pursuant to the Agreement, remain in compliance with all applicable local , state , and federal laws , rules , and regulations including but not limited to all state and federal anti -discrimination laws , policies , rules , and regulations and the Orange County Non-Discrimination Policy and Orange County Living Wage Policy (each Orange County policy is incorporated herein by reference and may be viewed at http : //www . orangecountync . og v/departments/purchasing,division/contracts php . ) Any violation of this requirement is a breach of the Agreement and County may immediately terminate the Agreement . This paragraph is not intended to limit and does not limit the definition of breach to discrimination . By executing the Agreement Provider affirms that Provider and any subcontractors of Provider are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes . By executing the Agreement Provider certifies that Provider has not been identified , and has not utilized the services of any agent or subcontractor identified , on the list created by the State Treasurer pursuant to G . S . 147 - 86 . 58 . By executing this Agreement Provider certifies that Provider has not been identified , and has not utilized the services of any agent or subcontractor identified , on the list created by the State Treasurer pursuant to G . S . 147 - 86 . 81 . d. Dispute Resolution . Any and all suits or actions to enforce , interpret or seek damages with respect to any provision of, or the performance or non -performance of, the Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina . It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions . Binding arbitration may not be initiated by either party , however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing of a suit or action . e . Entire Agreement , The Agreement, represents the entire and integrated agreement between the County and the Provider and supersedes all prior negotiations , representations or agreements , either written or oral . The Agreement may be amended only by written instrument signed by both parties . Modifications may be evidenced by facsimile signatures . f. Severability . If any provision of the Agreement is held as a matter of law to be unenforceable , the remainder of the Agreement shall be valid and binding upon the Parties . i E Revised 01 / 24 6 i 8 g . Ownership of Work Product . Should Provider ' s performance of the Agreement generate documents , items or things , including Documentation and Software such documents , items or things , including Trade Secrets , Documentation and Software as defined in Attachment 1 of the Agreement are or shall become the property of Provider. Provider will not take ownership of County provided data . The use of the documents , items or things , Trade Secrets , Documentation and Software as defined in Attachment 1 of the Agreement by the County or by any person or entity for any purpose other than as set forth in the Agreement shall be at the full risk of the County . h . Non-Appropriation and Government Action . Provider acknowledges that County is a governmental entity, and the validity of the Agreement is based upon the availability of public funding under the authority of its statutory mandate . In the event that public funds are unavailable or not appropriated for the performance of County ' s obligations under the Agreement , then the Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability or non- appropriation of public funds . It is expressly agreed that County shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of the Agreement. In the event of a change in the County ' s statutory authority, mandate or mandated functions , by state or federal legislative or regulatory action , which adversely affects County ' s authority to continue its obligations under the Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to Provider of such limitation or change in County ' s legal authority . Notwithstanding the foregoing, the County ' s payment obligations to the Provider for fees due up until and including the date of termination shall continue and survive termination of the Agreement . i . Signatures . The Agreement together with any amendments or modifications may be executed electronically . All electronic signatures affixed hereto evidence the consent of the parties to utilize electronic signatures and the intent of the parties to comply with Article 11 A and Article 40 of North Carolina General Statute Chapter 66 . j . Notices . Any notice required by the Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following : Orange County Provider ' s Name & Address Attention : Nishith Trivedi TripSpark Technologies P . O . Box 8181 5625 Rockwell Drive, NE Hillsborough, NC 27278 Cedar Rapids , IA 52402 IN WITNESS WHEREOF, the Parties , by and through their authorized agents , have hereunder set their hands and seal , all as of the day and year first above written . ORANGE COUNTY . TRAPEZE SOFTWARE GROUP , INC . By : By : Revised 01 / 24 7 I i i I E I 4 I i I