TEAMING AGREEMENT BETWEEN COMPANY NAME
AND
BOARD OF REGENTS, of the NEVADA SYSTEM OF HIGHER EDUCATION
On behalf of
DESERT RESEARCH INSTITUTE
ARTICLE 1
INTRODUCTION
1.1This Agreement is made on ______, betweenCompany Name located at ______(hereinafter referred to as "Company"), and the Board of Regents of the Nevada System of Higher Education on behalf of the Desert Research Institute, a nonprofit having its principal offices at 2215 Raggio Parkway, Reno, NV 89512 (hereinafter “DRI”)
1.2COMPANY intends to submit a Proposalto the______(hereinafter referred to as “Client”) in response to Solicitation No. ______anticipated to be issued in ______. As of the date of this agreement, a draft Statement of Work is available at ______.
1.3COMPANY and DRImutually agree that, by cooperating in the submission of a proposal they will be fully responsive to the requirements of performance specification and will submit a proposal that will offer the greatest possibility of an award to COMPANY, and thereafter an award of a Subcontract toDRI, upon the terms and conditions herein stated.
1.4In consideration of these premises, the Parties mutually agree as follows:
ARTICLE 2
PROPOSAL ACTIVITIES
2.1COMPANY RESPONSIBILITIES: COMPANY will act as the Prime Contractor and will exercise overall management during the development of the Proposal. COMPANY will prepare technical/professional data as necessary for the proposal, include DRI as a subcontractor in the proposal, integrate the data furnished by DRI and submit the integrated proposal to the Client. COMPANY will have ultimate responsibility for the contents of the integrated proposal and will consult with DRI on issues affecting data submitted by DRI to COMPANY.
2.2 SUBCONTRACTOR RESPONSIBILITIES: DRI will furnish to COMPANY, in a timely fashion, complete and full information of a management, technical and cost nature as required for that portion of the proposal assigned to DRI as described in Attachment A, Statement of Work. The proposal to the Client will be presented as a team effort and will identify DRI as the proposed Subcontractor for DRI work effort. All prices, cost estimates, or quotations for subcontracted work submitted to COMPANY for inclusion in the proposal will be approved by a DRI representative empowered to authorize bids. DRI will furnish preferred-client pricing to COMPANY so as to not provide pricing higher than that bid to other preferred clients for work of the same type and amount. DRI will support and participate with COMPANY in negotiations for award of a subcontract in the area of responsibility proposed by DRI as reasonably requested by COMPANY. If DRI has questions or concerns regarding the procurement during the time period the RFP is open for competition, the parties will collaborate and jointly contact and solicit a response from the Client.COMPANY agrees to promptly advise DRI of all changes to the solicitation and/or Client’s requirements which affect DRI’s areas of responsibility or the prices proposed for such work.
2.3EXCLUSIVE EFFORT: DRI agrees that in consideration of being included in COMPANY’s Proposal, DRI will not (a.) collaborate or join with any other firms in any additional and/or competing Proposal in response to the RFP; or(b.) submit a Proposal of its own as a Prime Contractor in direct competition with COMPANY. This exclusion shall not be construed so as to prohibit DRI from the provision of any services to any other entity in connection with the RFP if this Agreement has been previously terminated, and/or another entity has been chosen by Client for the award.
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2.4PROPOSALCOSTS: Unless otherwise agreed to in writing, each party will respectively bear all of its own expenses, costs, risks, and liabilities arising from each party’s obligations and efforts under this Agreement during the Proposal preparation period, up to the time of Award. DRIshall not have any right to claim reimbursement, payment or compensation of any kind from COMPANY during the Proposal period and up to the time of award of any Subcontract. COMPANY will bear the expense of publishing and delivering the Proposal to Client.
ARTICLE 3
PAST PERFORMANCE
To enable COMPANY to demonstrate successful past performance in the proposal, DRI will submit past performance information upon request. If DRI knows or has reason to know that a past performance evaluation may be adverse,DRI will advise and will submit sufficient information for COMPANY to assess the impact of the past performance evaluation on the proposal and prepare a mitigation strategy.
ARTICLE 4
AWARD OF PRIME CONTRACT
4.1SUBCONTRACT IMPLEMENTATION: If a Contract is awarded to COMPANY by Client resulting from the Proposal, the parties shall, in good faith and in a timely manner, negotiate a mutually acceptable Subcontract pursuant to the provisions of this Agreement and the Award between COMPANY and Client, including the flow down of mandatory and necessary clauses to the Subcontractor. The Subcontract will identify COMPANY as the Prime Contractor andDRIasSubcontractor. It is understood by the parties that any such Subcontract or modifications thereto are subject to:
a)negotiation of mutually satisfactory terms and conditions appropriate under the Prime Contract and other terms and conditions as mutually agreed upon,
b)mutual agreement on those portions of the statement of work, technical requirements, delivery schedules, price, and terms and conditions not agreed to prior to submission of the Proposal, and
c)approval by the Client, if required.
