HomeMy WebLinkAbout10/18/2011 10 Commuter Service Contract and Vehicle Lease Agreement with HopeSource •
A BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. ''' I
For Meeting of: October 18, 2011
ITEM TITLE: Resolution authorizing and directing the City Manager of the City of Yakima to
execute the two -year commuter service contract and vehicle lease agreement
with HopeSource to provide service between the cities of Yakima and
Ellensburg, WA.
SUBMITTED BY: Chris Waarvick, Public Works Director, 576 -6411
CONTACT PERSON/TELEPHONE: Ken Mehin, Transit Manager, 576 -6415
SUMMARY EXPLANATION: Yakima Transit obtained grant funding from the Washington State
Department of Transportation for a demonstration project to provide commuter transit services
between the cities of Yakima and Ellensburg, WA. The program is a partnership between
Yakima Transit and HopeSource. HopeSource provides fixed -route transit services in
Ellensburg under a contract with Central Washington University. Central Washington University
is funding HopeSource's portion of the match for the grant. October 31, 2011, is the anticipated
start date for the service, which will last for two years.
Resolution X Ordinance Contract X Other_(Specify)
Funding Source Transit Sales Tax
APPROVAL FOR SUBMITTAL: XV�4./#6
City Manager
STAFF RECOMMENDATION: Adopt the resolution authorizing and directing the City Manager
to enter into an operating contract and lease agreement with HopeSource to provide fixed -route
commuter service.
BOARD RECOMMENDATION: The Council Transportation - Utilities Committee supports the
partnership.
COUNCIL ACTION:
RESOLUTION NO. R -2011-
A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute
the two -year commuter service contract and vehicle lease agreement with
HopeSource to provide service between the cities of Yakima and
Ellensburg, WA.
WHEREAS, the City of Yakima applied for grant funding under the Washington State
Department of Transportation's Consolidated Grant Program in partnership with HopeSource to
fund a fixed -route commuter service demonstration project that will operate in and between the
cities of Yakima and Ellensburg, WA; and,
WHEREAS, under the agreement, the grant will fund 50% of the total project costs,
Yakima Transit will be responsible for 25% and HopeSource will be responsible for the other
25% of the project's anticipated cost of $528,000 for the two -year period with fares for this
service offsetting some of the associated costs which are set at $3 for a one -way ticket or $100
for an unlimited monthly pass; and,
WHEREAS, Yakima Transit provides fixed -route transit services in and through the cities
of Yakima and Selah; and,
WHEREAS, HopeSource, a nonprofit organization located in Ellensburg, WA, provides
fixed -route transit services in and through the city of Ellensburg and portions of Kittitas County;
and,
WHEREAS, the Washington State Department of Transportation awarded funding on
June 1, 2011; and,
WHEREAS, after the funding was awarded to Yakima Transit, it was determined that
state law prohibits Yakima Transit from operating the service as proposed, as a result, the
WSDOT grant award has been transferred to HopeSource, our partner in this venture; and,
WHEREAS, in order to facilitate the awarded grant funding, it is necessary and in the
City's best interest to enter into an agreement with HopeSource for operating the service and
leasing vehicles necessary to provide the service; and
WHEREAS, the parties are continuing to review and negotiate provisions of the
agreement relating to insurance coverage, with such insurance issues to be resolved between
the parties soon; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager of the City of Yakima is authorized and directed to execute an
agreement with HopeSource entitled the Ellensburg — Yakima Commuter Service Contract with
Vehicle Lease Agreement substantially similar to the attached documents. The City Council
further authorizes minor editing changes to the attached documents as well as changes on the
insurance protection for the City, said changes to be approved by the City Manager in
consultation with the City Attorney.
ADOPTED BY THE CITY COUNCIL at a regular meeting this 18th day of October, 2011.
Micah Cawley, Mayor
ATTEST:
Deborah Kloster, City Clerk
Ellensburg- Yakima Commuter Service Contract
THIS ELLENSBURG- YAKIMA COMMUTER SERVICE CONTRACT (hereinafter
"Contract ") is made and entered into by and between the City of Yakima, a Washington
municipal ,corporation (hereinafter "City "), and HopeSource, a nonprofit 501(c)(3) corporation
that operates fixed -route transit services within the City of Ellensburg (hereinafter "Contractor").
WHEREAS, Yakima Transit has determined that City of Yakima residents need public
transportation services to the City of Ellensburg for education and employment; and, that
residents of the City of Ellensburg need public transportation services to the City of Yakima for
education, medical /health, shopping, and employment.
WHEREAS, the City applied for funding through the Washington State Department of
Transportation's (WSDOT) Consolidated Grant Program under a joint application with
Contractor in order to provide the needed services.
WHEREAS, the funding was awarded to the City of Yakima and upon further review it
was determined in order to comply with Washington State statutes that the grant award needed
to be transferred to Contractor and that the City contract for their portion of the services.
WHEREAS, the grant award and contract are a mutual benefit to both parties and in the
best interest to the City of Yakima.
WHEREAS, Contractor has the experience and expertise necessary to perform the
services being contracted for and has been in business since 1966.
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
agreements setforth herein, it is agreed by and between the City and Contractor as follows:
1. Term. This Agreement shall commence upon execution of this agreement and shall
terminate when the grant funding the program terminates, unless terminated earlier by either
party in accordance with Section 25 of this Agreement. In no instance shall this contract go
beyond the two -year grant period as stated in the grant contract between Contractor and
WSDOT, unless mutually agreed to between the parties in writing.
2. Scope of Services. Contractor shall provide the City with commuter fixed -route services
between the cities of Yakima and Ellensburg Monday - Friday with eight round trips (see
Exhibit B - Ellensburg- Yakima Commuter Service Schedule) in conjunction with the grant
contract they have with the Washington State Department of Transportation attached and
incorporated as "Exhibit C — Consolidated Grant Contract."
The days of operation required under this contract include every day of the weekday.
Yakima Transit does not provide local fixed -route transit services on New Years Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas Day. Service
may be reduced or excluded for those days, as well as ML King Day, President's Day,
Veterans Day, or the day after Thanksgiving.
In the event the HopeSource driver in Yakima, is sick or not able to drive, in order to maintain
the reliability of the program, Yakima Transit shall drive a bus to the 15 -mile point between
Ellensburg and Yakima.
The scope of services may be modified by mutual written agreement of the parties.
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3. Compensation.
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A. Compensation for Services. As consideration for the services performed pursuant to this
Agreement, the City agrees to compensate Contractor at the rate of twenty -five percent
of the total cost to provide the service less expenses for any fares provided by clients. In
no event shall the amount paid by City exceed the amount paid by WSDOT for this
service or exceed $132,000 in total over the two -year period. Passenger fares shall be
used to reduce the total cost of the service before Contractor bills for the service
provided.
B. Payment for Compensation. Contractor shall provide the City with an itemized
invoice /billing no later than thirty (30) calendar days from the end of each three -month
quarter. In the event any of the amounts claimed are in the opinion of Yakima Transit
non - compensable under the Contract, Yakima Transit shall immediately inform
Contractor of it's position in this regard with specifics as to why Yakima Transit believes
the amounts claimed to be non - compensable. In the event of a dispute between the
parties with regard to this issue, either party may pursue damages or compensation
owed, and the provisions of paragraph 25B shall apply.
The City shall make payment to Contractor within thirty (30) calendar days upon receipt
of each invoice /billing. In the event the City believes that the services provided by
Contractor do not conform with its obligations under this Contract, the City may provide
Notice of Default pursuant to paragraph 25B herein.
