RECITALS. WHEREAS, the parties jointly participated in the System procurement process, with MTS having the awarding authority for the contract; and

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1 MTS Doc. No. G ATTACHMENT 10A MEMORANDUM OF UNDERSTANDING MTS DOC. NO. G BETWEEN THE SAN DIEGO METROPOLITAN TRANSIT SYSTEM AND THE NORTH COUNTY TRANSIT DISTRICT REGARDING THE REGIONAL SCHEDULING SYSTEM This Memorandum of Understanding ( MOU ) is made and entered into effective as of this day of 2013, by and between the San Diego Metropolitan Transit System ( MTS ) and the North County Transit District ( NCTD ). The following recitals are a substantive part of this Agreement: RECITALS WHEREAS, in 2007 MTS, NCTD, and the San Diego Association of Governments (SANDAG) jointly implemented a Regional Scheduling System ( System ) to provide a scheduling, bidding, and dispatch system for transit operators in the region; and WHEREAS, the parties jointly participated in the System procurement process, with MTS having the awarding authority for the contract; and WHEREAS, the term MTS includes its wholly owned subsidiaries, San Diego Transit Corporation ( SDTC ) and San Diego Trolley, Inc. ( SDTI ), unless otherwise indicated; and WHEREAS, on August 7, 2003 MTS awarded the original contract MTS Doc. No. G regarding the System to GIRO, Inc. ( Vendor ), for GIRO s HASTUS applications (the Original Contract ); and WHEREAS, the parties implemented the System as a single functioning computer system with central elements located within MTS identified offices; and WHEREAS, the intent of this partnership is to enhance operations and service within San Diego County through cost-effective deployment of technology and to provide service to other transit operators in the region; and WHEREAS, the parties intend to upgrade the System to a newer version to further enhance operations and further provide improved functionality; and WHEREAS, the parties have agreed that the cost of the components of the upgraded System will be shared and prorated based on the number of peak revenue vehicles using each module of the System as identified in the new contract ( Contract ); and WHEREAS, the parties have agreed that SANDAG will not be part of the upgrade, this MOU or the new Contract; and

2 WHEREAS, excerpts of the new Contract MTS Doc. No. G are attached hereto as Exhibit A for ease of reference, but the parties agree that the entire Contract is incorporated herein by reference; and WHEREAS, the parties wish to memorialize their agreement in this MOU to carry out the purposes set forth above. AGREEMENT NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties agree as follows: NCTD AGREES: 1. To reimburse MTS for NCTD s share of costs for the System. NCTD payment terms shall be 20 business days following receipt of an invoice from MTS. 2. To facilitate System implementation through staff assignment and participation in various project meetings, at NCTD expense, and operational use of the deployed system(s). 3. That one full-time equivalent employee will be required to support the System as well as the Regional Transportation Management System (RTMS) communications system. The one full-time equivalent employee shall be employed by MTS, but the cost for the full-time employee, including salary and benefits, shall be pro-rated amongst NCTD and MTS with each agency paying their respective fair share. The fair share is to be determined based upon the number of revenue vehicles operated by each agency. In January of each year, each Agency shall report the number of revenue vehicles they anticipate will be in operation for the ensuing fiscal year, providing a mechanism that will allow the fair-share of expenses to be allocated appropriately. 4. Neither MTS, nor any officer, employee, or agent thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by NCTD under or in connection with any work, authority, or jurisdiction delegated to NCTD under this MOU. It is understood and agreed that pursuant to Government Code Section 895.4, NCTD shall fully defend, indemnify, and save harmless MTS, all officers and employees from all claims, suits or actions of every name, kind, and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by NCTD under or in connection with any work, authority, or jurisdiction delegated to NCTD under this MOU. MTS AGREES: 1. To process Vendor payments for the scope of work in the Contract using programmed capital improvement funds and/or committed funds from MTS and/or NCTD. MTS will review and approve Contract invoices and, as appropriate, invoice NCTD for its fair 2

