CONSULTING AGREEMENT
BY AND BETWEEN
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AND
ROAD COMMISSION FOR OAKLAND COUNTY
This Consulting Agreement (the
"Agreement"), made and entered into this date of
,
2000, by and between
(the "CONSULTANT"),
with offices at
and the Road
Commission for Oakland County (the "RCOC"), with offices at 31001
Lahser Road, Beverly Hills, MI 48025;
WHEREAS, the RCOC as part of federally funded
Intelligent Transportation System Project IVH 9226(001) (FAST-TRAC) maintains
its Traffic Operations Center (TOC), located at 1200 N. Telegraph Road, Bldg.
W-49, Pontiac, MI 48341; and
WHEREAS, the TOC collects and analyzes traffic
data and manages the FAST-TRAC traffic system; and
WHEREAS, the CONSULTANT is in the business of
providing traffic, news, weather, sports and other information to television,
radio and other receivers of such information; and
WHEREAS, the CONSULTANT wishes to utilize the TOC
facilities and available data in conjunction with CONSULTANT's traffic
information service; and
WHEREAS, the RCOC will be able to utilize the
SERVICES of CONSULTANT to provide an operator or operators for the RCOC's
traffic management system, (The SERVICES).
NOW THEREFORE, in consideration of the mutual
benefits set forth herein, the parties agree as follows:
1. SERVICES
The Scope of SERVICES to be performed by
CONSULTANT under this Agreement shall be as set forth in Exhibit A attached
hereto.
2. CONSULTANT's Obligations
- CONSULTANT shall provide at least one traffic surveillance operator
(CONSULTANT's Operator) during the hours of 6:00 a.m. - 9:00 a.m. and
4:00 p.m. - 6:00 p.m., Monday through Friday, excluding holidays. Additional
time may be mutually agreed upon by the parties.
- CONSULTANT's Operator shall enter the RCOC's traffic data into collection,
distribution and retention systems provided by the RCOC as more particularly
described in Exhibit A.
- CONSULTANT's Operator shall note "alerts" of technical
difficulties and other indicators of traffic problems reflected on the FAST-TRAC
Scats/Autoscope network screens and immediately advise appropriate TOC personnel.
- CONSULTANT's Operator shall receive emergency notifications of system
breakdowns and other traffic emergencies and immediately advise appropriate TOC
personnel.
- CONSULTANT's Operator will work under the direction of the FAST-TRAC Project
Manager or his designee, and comply with work area procedures of the RCOC.
- CONSULTANT's Operator may perform such other duties as may be mutually agreed.
- CONSULTANT will bear the costs associated with broadcasting Metro Networks
information out of the TOC, internal connection, any dedicated telephone line
and providing its personnel with equipment and furniture required for said
equipment, including an Etak workstation.
- Subject to space, availability and weather, mechanical and air traffic
control, CONSULTANT will provide up to one helicopter or fixed wing airplane
ride per week to the RCOC for traffic assessment or like purposes during
regularly scheduled helicopter hours as agreed to by the parties. Only persons
(public employees or officials) designated by specific request and authorization
of the RCOC Managing Director, Deputy Managing Director or FAST-TRAC Project
Manager shall be afforded rides. Persons riding the helicopter will provide
CONSULTANT a Waiver of Liability as a condition of the ride.
- Pertinent information gathered by CONSULTANT regarding Oakland County
traffic will be shared with the RCOC, provided the RCOC agrees not to directly
or indirectly release such information in a format packaged by CONSULTANT to
other information source providers. The RCOC agrees to cooperate with CONSULTANT
to resolve issues as necessary so that release of CONSULTANT's information is
not detrimental to CONSULTANT's business.
3. RCOC Obligation
- The RCOC shall furnish for the CONSULTANT such standards and other
information as may be needed by the CONSULTANT to provide the SERVICES to the
RCOC.
- The RCOC will provide CONSULTANT's Operator, at no charge to CONSULTANT,
sufficient workspace at the TOC, including reasonable use of telephone and fax.