C. Source of Funds. The source of funds used for City's portion of compensation under this
agreement is through the City of Yakima's Transit sales tax revenue. Contractor shall
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receive any reimbursements from WSDOT under the terms of the grant contract, as well
as fare revenues for the service provided.
D. Vehicle Leases. As alternative compensation, the City shall, under a separate lease
agreement attached as "Exhibit A - Vehicle Lease Agreement," provide vehicles
necessary to operate the services rendered under this contract.
E. Payment in the Event of Termination. In the event that either party terminates this
Agreement pursuant to Section 25, either party shall be compensated on a pro -rata
basis for services provided under this Agreement up to the effective termination date.
4. Passenger Payments.
A. Fares. Fares shall be charged to each individual using the service. The fare to be
charged shall be $3.00 for each one -way trip ($6.00 roundtrip). Fare amount may be
adjusted /changed upon mutual agreement once service has begun. No fare changes
will be made unless expressly agreed to, in writing, by the City and Contractor.
B. City -to -City Service. It is mutually agreed between the parties that once the passenger
pays the one -way commuter fare between the two cities, that no additional fares shall be
charged to the passenger for transfers on fixed -route services within the respective
cities. The City may charge $3 fares prior to the passenger boarding the commuter
route and remit any payments to Contractor. A special transfer slip indicating that the
fare was paid to Yakima Transit is needed in order for the Contractor to receive
payment. Upon payment to the City, the City shall provide the passenger with a ticket or
transfer that shall be acceptable payment for services provided.
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® C. Service in Yakima. Passengers may use the commuter service within the Yakima Area
at a reduced fare when not headed to Ellensburg. The cost for that fare is $0.75 for
commuter services provided between the Perry Tech location and the Firing Center
location.
D. Passenger Passes - Monthly. Passengers may purchase a monthly pass, which shall
act as payment for services provided. The price of a monthly pass shall initially be set at
$100.00 per month. Pass price may change in the future, but not until agreed to, in
writing by City and Contractor. Yakima Transit shall design the passes and distribute
them to Ellensburg for sale. Monthly commuter passes shall also be valid for intercity
transit services. Monthly passes shall only be sold .at mutually agreed upon locations
and not on the bus /vehicle.
5. Marketing. The parties to this contract shall be responsible for advertising within their own
jurisdiction to market the service being provided under this contract. , Marketing shall be
coordinated between the parties to prevent too little or too much advertising. All advertising
or marketing materials for this service must be approved by the parties, in writing, prior to
dissemination or distribution. Costs associated with marketing shall be considered
contribution to the total amount required to be paid under the contract.
6. Reporting Requirements. The quarterly invoice submitted by the Contractor must be
accompanied by progress reports for the period detailing actual vehicle miles, actual vehicle
revenue miles, actual vehicle hours, actual vehicle revenue hours, unlinked passenger trips,
and passenger miles traveled to provide the service rendered in performance of the contract
broken down for each month. All necessary reporting must be submitted to Yakima Transit
® with any invoice or request for payment. Any deviation from this requirement must be
specifically approved in writing by Yakima Transit's Manager in advance.
7. Coordination of the Work. The City designates the Transit Manager or a designee as its
representative authorized to act on its behalf in the direction of the work under this
Agreement. Contractor designates the Chief Operations Officer or a designee as its
representative authorized to act on its behalf in the direction of the work under this
Agreement. This authority of the designated official does not extend to issuing directives
outside the scope of or contradictory to the provisions of this Agreement. Said
representative shall have full authority to direct all affairs in respect to the work performed
under this Agreement. Any designation beyond those specifically stated herein to act on
the authority of either party shall be in writing provided to the other party and revoked in the
same manner.
8. Independent Contractor Status of Contractor. Contractor and the City understand and
expressly agree that Contractor and its employees are independent contractors in the
performance of each and every part of this Agreement. Contractor, as an independent
contractor, assumes the entire responsibility for carrying out and accomplishing the services
required under this Agreement. Additionally, and as an independent contractor, Contractor
and its employees shall make no claim of City employment nor make any claim against the
City for any related employment _benefits, social security, retirement benefits or benefits of
any kind that are normally an incident of employment. Nothing contained herein shall be
interpreted as creating a relationship of servant, employee, partnership, or agency between
Contractor or any officer, employee, or agent of Contractor and the City.
• 9. Taxes and Assessments. Contractor shall be solely responsible for compensating its
employees and for paying all related taxes, deductions, and assessments, including but not
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limited to, federal income tax, FICA, social security tax, assessments for unemployment and
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industrial injury, and other deductions from income which may be required by law or
assessed against either party as a result of this Agreement.
10. Compliance With Law. Contractor agrees to perform all services under and pursuant to
this Agreement in full compliance with any and all applicable laws, rules, and regulations
adopted or promulgated by any governmental agency or regulatory body, whether federal,
state, local, or otherwise. Contractor shall obtain all applicable and necessary licenses,
permits, and approvals of any federal, state, or local government or governmental authority.
11. Federal Requirements And Changes. The Contractor shall at all times comply with all
applicable Federal Transit Administration (FTA) regulations, policies, procedures and
directives, including without limitation those listed directly or by reference in the Master
Agreement (Form FTA MA -6 dated October 1, 2001) between Yakima Transit and FTA, as
they may be amended or promulgated from time to time during the term of this Agreement
as well as the terms and conditions of the grant agreement (GCA `+ :Fti':') between
Contractor and WSDOT. The Contractor's failure to so comply shall constitute a material
breach of this Agreement.
12. Insurance. It is understood the City is not required to and will not maintain liability
insurance for Contractor and /or its officers, employees, agents, instructors, and /or
subcontractors and that such insurance is the sole responsibility of Contractor.
13. Indemnification and Hold Harmless.
A. Contractor agrees to protect, defend, indemnify, exonerate, and hold harmless the City,
its elected officials, agents, officers, employees from any and all claims, demands,
losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all
judgments, awards, costs and expenses (including attorneys' fees and disbursements)
resulting from Contractor's performance and /or nonperformance of this Agreement.
B. In the event both the Contractor and the City are negligent, the Contractor's liability for
indemnification of the City shall be limited to the contributory negligence for any resulting
suits, actions, claims, liability, damages, judgments, costs, and expenses (including
reasonable attorney's fees) that can be apportioned to the Contractor, its officers,
employees, agents, and /or subcontractors.
C. Nothing contained in this Section or this Agreement shall be construed to create a
liability or a right of indemnification in any third party.
14. Commercial Liability Insurance. Upon this Agreement being fully executed by the parties,
the Contractor shall provide the City with a certificate of insurance as proof of commercial
liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) per
occurrence combined single limit bodily injury and property damage, and Two Million Dollars
($2,000,000.00) general aggregate. The certificate shall clearly state who the provider is,
the coverage amount, the policy number, and when the policy and provisions provided are in
effect. Said policy shall be in effect for the duration of this Agreement. The policy shall
name the City, "its elected officials, officers, agents, and employees as additional insureds,"
and shall contain a clause that the insurer will not cancel or change the insurance without
first giving the City thirty (30) calendar days prior written notice (any language in the clause
to the effect of "but failure to mail such notice shall impose no obligation or liability of any
kind upon the company" shall be crossed out and initialed by the insurance agent). The
insurance shall be with an insurance company or companies rated A -VII or higher in Best's
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Guide and admitted in the State of Washington. If the City is damaged by the failure of
Contractor to maintain the above insurance or to so notify the City, the Contractor shall bear
all costs attributable thereto.