3 share of the cost. NCTD will pay MTS within 20 business days of receiving an invoice from MTS. 2. To facilitate System implementation through staff assignment and participation in various project meetings, at MTS expense, and operational use of the deployed system(s). 3. To be responsible for the day-to-day operations of the System, including maintenance and support of the database server, application server, and RSS Terminal Server. MTS shall consult with and obtain approval from NCTD prior to making any changes to the System. MTS shall consult with and obtain approval from NCTD prior to any scheduled disruptions to the availability of the System. 4. That one full-time equivalent employee will be required to support the System as well as the Regional Transportation Management System (RTMS) communications system. The one full-time equivalent employee shall be employed by MTS, but the cost for the full-time employee, including salary and benefits, shall be pro-rated with each agency paying their respective fair share. The fair share is to be determined based upon the number of revenue vehicles operated by each agency. In January of each year, each Agency shall report the number of revenue vehicles they anticipate will be in operation for the ensuing fiscal year, providing a mechanism that will allow the fair-share costs to be allocated appropriately. 5. Said employee shall be made available immediately for support in the event of system failure during regular working hours. During off hours, said employee shall respond within four hours of notification of system failure. NCTD shall be provided with the means and authority to directly contact said employee for failures that affect NCTD. 6. Neither NCTD nor any officer, employee, or agent thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by MTS under or in connection with any work, authority, or jurisdiction delegated to MTS under this MOU. It is understood and agreed that pursuant to Government Code Section 895.4, MTS shall fully defend, indemnify, and save harmless NCTD, all officers and employees from all claims, suits, or actions of every name, kind, and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by MTS under or in connection with any work, authority, or jurisdiction delegated to MTS under this MOU. THE PARTIES MUTUALLY AGREE: 1. The parties have agreed that the cost of components of the System will be shared and prorated based on the number of peak revenue vehicles using the modules of the System as identified in the Contract. The cost of equipment, components, and/or modules deployed for specific agency use will be assumed by the affected agency. The parties initial cost allocation is set forth in Exhibit B. Costs will be billed by MTS according to actual usage. 3

4 2. The parties agree that if any of the parties terminates this MOU, the other parties will be allowed to continue project activities as reasonably necessary to implement the System. The terminating party shall remain responsible for those System costs incurred on the terminating agency's behalf in accordance with the Contract's termination clause, plus any net increase in cost to the agencies not terminating this MOU as a result of the withdrawal of the terminating agency. The date of termination shall be the date that notice of termination is deposited in the U.S. mail, postage paid. When so given, such notice shall be effective from the date of mailing of same. 3. Any notice required or permitted under this MOU may be personally served on the other party by the party giving notice or may be served by United States mail to the following addresses: For NCTD For MTS 810 Mission Avenue 1255 Imperial Avenue, Suite 1000 Oceanside, CA San Diego, CA Attn: Matthew Tucker Attn: Paul Jablonski 4. That unless it is amended by the parties, in writing, this MOU shall continue in effect unless or until a party to the MOU gives 60 (sixty) days written notice of its desire to withdraw from the MOU. If such notice is given, the MOU shall continue to be binding on those parties who have not formally withdrawn. 5. The indemnification provisions of this MOU shall survive termination of the MOU. 6. This MOU shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this MOU, the action shall be brought in a state or federal court situated in the County of San Diego, State of California. 7. All terms, conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 8. For purposes of this MOU, the relationship of the parties is that of independent entities and not as agents of each other or as joint ventures or partners. The parties shall maintain sole and exclusive control over their personnel, agents, consultants, and operations. 9. No alteration or variation of the terms of this MOU shall be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 10. Nothing in the provisions of this MOU is intended to create duties or obligations to or rights in third parties to this MOU or affect the legal liability of the parties to this MOU. 4

5 11. This MOU may be executed in any number of identical counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument when each party has signed one such counterpart. IN WITNESS WHEREOF, the Parties hereto have executed this MOU effective on the day and year first above written. SAN DIEGO METROPOLITAN TRANSIT SYSTEM NORTH COUNTY TRANSIT DISTRICT PAUL C. JABLONSKI Chief Executive Officer MATTHEW O. TUCKER Executive Director APPROVED AS TO FORM: APPROVED AS TO FORM: Office of General Counsel Office of General Counsel 5

6 Exhibit A to the MOU MTS DOC. NO. G (Cover Page) 6

7 Exhibit B to the MOU Initial Cost Allocation 7