The size of the workspace will be mutually agreed to by CONSULTANT and RCOC in
accordance with CONSULTANT's normal technical specifications and requirements,
attached hereto, but will need to accommodate no less than one traffic
surveillance operator, one computer workstation and appropriate broadcast
equipment.
- RCOC will permit CONSULTANT's Operator access to FAST-TRAC generated traffic
data, Oakland County based cameras, which data is available at the TOC, for
CONSULTANT's use. The CONSULTANT may utilize and broadcast (via television,
cable, satellite, internet or other media) video images available at the TOC
originating in Oakland County and from the FAST-TRAC traffic surveillance camera
system, either directly or via CONSULTANT's clients.
- The parties agree that while at the TOC, CONSULTANT's Operator may also
engage in certain broadcast activities related to CONSULTANT's business while
performing the SERVICES to the RCOC as set forth herein.
4. Term:
This Agreement shall commence when executed by
both parties and remain in effect for an initial period of one (1) year. After
the initial term, this Agreement shall automatically renew for additional one
(1) year terms unless either party notifies the other in writing by certified
mail at least ninety (90) days prior to the expiration of the then-current term
that it does not wish to renew. Should such notice be furnished, this Agreement
shall automatically expire at the end of the then-current term.
5. Non-Interference
- CONSULTANT agrees that the operation of the TOC as a public facility is at
all times the primary function. Under no circumstances shall CONSULTANT's
employees, including CONSULTANT's Operator, interfere with or restrict RCOC
operations, and CONSULTANT's employees shall, when requested relinquish space,
and if necessary in emergency conditions, remove themselves from the premises.
- CONSULTANT's employees, including CONSULTANT's Operator, shall not alter or
otherwise access the TOC computer programs, except as specifically instructed
for data input.
6. Termination
- Either party may terminate this Agreement upon thirty (30) days prior
written notice of a breach of any material term of this Agreement by the other
party and such other party's failure to cure such breach within such thirty (30)
day period. At the time of notice of breach, the RCOC may, at its sole
discretion, require CONSULTANT to cease operations at the TOC until the breach
is corrected.
7. Audit - Valuation
The CONSULTANT shall follow standard accounting
practices and permit representatives of the RCOC, MDOT and FHWA to audit and
inspect its PROJECT books and records at a mutually agreeable time. Such records
are to be sufficient to substantiate matching funds for the FAST-TRAC Project
and to be kept available for three (3) years from the date of the completion of
SERVICES.
The value of the contribution (SERVICES
provided) is estimated to be approximately $75,000.
8. Compliance with Applicable Laws and
Regulations
The CONSULTANT specifically agrees that the
performance of SERVICES herein enumerated by it, or by an approved subcontractor,
or anyone acting in its behalf, will comply with any and all applicable State,
Federal, and Local statutes, ordinances, and regulations, and with RCOC
regulations.
Additionally, the CONSULTANT shall comply with,
and shall require any contractor or subcontractor to comply with the following:
- In connection with the performance of this agreement, the CONSULTANT
(hereinafter in Appendix "A" referred to as the "contractor")
agrees to comply with the State of Michigan provisions for "Prohibition of
Discrimination in State Contracts", as set forth in Appendix "A",
attached hereto and made a part hereof.
- During the performance of this Agreement, the CONSULTANT for itself, its
assignees, and successors in interest (hereinafter in Appendix "B"
referred to as the "contractor") agrees to comply with the Civil
Rights Act of 1964, being P.L. 88-352. 78 Stat. 241, as amended, being Title 42
USC Sections 1971, 1975a - 1975d, and 2000a - 2000h-6, and the Regulations of
the United States Department of Transportation (49 CFR Part 21) issued pursuant
to said Act, including Appendix "B" attached hereto and made apart
hereof.