15. Delegation of Professional Services. The services provided for herein shall be performed
by Contractor, and no person other than regular associates or employees of Contractor shall
be engaged upon such work or services except upon prior written consent of the City, which
consent shall not be unreasonably withheld, and except for incidental transit services for
unmet demand.
A. In the event that existing transit services cannot meet demand, incidental transit services
(ITS) should be contracted out to a private or public provider authorized by the
Washington State Utilities and Transportation Commission or the Washington State
Department of Transportation to operate public transportation services in the corridor
between the Cities of Yakima and Ellensburg, if feasible.
B. Compensation for. ITS shall not be more than $5.60 per passenger trip for the one -way
distance between the Cities of Yakima and Ellensburg or $1.25 per passenger one way
between the Yakima Transit Center bus stop and the Yakima Firing Center bus stop.
Compensation shall not be provided for trips that begin and end within the same city.
C. Contractor shall notify City when demand exceeds available services and an ITS
provider has been requested to provide the service.
D. Both Contractor and the ITS provider shall keep records of the trips taken, which shall
• include: the date, time, A -to -B destination, and compensation (including any fares
received) for the trip provided. A voucher form signed by City or Contractor containing
information about the trip (provided by ITS provider) shall be submitted along with
invoice in order for provider to receive compensation.
E. When the ITS provider is enlisted to provide the service, the route the ITS provider shall
take shall be the same as the existing commuter service provided under this contract,
unless and until all contracted passengers have deboarded the service.
16. Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be
assigned or transferred in whole or in part by Contractor to any other person or entity
without the prior written consent of the City. In the event that such prior written consent to
an assignment is granted, then the assignee shall assume all duties, obligations, and
liabilities of Contractor stated herein.
17. Code of Ethics. Contractor agrees to maintain a written code or standards of conduct that
shall govern the performance of its officers, employees, board members, or agents engaged
in the award and administration of contracts. The code or standards shall provide that the
Contractor's officers, employees, board members, or agents may neither solicit nor accept
gratuities, favors, or anything of monetary value from any present or potential contractor or
subrecipient. Contractor may set minimum rules where the financial interest is not
substantial, or the gift is an unsolicited item of nominal intrinsic value. These codes or
standards shall prohibit the Contractor's officers, employees, board members, or agents
from using their positions for a purpose that constitutes or presents the appearance of
personal or organizational conflict of interest or personal gain. As permitted by state or local
law or regulations, such code or standards shall include penalties, sanctions, or other
disciplinary actions for violations by the Contractor's officers, employees, board members, or
agents, or by subcontractors or sub - recipients or their agents:
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A. Personal Conflict of Interest. Contractor's code or standards shall prohibit the
Contractor's employees, officers, board members, or agents from participating in the
selection, award, or administration of a contract supported by state funds if a real or
apparent conflict of interest would be involved. Such a conflict would arise when any of
the parties set forth below has a financial or other interest in the firm or entity selected
for award:
1. The employee, officer, board member or agent;
2. Any member of his or her immediate family;
3. His or her partner; or
4. An organization that employs, or is about to employ, any of the above.
B. Organizational Conflict of Interest. Contractor's code or standard of conduct must
include procedures for identifying and preventing real and apparent organizational
conflicts of interest. An organizational conflict of interest exists when the nature of the
work to be performed under a proposed third party contract may, without some
restrictions on future activities, result in an unfair competitive advantage to the third party
contractor' or impair its objectivity in performing the contract work.
18. Accounting Records.
A. Project Accounts. Contractor agrees to establish and maintain for the Project either a
separate set of accounts or separate accounts within the framework of an established
accounting system that can be identified within the contract. Contractor agrees that all
checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents
pertaining in whole or in part to the contract shall be clearly identified readily accessible
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and available to Yakima Transit and /or City of Yakima upon request, and, to the extent
feasible, kept separate from documents not pertaining to the contract.
B. Documentation of Contract Costs & Income. Contractor agrees to support all costs
charged to the contract, including any approved services contributed by the Contractor
or others, with properly executed payroll documents, time 'records, invoices, or contracts
describing in detail the nature and propriety of the charges. Contractor also agrees to
maintain accurate records of all program income derived from contract implementation.
19. Audits, Inspection, and Retention of Records.
A. Submission of Proceedings, Contracts, and Other Documents. During the course of the
contract and for six years thereafter, Contractor agrees to retain intact and to provide
any data, documents, reports, records, contracts, and supporting materials relating to
the Contract as the City of Yakima may require and contract closeout does not alter
these recording and record - keeping requirements. Should an audit, enforcement, or
litigation process be commenced, but not completed, during the aforementioned six -year
period then the Contractors obligations hereunder shall be extended until the conclusion
of that pending audit, enforcement, or litigation process.
B. General Audit Requirements. Contractor agrees to obtain any other audits required by
the City of Yakima. Contract closeout will not alter the Contractor's audit responsibilities.
C. Inspection. Contractor agrees to permit the City, State Auditor, or their authorized
representatives, to inspect all Contractor work materials, payroll, and other data, and to
audit the books, records, and accounts of the Contractor that pertain to the Project.
Contractor further agrees to require each third party to permit the City, State Auditor, or
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0 their duly authorized representatives, to inspect all work, materials, payrolls, and other
data and records involving third party contracts, and to audit the books, records, and
accounts involving that third party contract as it affects this Agreement.
20. Incorporation of FTA Terms. The following provisions include, in part, certain standard
Terms and Conditions required by DOT. All the contractual provisions required by DOT, as
set forth in FTA Circular 4220.1E, dated June 19, 2003, as amended, 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 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 Yakima Transit requests, which would cause Yakima
Transit to be in violation of the FTA terms and conditions.
A. Charter Service Operations - The contractor agrees to comply with 49 U.S.C. 5323(d)
and 49 CFR Part 604, which provides that recipients and subrecipients of FTA
assistance are prohibited from providing charter service using federally funded
equipment or facilities if there is at least one private charter operator willing and able to
provide the service, except under one of the exceptions at 49 CFR 604.9. Any charter
service provided under one of the exceptions must be "incidental," i.e., it must not
interfere with or detract from the provision of mass transportation.
B. Energy Conservation - 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.
4110 C. Clean Water -
1. The Contractor agrees to comply with all applicable standards, orders or regulations
issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C.
1251 et seq. The Contractor agrees to report each violation to the Purchaser and
understands and agrees that the Purchaser will, in turn, report each violation as
required to assure notification to FTA and the appropriate EPA Regional Office.
2. The Contractor also agrees to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance provided by
FTA.
D. Byrd Anti - Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying
Disclosure Act of 1995, P.L. 104 -65 [to be codified at 2 U.S.C. § 1601, et seq.] or as
hereinafter amended - Contractors who apply or bid for an award of $100,000 or more
shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying."
Each tier certifies to the tier above that it will not and has not used Federal appropriated
funds to pay any person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or employee of
Congress, or an employee of a member of Congress in connection with obtaining any
Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall
also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who
has made lobbying contacts on its behalf with non - Federal funds with respect to that
Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are
forwarded from tier to tier up to the recipient.
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Contractor further agrees that it has or will submit APPENDIX A, 49 CFR PART 20 --
CERTIFICATION REGARDING LOBBYING for every bid or offer submitted that exceeds
$100,000 in connection with this contract or related to the services provided hereunder.