In the event a disagreement between the Parties concerning the Subcontractor’s scope of work, price, delivery, or provisions of the Subcontract is not resolved through good faith negotiations within in reasonable time, but not exceeding sixty (60) calendar days from the date of award of the Prime Contract, COMPANY shall have the right, without prejudice, to terminate this Agreement and enter into other agreements with other vendors to fulfill the requirements.
4.2SUBCONTRACTORAPPROVAL BY CLIENT: COMPANY will use reasonable efforts to ensure thatDRIwill be approved by Client as a Subcontractor and that Subcontractor’s proposed area of responsibility is approved by Client as proposed.
4.3FOLLOW-ON WORK: If Client authorizes additional work under the Contract,the Subcontractor will be permitted to participate in any follow-on work, as appropriate and consistent with the particular expertise that the Subcontractor brings to the project. The specifications and compensation for such additional work will be contained in a further written agreement between the Parties.
4.4COMMUNICATION DURING PROJECT: COMPANY and DRI staff shall regularly communicate with each other on any issues of concern or any changes in the program. Technical issues will be discussed between technical staff. Any issues involving changes in schedules, costs, or types of analyses to be delivered will be coordinated through COMPANY and DRI Subcontracts personnel. At a minimum, a quarterly phone call will be offered to discuss issues or problems, including recommendations or options for maximizing logistical efficiencies in the subcontracting of work by COMPANY to DRI and the performance of such work by DRI.
The anticipated Subcontract is to be funded in whole or in part with funds from the United States Government. No privity between the Government Client and Subcontractor shall be established by the Subcontract. All communications regarding the Subcontract must be directed to COMPANY and not to COMPANY’s Government Client. During Subcontract performance it may become necessary for DRI to communicate directly with COMPANY’s Government Client regarding technical and logistical issues relating to the analyses performed under DRI’s Subcontract. When such circumstances arise, DRI shall provide COMPANYtimely advance notice of DRI’s intent to contact Client and the COMPANY-DRI team will contact Client together, unless COMPANY waives its right to participate as Prime Contractor. However, if upon contacting the Client the Client indicates that the communication should be between the Client and COMPANY as Prime Contractor, the parties shall comply with Client’s directive.
Should it become necessary for COMPANY to communicate with COMPANY’s Government Client regarding DRI’s Subcontract, COMPANY shall provide DRI timely advance notice of COMPANY’s intent to contact Client and provide DRI an opportunity to participate in communicating with Client. However, if upon contacting the Client the Client indicates that the communication should be between the Client and COMPANY as Prime Contractor, the parties shall comply with Client’s directive.
ARTICLE 5
TERM AND TERMINATION
5.1TERMINATION: Except as related to proprietary data, all the rights and obligations of the parties to this Agreement shall terminate when one of the following events occurs:
a)Notice from Client that the RFP has been canceled or that the Contract will not be awarded to COMPANY;
b)Award to other offerors, to the exclusion of COMPANY for all or substantially all of the project work contemplated by this Agreement;
c)Execution by both parties of the Subcontract contemplated by this Agreement;
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d) Failure to obtain Client's consent to place the Subcontract;
e) Judicial determination that either party is insolvent or bankrupt pursuant to the provisions of any state or federal insolvency law, or the appointment of a receiver or trustee of the property by reason of either party's insolvency or inability to pay its debts, or the assignment of substantially all of either party's property made for the benefit of that party's creditors; and
f) Mutual agreement of the parties.
g)The expiration of 18 months from the effective date hereof; provided, however, if this procurement is still under consideration by the Client upon the expiration of the 18 month period, this Agreement shall continue in force until terminated pursuant to one of the forgoing conditions.
The obligations and duties set forth in Article 6 governing proprietary information shall survive any such termination described in 5.1 herein.
ARTICLE 6
PROPRIETARY INFORMATION
6.1PROPRIETARY DATA: Preparation and submission of the Proposal, including the conduct of negotiations, may require the exchange of data and information considered proprietary to the parties. To the extent that such data or information is so identified in writing by the disclosing party at the time of exchange, the receiving party agrees to hold such proprietary data and information in the strictest confidence for a period of three (3) years from the date of this Agreement, and further agrees that, within that period of time it will not use any such proprietary data or information except in connection with this proposal, and will not disclose or use for its own purposes any such proprietary data unless authorized in writing by the party originally furnishing such data or information.
The provision of this Article 6 shall not apply to data or information in the public domain at the time it was disclosed, or known to the party receiving it at the time of disclosure, or which becomes known to the receiving party independently of the disclosing party without breach of this Agreement, or which is independently developed by the receiving party.
The receiving party shall not be liable for the disclosure of such proprietary data or information which results from the intended and necessary use of the data or information in the course of joint activities between the parties, nor the inadvertent or accidental disclosure of such data or information which occurs despite the exercise of the same degree of care as the party receiving normally takes to preserve its own proprietary data or information, nor for disclosure of such data or information pursuant to judicial or governmental action.
Exclusive points of contact for transmitting and controlling proprietary information under this Agreement are:
For:Company NameFor:Desert Research Institute
______2215 Raggio Parkway
______Reno, NV89512
______Attn:
Attn:
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6.2NO LICENSE: It is agreed that no license in any intellectual property rights of either party is granted by this Agreement or by any disclosure of proprietary information hereunder.