- The parties hereto further agree that they accept MDOT's Disadvantaged
Business Enterprises/Minority Business Enterprises/Women's Business Enterprises
(DBE/MBE/WBE) Program with respect to the PROJECT and will abide by the
provisions set forth in Appendix "C" attached hereto and made a part
hereof, being an excerpt from Title 42 CFR Part 23, more specifically
23.43(a)(1) and (2) thereof.
- The CONSULTANT agrees to comply with the assurances - non construction
Program (2 pages: Standard Form 4219-1881 prescribed by OMB Circular 2-102 as
said assurances may be applicable, with the "Certification Regarding
Lobbying" attached thereto (1 page) and with "Addendum B, General
Agreement for Federal Aid Projects", dated 5/18/93 as said provisions may
be applicable (5 pages) (Appendix D).
- 1) The signature of an authorized officer of
the CONSULTANT on this Agreement constitutes its certification of "status"
under penalty of perjury under the laws of the United States in respect to 49
CFR Part 29 pursuant to Executive Order 12549.
2) The certification which is outlined as a part of
this Agreement as Attachment A, is Appendix A of 49 CFR Part 29, and applies to
the CONSULTANT (referred to in Appendix A as "the prospective primary
participant").
3) The CONSULTANT is responsible for obtaining the
same certification from all subcontractors under this Contract by inserting the
following paragraph in all subcontracts:
The Subcontractor's signature on this Contract constitutes the
subcontractor's certification of "status" under penalty of perjury
under the laws of the United States in respect to 49 CFR Part 29,
pursuant to Executive Order 12549. The certification which is
included as a part of this Contract as Attachment B, is Appendix B
of 49 CFR, Part 29.
9. Indemnification and Insurance
- The CONSULTANT shall hold harmless, represent, defend and indemnify the
BOARD OF COUNTY ROAD COMMISSIONERS of Oakland County, its officers and employees,
the Michigan State Transportation Commission, the Michigan Department of
Transportation; and the local units of government, within which the PROJECT is
located; against all claims to public or private property and/or for injuries to
persons, or for any other claims arising out of the negligent performance,
improper performance or non-performance of the contracted work, whether during
the progress and/or after the completion thereof.
Further, the CONSULTANT shall acquire and maintain
statutory workers' compensation insurance coverage, auto liability,
comprehensive general liability insurance coverage and professional liability
insurance coverage. The limits and deductible applicable to both comprehensive
general liability and professional liability shall be as described in the
attached Exhibit B.
Certificates of insurance for each policy,
providing for 30 days notice to the RCOC of cancellation, termination or
material change, shall be provided to the RCOC.
- The CONSULTANT shall indemnify and save RCOC harmless from damages arising
from actions brought against RCOC based upon a claim that any intellectual
property as provided by CONSULTANT infringes a patent, copyright or trademark,
provided that RCOC gives CONSULTANT prompt written notice of any alleged
infringement and affords CONSULTANT the opportunity of sole defense and
settlement of any such allegation.
- RCOC shall indemnify and hold CONSULTANT, its employee and agents harmless
from claims arising out of the intentional misconduct or gross negligence of the
RCOC, its employees, arising out of the performance, non-performance or improper
performance of obligations assured pursuant to this Agreement.
- Title and risk of loss for broadcast equipment and associated personal
property, and personal property of CONSULTANTS, its agents and employees, shall
remain in CONSULTANT and said employee's name. CONSULTANT shall be responsible,
at its option, of insuring said property.
10. Government Function
It is declared that the SERVICES performed
under this Agreement are a governmental function. It is the intention of the
parties hereto that this Agreement shall not be construed to waive the RCOC's
defense of government immunity.
11. Third Parties
This Agreement is not for the benefit of any
third party.
12. Choice of Law
In interpretation of this Agreement, the laws
of the State of Michigan, USA, shall apply. Venue shall lie in the County of
Oakland, State of Michigan.
13. Severability
The invalidity of any portion of this Agreement
shall not affect the enforceability of the remaining portions of this Agreement,
and in the event that portions of this Agreement shall be declared invalid, this
Agreement shall be construed as if such invalidated portion had not been
inserted.