E. Access To Records.
1. The Contractor agrees to provide Yakima Transit, the City of Yakima, or any of their
duly authorized representatives, or government agency access to any books,
documents, papers, and records of the Contractor that are directly pertinent to this
Agreement for the purposes of making audits, examinations, excerpts and
transcriptions. The Contractor agrees, pursuant to 49 CFR- § 633.17 to provide the
FTA Administrator or his /her authorized representatives including any PMO
Contractor access to Contractor's records and construction sites pertaining to a
major capital project, defined in 49 USC 5302(a)(1), which is receiving federal C2
financial assistance through the programs described at 49 USC §§ 5307, 5309, or
5311. The Contractor also agrees to permit any of the foregoing parties (at their
costs) to reproduce by any means whatsoever any excerpts and transcriptions as
reasonably needed, and to permit said parties to interview Contractor's employees
during work hours on the job. .
2. The Contractor agrees to maintain all books, records, accounts and reports required
under this Agreement for a period of not less than three (3) years after the date of
termination or expiration of this Agreement, except in the event of litigation or
settlement of claims arising from the performance of this Agreement, in which case
the Contractor agrees to maintain same until Yakima Transit, the FTA Administrator,
the Secretary of Transportation, the Comptroller General, or any of their duly
authorized representatives, have disposed of all such litigation, appeals, claims or
exceptions related thereto.
F. Federal Changes - Contractor shall at all times comply with all applicable FTA
regulations, policies, procedures and directives, including without limitation those listed
directly or by reference in the Master Agreement between 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.
G. Clean Air -
1. The Contractor agrees to comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The
Contractor agrees to report each violation to the Purchaser and understands and
agrees that the Purchaser will, in turn, report each violation as required to assure
notification to FTA and the appropriate EPA Regional Office.
2. The Contractor also agrees to include these requirements in each subcontract
exceeding $100,000 financed in whole or in part with Federal assistance provided by
FTA.
H. Recovered Materials - The contractor agrees to comply with all the requirements of
Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42
U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247,
and Executive Order 12873, as they apply to the procurement of the items designated in
Subpart B of 40 CFR Part 247.
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0 I. 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 FTA. It is further agreed that
the clause shall not be modified, except to identify the subcontractor who will be
subject to its provisions.
J. Program Fraud And False Or Fraudulent Statements And Related Acts.
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 CFR Part 31, apply to its actions
pertaining to this procurement. Upon execution of this Agreement, 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 this Agreement or the FTA
assisted project for which this Agreement is being performed.
411, 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. Part 53, the Government reserves the right to impose the penalties under 18
USC § 1001 "Fraud and False Statements" and the Program Fraud Civil Remedies
Act of 1986 (31 USC §§ 3801 -3812) 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 under this Agreement.
K. Suspension and Debarment
1. 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.
2. 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.
3. By signing and submitting its bid or proposal, the 'bidder or proposer certifies as
follows:
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The certification in this clause is a material representation of fact relied upon by
Yakima Transit. If it is later determined that the bidder or proposer knowingly
rendered an erroneous certification, in addition to remedies available to Yakima
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.
L. Contracts Involving Federal Privacy Act Requirements - The following requirements
apply to the Contractor and its employees that administer any system of records on
behalf of the Federal Government under any contract:
1. The Contractor agrees to comply with, and assures the compliance of its employees
with, the information restrictions and other applicable requirements of the Privacy Act
of 1974, 5 U.S.C. § 552a. Among other things, the Contractor agrees to obtain the
express consent of the Federal Government before the Contractor or its employees
operate a system of records on behalf of the Federal Government. The Contractor
understands that the requirements of the Privacy Act, including the civil and criminal
penalties for violation of that Act, apply to those individuals involved, and that failure
to comply with the terms of the Privacy, Act may result . in termination of the
underlying contract.
2. The Contractor also agrees to include these requirements in each subcontract to
administer any system of records on behalf of the Federal Government financed in
•
whole or in part with Federal assistance provided by FTA.
M. Civil Rights - 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 apply to the underlying contract:
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
10
0 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. Aqe - 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. 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 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.
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.
N. Breaches and Dispute Resolution
1. Disputes - Disputes arising in the performance of this Contract which are not
resolved by agreement of the parties shall be decided by mutual agreement between
• the parties or a mediator (mutually agreed to) if the parties cannot come to an
agreement. The decision of the mediator shall be final and conclusive unless within
ten (10) days from the date of receipt of its copy, either party files an appeal in court
of competent jurisdiction for further resolution.
2. Performance During Dispute - Unless otherwise directed by Yakima Transit,
Contractor shall continue performance under this Contract while matters in dispute
are being resolved.
3. Claims for Damages - Should either party to the Contract suffer injury, or damage to
person or property because of any act or omission of the party or of any of his
employees, agents or others for whose acts he is legally liable, a claim for damages
therefore shall be made in writing to such other party within a reasonable time after
the first observance of such injury of damage.
4. Remedies - Unless this contract provides otherwise, all claims, counterclaims,
disputes and other matters in question between the and the Contractor arising out of
or relating to this agreement or its breach will be decided by arbitration if the parties
mutually agree, or in a court of competent jurisdiction within Washington State.
411 5. Rights and Remedies - The duties and obligations imposed by the Contract
Documents and the rights and remedies available thereunder shall be in addition to
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and not a limitation of any duties, "obligations, rights and remedies otherwise imposed •
or available by law. No action or failure to act by Yakima Transit or Contractor shall
constitute a waiver of any right or duty afforded any of them under the Contract, nor
shall any such action or failure to act constitute an approval of or acquiescence in
any breach thereunder, except as may be specifically agreed in writing.
O. Transit Employee Protective Provisions.
1. The Contractor agrees to the comply with applicable transit employee protective
requirements as follows:
a. General Transit Employee Protective Requirements - To the extent that FTA
determines that transit operations are involved, the Contractor agrees to carry
out the transit operations work on the underlying contract in compliance with
terms and conditions determined by the U.S. Secretary of Labor to be fair and
equitable to protect the interests of employees employed under this contract and
to meet the employee protective requirements of 49 U.S.C. A 5333(b), and U.S.
DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These
terms and conditions are identified in the letter of certification from the U.S. DOL
to FTA applicable to the FTA Recipient's project from which Federal assistance is
provided to support work on the underlying contract. The Contractor agrees to
carry out that work in compliance with the conditions stated in that U.S. DOL
letter. The requirements of this subsection (1), however, do not apply to any
contract financed with Federal assistance provided by FTA either for projects for
elderly individuals and individuals with disabilities authorized by 49 U.S.C. §
5310(a)(2), or for projects for nonurbanized areas authorized by 49 U.S.C. § •.
5311. Alternate provisions for those projects are set forth in subsections (b) and
(c) of this clause.
b. Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C.
5310(a)(2) for Elderly Individuals and Individuals with Disabilities - If the
contract involves transit operations financed in whole or in part with Federal
assistance authorized by 49 U.S.C. § 5310(a)(2), and if the U.S. Secretary of
Transportation has determined or determines in the future that the employee
protective requirements of 49 U.S.C. § 5333(b) are necessary or appropriate for
the state and the public body subrecipient for which work is performed on the
underlying contract, the Contractor agrees to carry out the Project in compliance
with the terms and conditions determined by the U.S. Secretary of Labor to meet
the requirements of 49 U.S.C. § 5333(b), U.S. DOL guidelines at 29 C.F.R. Part
215, and any amendments thereto. These terms and conditions are identified in
the U.S. DOL's letter of certification to FTA, the date of which is set forth Grant
Agreement or Cooperative Agreement with the state. The Contractor agrees to
perform transit operations in connection with the underlying contract in
compliance with the conditions stated in that U.S. DOL letter.
c. Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C.
5311 in Nonurbanized Areas - If the contract involves transit operations
financed in whole or in part with Federal assistance authorized by 49 U.S.C. §
5311, the Contractor agrees to comply with the terms and conditions of the
Special Warranty for the Nonurbanized Area Program agreed to by the U.S.