6.3DATA RIGHTS: Certain data may be furnished to a party with limited rights, including, but not limited to, restrictions on use, licensing, sublicensing, assignment, copying, or modification. The receiving party agrees to observe such limitations or restrictions as may be imposed by the giving party provided, however, that each such unit of data is prominently marked as being subject to limited or restricted rights.
6.4INVENTIONS: All inventions made during the performance of this Agreement shall be the sole property of the party employing the inventor conceiving such invention or inventions. The parties shall have joint title to any invention jointly conceived by them during the performance of this Agreement and may each independently grant licenses thereunder without the prior approval of, or obligation to, the other party.
ARTICLE 7
GENERAL PROVISIONS
7.1PUBLICITY: Any news release, public announcement, advertisement or publicity proposed to be released concerning the Application or the activities of either party in connection with this Agreement or the resulting Subcontract shall be released only upon mutual review and agreement of the parties.
7.2CONFLICT OF INTEREST: DRIshall notify COMPANY immediately of any reasonably perceived potential conflict of interest arising from the provision of services to any other organization, government entity, or corporation through the term of this Agreement.
7.3RELATION OF THE PARTIES: It is mutually agreed and understood as follows:
(a)That each party will use reasonable efforts to furnish to the other such cooperation, assistance, and information as may be necessary to ensure the best possible Proposal;
(b)This Agreement shall only relate to the Proposal submitted hereunder and any resulting Subcontract and shall not relate to any other unrelated activities undertaken by the parties, either jointly or independently. Subject to the terms of this Agreement, nothing contained herein shall preclude either party from its normal marketing effort in connection with its products and services; and
(c)That the parties in all matters shall be acting as independent contractors, and no legal entity or relationship of any kind shall be deemed to arise herefrom, either between the parties themselves or between the parties hereto or other individuals, organizations, corporations, or the Government; and it is specifically agreed that this Agreement does not give effect to a joint venture, partnership, or formal business organization of any kind. Except for the preparation and submission of the Proposal and the mutual support to be provided between the parties hereto toward the attainment of an award thereunder, no actions, obligations, or commitments of any nature of either party hereto shall be binding upon the other party.
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7.4NOTICES: All contacts that may be required between the parties hereto to effectuate the terms of this Agreement shall be directed to the following:
For:Company NameFor: Desert Research Institute
______2215 Raggio Parkway
______Reno, NV89512
______
Attn:Attn:
7.5AUTHORIZATION TO CONTRACT: Each party represents and warrants to the other that it is a corporation duly organized and validly existing in the state indicated in this Agreement and is or will become duly qualified and in good standing under the laws of all states in which it is required to be qualified in order to conduct the business covered by the Proposal. Further, each party represents that it has full corporate power and authority to enter into this Agreement and to do all things necessary for the performance of the Subcontract contemplated herein.
7.6CHOICE OF LAW: This agreement shall be interpreted and construed in accordance with the laws of the State of Nevada.
7.7CAPTIONS: The captions of this Agreement are for convenience and reference only and in no way define, describe, extend, or limit the scope or intent of this Agreement or the intent of any provision hereof.
7.8SUCCESSORS: This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, personal representatives, and assigns.
7.9ASSIGNMENT: Neither this Agreement nor any interest herein may be assigned, in whole or in part, by either party hereto without the prior written consent of the other party hereto.
7.10WAIVER; PARTIAL INVALIDITY: Failure of either party to exercise any power or right granted hereunder shall not constitute a waiver of that party's right thereafter to demand compliance with the terms hereof; and if any clause or provision hereof is determined to be invalid, illegal or incapable of being enforced by reason of any rule of law or public policy, that clause or provision shall be deemed severable from the remaining provisions of this Agreement, and all other conditions and provisions shall remain in full force and effect and binding on the respective parties to this Agreement, to the extent the substantive objectives may continue to be met.
7.11NON-SOLICITATION: During the term of this Agreement, and for one year thereafter, neither party shall (i) induce, or attempt to induce, any employee of the other party to quit the other party’s employ, and (ii) recruit or hire away any employee of the other party. However, this shall not be construed to restrict, limit or encumber an employee’s rights granted by law.
7.12AMENDMENTS: This Agreement shall not be amended or modified unless the amendment or modification is set forth in a document executed by duly authorized representatives of both parties.
7.13 ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the two parties with respect to the subject matter. All prior agreements, representations, statements, negotiations, and understandings are superseded.
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IN WITNESS WHEREOF, this Agreement has been executed by persons who are properly authorized to legally bind these respective organizations. Each party acknowledges that it has read the Agreement, understands it, and agrees to be bound by its terms.
COMPANY NAMEBOARD of REGENTS, NEVADA SYSTEM OF HIGHER EDUCATION on behalf of the Desert Research Institute
______
ByBy
______
NameName
______
TitleTitle
______
DateDate
Attachment: Exhibit A – Statement of Work
Attachment A
STATEMENT OF WORK
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