14. Notices
All notices and documents desired or required
to be given to either party hereunder must be in writing and shall be deemed
given on the date received, via certified mail, return receipt requested, to the
other party's respective address set forth below or to such other address as
either party shall designate to the other in writing.
All notices required to be given to the RCOC
hereunder shall be sent to:
Road Commission for Oakland County
Traffic Operations Center
1200 North Telegraph Road, Building W-49
Pontiac, MI 48341
Attention: Gary Piotrowicz
and all notices to
shall be sent to:
[Primary address of CONSULTANT]
with a copy to
[Copy address for CONSULTANT]
15. Changes
Any material change in scope or character of
the SERVICES, cost, compensation, or term of this Agreement shall be by
execution of a written amendment to this Agreement by the parties hereto.
16. Counterparts
This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute the
same instrument.
17. Interpretation
No provision of this Agreement shall be
interpreted against any party because such party or its legal representative
drafted such provision.
18. Execution
This Agreement is not valid unless signed by
two corporate officers of CONSULTANT.
Upon execution of this Agreement by the parties
hereto, same shall become binding upon the parties hereto, their successors and
assigns, until such time as all work contemplated hereunder is complete, or
until such time as this Agreement is terminated as set forth herein, or by
mutual consent of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have set
their hands and seals by their duly authorized agents and representatives the
day and year first above written.
[CONSULTANT]
By:
Its:
By:
Its:
BOARD OF COUNTY ROAD COMMISSIONERS OF
THE COUNTY OF OAKLAND
By:
Its:
EXHIBIT A
SCOPE OF SERVICES
[CONSULTANT's] Operator
[CONSULTANT] shall provide, at its sole cost, an operator or operators to
work under the direction of the RCOC, Monday through Friday excluding holidays
between the hours of 6 - 9 a.m. and 4 - 6 p.m. Additional hours may be agreed
upon between the parties. Security checks will be performed for [CONSULTANT's]
employees working at the TOC.
The operator will carry out the following duties:
- Gather and organize available traffic data in Oakland County from MDOT, RCOC
and [CONSULTANT's] sources.
- Input construction and congestion causing incident data into the
Transportation Information Management System (TMS).
[CONSULTANT's] Costs
- Costs of broadcasting
- Internet connection required for CONSULTANT's broadcasting
- Any dedicated telephone lines required for CONSULTANT's broadcasting
function
- Equipment and furniture required for CONSULTANT's broadcasting function,
including an Etak workstation
- All salaries, benefits, including workers' compensation insurance related to
all [CONSULTANT's] personnel, including the operator.
[CONSULTANT Provisions] and Misc.
- [CONSULTANT] will share data it gathers pertinent to Oakland County traffic
management and planning with the RCOC, provided the RCOC does not provide the
data as formatted by [CONSULTANT] directly to other information service
providers. The RCOC may share the information with other agencies.
- Metro Networks will assist the RCOC in the RCOC's provision of cable
television traffic information.
- CONSULTANT will provide up to one helicopter or fixed wing aircraft ride per
week to the RCOC for traffic assessment or like purposes, during such
helicopter's normal operating hours as mutually agreed by the Parties. Only
persons (public employees or officials) designated by specific request and
authorization of the RCOC Managing Director, Deputy Managing Director or
FAST-TRAC Project Manager shall be afforded rides. Such individuals shall sign
CONSULTANT's stand form of release as a condition of the ride.
RCOC Commitments
- RCOC will permit CONSULTANT's Operator access to FAST-TRAC generated traffic
data, and data from Oakland County based cameras regarding Oakland County
available at the TOC, said data to be used and broadcasted by [CONSULTANT] at
CONSULTANT's option.
- The RCOC will make available space at the TOC for CONSULTANT's Operator,
including the reasonable cost of utilities, at the RCOC's discretion.
- The RCOC will provide hardware costs for the web page or cable equipment, at
its discretion.
Return to Appendix 2
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