Secretaries of Transportation and Labor, dated May 31, 1979, and the
procedures implemented by U.S. DOL or any revision thereto.
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0 2. The Contractor also agrees to include the any applicable requirements in each
subcontract involving transit operations financed in whole or in part with Federal
assistance provided by FTA.
P. Disadvantaged Business Enterprise (DBE).
1. 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 %. Yakima Transit's overall goal
for DBE participation is 0 %. A separate contract goal has not been established for
this procurement.
2. 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 Yakima Transit deems appropriate. Each subcontract the
contractor signs with a subcontractor must include the assurance in this paragraph
(see 49 CFR § 26.13(b))
3. The successful bidder /offeror will be required to report its DBE participation obtained
through race - neutral means throughout the period of performance.
4. 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 Yakima Transit. In addition, the
contractor may not hold retainage from its subcontractors.
5. The contractor must promptly notify Yakima 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 Yakima Transit.
Q. Drug and Alcohol Testing. The contractor agrees to establish and implement a drug
and alcohol testing program that complies with 49 CFR Parts 653 and 654, produce any
documentation necessary to establish its compliance with Parts 653 and 654, and permit
any authorized representative of the United States Department of Transportation or its
operating administrations, the State Oversight Agency of (name of State), or the (insert
name of grantee), to inspect the facilities and records associated with the
implementation of the drug and alcohol testing program as required under 49 CFR Parts
653 and 654 and review the testing process. The contractor agrees further to certify
annually its compliance with Parts 653 and 654 before (insert date) and to submit the
Management Information System (MIS) reports before (insert date before March 15) to
(insert title and address of person responsible for receiving information). To certify
compliance the contractor shall use the "Substance Abuse Certifications" in the "Annual
List of Certifications and Assurances for Federal Transit Administration Grants and
• Cooperative Agreements," which is published annually in the Federal Register.
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21. Property Rights. All information concerning the City and said project, which is not
•
otherwise a matter of public record or required by law to be made public, is confidential, and
the Contractor will not, in whole or part, now or at any time disclose that information without
the express written consent of the City.
22. Contract Documents. This Agreement, which includes Exhibits A -C, constitutes the
Contract Documents and are complementary. Specific federal and State laws and the terms
of this Agreement, in that order respectively, supersede other inconsistent provisions. These
Contract Documents are on file in the Office of the Purchasing Manager, 129 N. 2nd St.,
Yakima, Washington, 98901, and are hereby incorporated by reference into this Agreement.
23. Severabilitv.
A. If a court of competent jurisdiction holds any part, term or provision of this Agreement to
be illegal, or invalid in whole or in part, the validity of the remaining provisions shall not
be affected, and the parties' rights and obligations shall be construed and enforced as if
the Agreement did not contain the particular provision held to be invalid.
B. If any provision of this Agreement is in direct conflict with any statutory provision of the
State of Washington, that provision which may conflict shall be deemed inoperative and
null and void insofar as it may conflict, and this Agreement shall be deemed modified to
conform to such statutory provision.
24. Non - Waiver. A waiver by Contractor or City of the breach of any provision of this Agreement
by the other party shall not operate or be construed as a waiver of any subsequent breach
by either party or prevent either party from enforcing any such provision.
25. Termination.
A. Termination for Convenience. Either party may terminate this Agreement, in whole or in
part, at any time by written notice to the other party. The Contractor shall be paid its
compensation, in accordance with the terms of this Agreement, up to the time of
termination. The Contractor shall promptly submit its termination claim to the City of
Yakima Purchasing Manager for final payment. If the Contractor has any property in its
possession belonging to Yakima Transit, the Contractor will account for the same, and
return it to Yakima Transit or dispose of it in the manner Yakima Transit directs.
B. Termination for Default, Breach or Cause. If either party fails to perform in the manner
called for in this Agreement, or if either party fails to comply with any other provisions of
this Agreement, the other party shall give written notice to said party of said default.
The party in default shall then have ninety (90) days in which to remedy the breach or
default and provide proof thereof to the other party. In the event the defaulting party fails
to remedy the breach or default of any of the terms, covenants, or conditions of this
Agreement within the 90 -day, period, and provide proof thereof to the other party, the
non - defaulting party shall have the right to terminate this Agreement without any further
obligation to the other party, and to pursue damages, compensation, and /or to pursue
damages, compensation, and /or any other legal remedies.
C. Waiver of Remedies for any Breach. In the event that Yakima Transit elects to waive its
remedies for any Contractor breach of any covenant, term, or condition of this
Agreement, such waiver shall not limit Yakima Transit's legal remedies for any
succeeding breach of that or any other term, covenant, or condition of this Agreement.
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26. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and
sent to the parties to their addresses as follows:
TO CITY: TO CONTRACTOR:
Ken Mehin, Transit Manager James Pappas, President
Yakima Transit HopeSource
3201 Fruitvale Blvd. 700 E Mountain View, Ste 501
Yakima, WA 98901 Ellensburg, WA 98926
or to such other addresses as the parties may hereafter designate in writing. Notices and /or
demands shall be sent by registered or certified mail, postage prepaid or hand delivered.
Such notices shall be deemed effective when mailed or hand delivered at the addresses
specified above.
27. Survival. Any provision of this Agreement that imposes an obligation after termination or
expiration of this Agreement shall survive the term or expiration of this agreement and shall
be binding on the parties to this Agreement.
28. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Washington.
29. Venue and Attorneys Fees. If a party is required to bring or maintain any action which
refers this document to an attorney for the enforcement of any of the terms and conditions of
this Contract, the prevailing party in such action shall, in addition to all other payments
required, receive from the other all the costs incurred by the prevailing party, including
• reasonable attorney fees and such costs and reasonable attorney fees which the prevailing
party may incur on any appeal. The venue for any action to enforce or interpret this
Agreement shall be laid in the Superior Court of Washington for Kittitas County, Washington
30. Authority. The person executing this Agreement on behalf of Contractor represents and
warrants that he /she has been fully authorized by Contractor to execute this Agreement on
its behalf and to legally bind Contractor to all the terms, performances and provisions of this
Agreement.
CITY OF YAKIMA CONTRACTOR
By: By:
Donald B. Cooper, City Manager James Pappas, President
Date: Date:
ATTEST:
By: Date:
Deborah Kloster, City Clerk
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Exhibit A - VEHICLE LEASE AGREEMENT
THIS VEHICLE LEASE, hereinafter "Lease" is made and entered by and between the
City of Yakima, a Washington municipal corporation, (hereinafter "City ") and HopeSource
Ellensburg (hereinafter "Contractor ").
WHEREAS, City has entered into an agreement with Contractor for the Contractor to
provide fixed -route commuter transportation services in and between the cities of Ellensburg
and Yakima.
WHEREAS, the City finds it to be in the best interests of the public to lease vehicles to
Contractor in accordance with the following terms and conditions in order for Contractor to
provide such public services.
NOW, THEREFORE, in consideration of the mutual covenants, promises, and conditions
set forth herein, it is agreed by and between the City and Contractor as follows:
A. Vehicles. The City hereby agrees to lease to Contractor those vehicles that are identified in
EXHIBIT A, which is attached to this Lease and incorporated herein by this reference, for
use by Contractor to provide fixed -route commuter service pursuant to an agreement
between City and Contractor. Vehicles may be added to and stricken from this list upon
mutual written agreement. The City of Yakima's Transit Manager shall have the authority on
behalf of the City of Yakima and HopeSource's Chief Operating Officer, or equivalent, shall
have the authority on behalf of HopeSource to modify Exhibit A.
B. Contractual Payment. Contractor agrees to pay the City a monthly rental charge of One
Hundred Dollars $100.00 g
( )per month per vehicle during the term of this Lease for any
cutaways leased and Four Hundred Dollars ($400.00) per month per vehicle during the term
of this Lease for any buses (thirty foot or larger) leased. The lease amount shall be
deducted from any payments the City makes to contractor under the Ellensburg- Yakima
Commuter Service Contract. In the event that the lease amount is more than what City
owes Contractor, City shall invoice Contractor quarterly under the same terms and
conditions stated in the Ellensburg- Yakima Commuter Service Contract and Contractor shall
pay the City within thirty (30) calendar days of receipt of the invoice. The monthly rental
charge for each vehicle shall be prorated in the first and last month of use based on when
the vehicle is picked up or returned.
C. Term. This Lease shall be effective when executed by the parties and shall continue in
existence so long as the Ellensburg- Yakima Commuter Service Contract is in effect, unless
terminated earlier as provided by Section U of this lease.
D. Licensing and Titling. The vehicle titles shall show the City as legal and registered owner.
All vehicles shall have exempt license plates. City shall be responsible for their portion of
the lease under the terms of the Ellensburg- Yakima Commuter Service Contract § 3.
E. Use of Vehicles. Contractor shall use the vehicles solely for commuter transportation under
the scope of the Ellensburg- Yakima Commuter Service Contract between the parties and for
no other purpose. Contractor agrees that it will not use or permit the use of the vehicles so
as to void any insurance covering same, or in a negligent manner, or permit the vehicles to
become subject to any liens, charges, or encumbrances. Contractor shall keep vehicle
maintenance and use records and shall submit to the City upon request such information as
16
is required in order to assure compliance with this section. Contractor shall immediately
notify the City if, during the term of this Lease, any vehicle is not used in the above -
described manner, is used in a manner different from that described in this Lease, or is
withdrawn from service. Contractor shall not sublease vehicles.
F. Maintenance of Vehicles.
1. Contractor shall maintain vehicles in good repair at all times. All services, materials, and
repairs required in connection with the use and operation of the vehicles, including but
not limited to tires, brake shoes, belts, oil, and other fluids shall be performed at
Contractor's sole expense, provided however that if Contractor has maintained the
vehicles as required by this Lease, then major repairs to the engine, transmission, and
axles over $5,000 shall be at the City's sole expense. A condition inspection shall be
conducted by Contractor, or its designated agent, prior to vehicle delivery, and said
inspection shall be detailed in writing and agreed to and signed off on by both parties
prior to Contractor taking delivery of each vehicle. •
2. The City requires the vehicles to be regularly serviced, including routine preventative
maintenance every 5,000 miles. At no time will the vehicle maintenance be less than the
service recommended by the manufacturer. Contractor will provide the City the mileage
for each of the vehicles by the tenth (10th) day of the month following along with copies
of weekly vehicle'status checklists of the vehicles' fluid levels and tire status.
3. Contractor agrees to inspect and service vehicles and replace parts, if necessary, at
intervals and according to the requirements contained in the manufacturer's
4111 maintenance schedule with the exception that repairs to the engine; transmission, and
axles shall be at the City's sole expense if Contractor has maintained the vehicles as
required by this Lease. Contractor shall take the vehicles to an appropriate service and
repair facility for any service and repairs required, or use their own facilities if such
facilities can be proven to be equivalent to a commercial shop.
4. Maintenance and service records, including original invoices (if applicable), shall be kept
on file for each of the vehicles and be provided to the City upon the expiration or
termination of this Lease. A copy of the work order shall be submitted to the City after
each routine preventive maintenance work performed by Contractor. Copies of other
service records shall be provided to the City upon request at any time.
5. Inspections are an important part of each vehicle's maintenance routine. Doing daily,
weekly, and monthly inspections will allow early detection of problems. Contractor
assumes the responsibility to ensure that scheduled inspections, at a minimum, are
performed in accordance with the manufacturer's recommendations.
6. Any modification to the vehicles or the installation of additional equipment that requires
mounting must be approved by the City in writing prior to installation.
G. Vehicle Appearance and Body Damage. Vehicles must be maintained to have no
apparent body or interior damage.
• 1. Body Damage. All damage to vehicles shall be repaired within thirty (30) days of the
occurrence in a high - quality manner. Any deviation from this timeline must be requested
in writing from Yakima Transit and approved prior to the expiration of the 30 -day
® timeline. Body damage repairs include all dents, rips or tears in the body, damage to
frame or unit construction, bent or collapsed bumpers, broken or missing lights, glass,
17
windows, windshields, vents, steps, seats, seatbelts, any and all additional accessories
•
added to the vehicle body, inside and out. Body damage shall also include cosmetic
repairs, excluding minor door dings. In summary, all damage that could determine an
unsafe operational condition for passengers and operator and /or lessen the value of
such vehicle or otherwise cause a misrepresentation of the safety, quality and
professionalism of the Contractor and City.
2. Maintenance.
A. Vehicles utilized to provide service under this agreement shall be kept in optimal
operating condition and maintained according to manufacturer's recommendations
as a minimum standard to minimize breakdowns and decrease the possibility of
accidents. A permanent record shall be kept of all maintenance and repairs.
Maintenance records must be available for inspection upon request.
B. Vehicles interior and exteriors must be clean and have exteriors free of broken
mirrors, windows, grime, rust, chipped paint or major dents which detract from the
overall appearance of the vehicle. Vehicle exteriors shall be washed at least twice
each week on non - consecutive days and within one day after each rain /snowfall, and
before being operated on any day if necessary to maintain a clean appearance.
C. The passenger compartments must be clean, dust -free, without torn upholstery or
floor coverings, damaged or broken seats and protruding sharp edges. Vehicle
interiors shall be swept and emptied of trash at least once daily and windows shall be
washed at least once a week. All vehicles shall be detailed thoroughly at least once a
month. The interior shall be free of dirt, odors, oil, grease or litter. The seatbelts shall
•
be clean and in proper working order.
D. Each vehicle will be expected to be maintained in compliance with the Minimum
Periodic Inspection Standards that have been established and that are in compliance
with the Federal Motor Carrier Safety Regulations, Pocketbook edition. Contractors
are encouraged to obtain a current copy of the Federal Motor Carrier Safety
Regulations, Pocketbook edition if they do not already have one.
3. Vehicle Safety Equipment.
Service vehicles shall be equipped with the following minimum safety equipment, which
shall be the Contractor's sole responsibility, after taking possession of the vehicles:
A. Two -way communications with Contractor base station.
B. Fire extinguisher, U.L. approved, appropriate for size and type of vehicle.
C. First aid kit (approved for capacity of vehicle).
D. Sterile gloves and Mouth to Mouth Barriers.
E. Reflective triangles or other similar warning device.
F. Flashlight.
G. Tire chains, sand or other traction devices (seasonal).
H. Seatbelt cutters.
18
0 I. Blood -borne pathogens kit.
J. Accident report forms and witness statement forms.
K. Secured storage for fare payments.
L. The safety equipment shall be properly maintained and kept in fully functional
condition. No vehicle shall be used to provide the service without functioning
seatbelts (if equipped), passenger lift, vehicle safety equipment, heater, and air
conditioning.
M. Passenger restraint equipment shall be used in accordance with Washington State
law. All passengers in wheelchairs shall be transported facing forward and shall be
secured with a minimum four -point ADA- certified securement system, which includes
a lap belt capable of being secured to the floor. All seatbelts and mobility device
securements must be used in accordance with manufacturers' specifications.
N. Passenger lifts shall, at a minimum, meet all ADA requirements including size and lift
capacity. Lifts shall be tested to insure ability to lift minimum weight required by the
ADA in accordance with federal regulations.
4. Vehicle Inspection. The City retains the right to inspect any and all vehicles utilized in
service under this contract (including maintenance and license records) at any time.
5. Failed Vehicle Inspections. If a vehicle fails a vehicle inspection, that vehicle MAY NOT be
utilized in for the service until the appropriate repair or correction has been made, the •
vehicle has been re- inspected and passed. Any vehicle that receives a notation of "Needs
Attention" may continue to remain in contract service since the fault is not judged to be a
safety issue, however the fault must be corrected before that vehicle is re- inspected in
either a scheduled or random inspection. Failure to correct a fault within a reasonable time
(20 days) is considered a material breach of the lease.
H. Graphics. The vehicle signs /decals shall be installed by City at the City's expense.
I. Pick -up of Vehicles. It shall be the responsibility of Contractor to pick up the vehicles at the
City's Public Works Facility on or before the date the service is to be provided under the
terms of this contract. The vehicles shall have full fuel tanks at the time of pick up.
Contractor shall provide proof of insurance at the time of pick up as specified in this Lease.
J.. Requirements at Expiration or Termination. At the expiration or termination of this Lease,
Contractor shall return the vehicles to the location specified by the City with full fuel tanks
and with the maintenance records for the rental period including original service and repair
invoices or internal work orders. Contractor shall return the vehicles in the same condition
as they were in at the inception of the Lease, ordinary wear and tear excepted. In the event
a vehicle is not returned in such same condition, ordinary wear and tear excepted,
Contractor shall pay the City for the cost of restoring any vehicle to said condition. The City
shall charge Contractor its cost of fuel to fill the tank(s) if the tanks are not filled.
K. Vehicles Provided "As Is" and "With All Faults." The vehicles that are the subject of this
Lease shall be provided on an "AS IS" and "WITH ALL FAULTS" basis. The City makes no
warranties of any kind whatsoever, express or implied, as to said vehicles and ALL
WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR ANY PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED AND EXCLUDED.
Notwithstanding any provision to the contrary, the terms of this section shall survive any
19
expiration or termination of this Lease. A condition inspection shall be conducted by
•
Contractor, or its designated agent, prior to taking delivery of each vehicle and said
inspection shall be detailed in writing and agreed to and signed off on by both parties prior to
Contractor taking delivery of each vehicle.
L. Liability.
1. The City shall not be liable to Contractor or to anyone else for any liability, loss or
damage of any kind, however caused or alleged to be caused, directly or indirectly by
any of the vehicles; or as a result of the repair, maintenance, or equipment thereof, by
any inadequacy thereof, or defect therein or by any incident in connection therewith, or
interruption of service or use of any vehicle provided pursuant to this Lease, or from any
liability of any nature growing out of performance of this Lease on the part of Contractor,
its officers, employees, contractors, or subcontractors unless said liability is caused by
the negligence of the City, it's agents, or it's employees.
2. To the maximum extent permitted by law, Contractor shall protect, indemnify, hold
harmless and defend the City and its officials, agents, officers, and employees from all
claims, actions, costs, damages and expenses of any nature whatsoever, including
attorneys' fees, arising out of, resulting from or connected with the acts, errors or
omissions of Contractor, its officials, assignees, agents, principals, sublessees,
contractors, subcontractors, licensees, invitees, employees, or any person whomsoever
under this Lease.
3. In the event that any lien is placed upon property of the City or any of its officers,
principals, agents, or employees as a result of the acts, errors or omissions of Contractor
•
or its officials, assignees, agents, sublessees, contractors, subcontractors, licensees,
invitees, or employees Contractor shall at once cause the same to be dissolved and
discharged by giving bond or otherwise. The City will be notified in writing immediately
of any such Tien.
4. Notwithstanding any provision to the contrary, the terms of this section shall survive any
expiration or termination of this Lease
M. Insurance. Contractor shall provide General Liability and Automobile Liability insurance for
vehicles operated by the Contractor pursuant to this Contract with limits of up to
$12,000,000.00 per occurrence.
N. Safety. Contractor shall ensure that the vehicles are maintained and operated in a safe and
prudent manner and that all drivers comply with existing state, federal, and local laws
regarding the operation of motor vehicles on the streets, roads, and highways of the state.
Contractor shall comply with all FTA drug and alcohol testing requirements.
0. Independent Contractor. Contractor and City understand and agree that Contractor is an
independent contractor in the performance of each and every part of this Lease. As such,
Contractor and its employees shall make no claim of City employment nor shall claim
against the City any related employment benefits, social security, and /or retirement benefits.
Nothing contained herein shall be interpreted as creating a servant, employee, partnership,
or agency relationship between Contractor and City.
P. Remedies Cumulative. All remedies provided in this Lease are distinct and cumulative to
any other right or remedy under this Lease or afforded by law or equity and may be
exercised independently, concurrently, or successively.
20
® Q. No Conflict of Interest. Contractor represents that it does not have any interest and shall
not hereafter acquire any interest, direct or indirect, which would conflict in any manner or
degree with the performance of this Lease. Contractor further covenants that it will not hire
anyone or any entity having such a conflict of interest during the performance of this Lease.
R. No City Obligation to Third Parties. No contract between Contractor and its contractors or
subcontractors shall create any obligation or liability for the City with regard to this Lease
without the City's specific written consent of such obligation or liability, notwithstanding its
concurrence in, or approval of, or the awareness of any contract or subcontract or the
solicitation thereof. Contractor hereby agrees to include this provision in all contracts it
enters into for the employment of any individuals, procurement of any materials, or the
performance of any work to be accomplished under this Lease.
S. Integration and Supersession. This Lease sets forth all of the terms and conditions
relative to the lease of vehicles as provided herein. No amendment or modification of this
Lease shall be effective unless reduced to writing and executed by the parties.
T. Severability.
1. If a court of competent jurisdiction holds any part, term or provision of this Lease to be
illegal, or invalid in whole or in part, the validity of the remaining provisions shall not be
affected, and the parties' rights and obligations shall be construed and enforced as if the
Lease did not contain the particular provision held to be invalid.
2. If any provision of this Lease is in direct conflict with any statutory provision of the State
® of Washington, that provision shall be deemed inoperative and null and void insofar as it
may conflict, and shall be deemed modified to conform to such statutory provision.
3. No controversy concerning any covenant or provision shall delay the performance of any
other covenant or provision except as herein allowed.
U. Termination. Either party may terminate this Lease with or without cause upon ninety (90)
days written notice to the other party. Contractor shall be liable for any payments due up to
the effective date of termination.
V. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and
sent to the parties to their addresses as follows: •
TO CITY: TO CONTRACTOR:
Ken Mehin, Transit Manager James Pappas, President
Yakima Transit HopeSource
3201 Fruitvale Blvd. 700 E Mountain View Ste 501
Yakima, WA 98901 Ellensburg, WA 98926
or to such other addresses as the parties may hereafter designate in writing. Notices and /or
demands shall be sent by registered or certified mail, postage prepaid or hand delivered.
Such notices shall be deemed effective when mailed or hand delivered at the addresses
specified above.
W. Non - Waiver. The waiver by Contractor or the City of the breach of any provision of this
Lease by the other party shall not operate or be construed as a waiver of any subsequent
110 breach by either party or prevent either party from thereafter enforcing any such provision.
21
X. Survival._ Any provision of this Lease that imposes an obligation after termination or •
expiration of this Lease shall survive the term or expiration of this Lease and shall be
binding on the parties to this Lease
Y. Governing Law. This Lease shall be governed by and construed in accordance with the
laws of the State of Washington
Z. Venue. The venue for any action to enforce or interpret this Lease shall lie in the Superior
Court of Washington for Kittitas County, Washington
AA.Authority. The person executing this Lease on behalf of Contractor represents and
warrants that they are fully authorized by Contractor to execute this Lease on its behalf and
to legally bind Contractor to all terms, performances, and provisions of this Lease.
BB.Attornev Fee Provision. If a party is required to bring or maintain any action which refers
this document to an attorney for the enforcement of any of the terms and conditions of this
Lease, the prevailing party in such action shall, in addition to all other payments required,
receive from the other all the costs incurred by the prevailing party, including reasonable
attorney fees and such costs and reasonable attorney fees which the prevailing party may
incur on any appeal.
CC. Execution.
CITY OF YAKIMA HOPESOURCE
By: B
Donald B. Cooper, City Manager James Pappas, President
Dated: Dated:
ATTEST:
By: Date:
Deborah K. Kloster, City Clerk
City Contract No.
Resolution No.
LEASED VEHICLE LIST
Veh. ID Year Make Model VIN Lift Equip.
Active TBD 2003 Ford E -450 1FDXE45S83HA90453 Yes
Vehicles TBD 2003 Ford E -450 1FDXE45SX3HA90454 Yes
TBD Bus Yes
TBD Bus Yes
Spare 3256 2001 Ford E -450 SD 1FDFE45S89DA90674 Yes
Vehicles 3257 2001 Ford E -450 SD 1 FDXE45F91 HA88047 Yes
3258 2001 Ford E -450 SD 1 FDXE45F71 HB88048 Yes
22
•
•
0 Exhibit B - ELLENSBURG COMMUTER SERVICE SCHEDULE
•
Exhibit B
Ellensburg- Yakima Commuter Service Schedule
Northbound
Departure Location - Yakima 1 2 3 4 5 6 7 8
•
Perry Techical College /Airport 6:25 AM 7:55 AM 9:25 AM 10:55 AM 12:55 PM 2:25 PM 3:55 PM 5:25 PM
Yakima Valley Community College 6:35 AM 8:05 AM 9:35 AM 11:05 AM 1:05 PM 2:35 PM 4:05 PM 5:35 PM
Yakima Transit Center 6:45 AM 8:15 AM 9:45 AM 11:15 AM 1:15 PM 2:45 PM 4:15 PM 5:45 PM
Yakima Firing Center ( Selah) 7:00 AM 8:30 AM 10:00 AM 11:30 AM 1:30 PM 3:00 PM 4:30 PM 6:00 PM
Ellensbur• southside 7:25 AM 8:55 AM 10:25 AM 11:55 AM 1:55 PM 3:25 PM 4:55 PM 6:25 PM
Central Washington University 7:40 AM 9:10 AM 10:40 AM 12:10 PM 2:10 PM 3:40 PM 5:10 PM 6:40 PM
Southbound
Departure Location - Ellensburg 1 2 3 4 5 6 7 8
Central Washington University 6:15 AM 7:45 AM 9:15 AM 10:45 AM 12:45 PM 2:15 PM 3:45 PM 5:15 PM
Ellensburg (southside) 6:30 AM 8:00 AM 9:30 AM 11:00 AM 1:00 PM 2:30 PM 4:00 PM 5:30 PM
Yakima Firing Center (Selah) 7:00 AM 8:30 AM 10:00 AM 11:30 AM 1:30 PM 3:00 PM 4:30 PM 6:00 PM
Yakima Transit Center 7:15 AM 8:45 AM 10:15 AM .11:45 AM 1:45 PM 3:15 PM 4:45 PM 6:15 PM
Yakima Valley Community College 7:25 AM 8:55 AM 10:25 AM 11:55 AM 1:55 PM 3:25 PM 4:55 PM 6:25 PM
Perry Techical College /Airport 7:30 AM 9:00 AM 10:30 AM 12:00 PM 2:00 PM 3:30 PM 5:00 PM 6:30 PM
•
•
•
•
•
•
•
•
• 23
Exhibit C - CONSOLIDATED GRANT CONTRACT
•
24
Federal /State Operating Grant Agreement
0 Washington State Department of Transportation Contractor:
Public Transportation Division HopeSource
310 Maple Park Avenue SE 700 E. Mountainview Ave, Suite 501
PO Box 47387 Ellensburg, WA 98073
Olympia, WA 98504 -7387
WSDOT Contact: Tom Hanson 509 -667 -3029 Contact Person: Geoff Crump 509- 925 -1448
Term of Project: July 1, 2011 through June 30, 2013 Federal ID #: 91- 0814544
Scope of Project: Scope of Project as set forth in Project Title: Operating funding assistance as
Exhibit I, Scope of Work and Budget. described in Exhibit I, Scope of Work and Budget
CFDA: 20.509 (5311)
Service Area: As defined in attached Exhibit I Project Costs:
Federal Funds $66,000
State Funds $132,000
Agreement Number: UCB1001 Contractor Funds $264,000
Total Project Cost $462,000
THIS AGREEMENT, entered into by the Washington State Department of Transportation, hereinafter "WSDOT,"
and the above Contractor, hereinafter "CONTRACTOR," individually the "PARTY" and collectively the
"PARTIES," WITNESSETH THAT:
WHEREAS, Federal funding is authorized under 49 USC chapter 53; Title 23 USC (Highways); the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA -LU) enacted as Public
Law 109 -59, August 10, 2005; as amended by SAFETEA -LU Technical Corrections Act, 2008, Pub. L. 110 -244,
June 6, 2008; the Transportation Equity Act for the 21st Century (TEA -21) enacted as Public law 105 -178, June 9,
1998, as amended, the. National Capital Transportation Act of 1969, D.C. Official Code, §§ 9- 1111.01 et seq.; or
other Federal laws the Federal Transit Administration (FTA) administers to the extent FTA so determines;
WHEREAS, the State of Washington in its Sessions Laws of 2011, chapter 367, section 220 provides Rural
Mobility, Paratransit/Special Needs, and other special proviso funding through the multi -modal transportation
account and rural mobility grant program account, as identified in the budget through its 2011 -2013 biennial
appropriations to WSDOT;
WHEREAS, funding is authorized under 49 USC § 5311; and any subsequent amendments and resolutions
thereto;
WHEREAS, WSDOT's Public Transportation Division administers the Rural Mobility Grant Program funds to
provide transportation related support of persons in non - urbanized and small urban areas;
NOW, THEREFORE, in consideration of the terms, conditions, performances and mutual covenants herein set
forth and the attached Exhibit I, "Scope of Work and Budget," IT IS MUTUALLY AGREED AS FOLLOWS:
UCB1001 Page 1 of 19
Section 1
Purpose of Agreement
The purpose of this AGREEMENT is for WSDOT to provide operating funds to the CONTRACTOR for public
•
transportation services that meet the needs of persons in the State of Washington, hereinafter referred to as the
"Project."
Section 2
Scope of Project
The CONTRACTOR shall undertake and complete the Project as detailed in Exhibit I, "Scope of Work and
Budget ", which is by this reference fully incorporated herein as if fully set out in this AGREEMENT, and to operate
the service within the area described in the caption space header titled "Service Area," in accordance with the terms
and conditions of this AGREEMENT. The caption space header titled "Service Area" and all caption space headers
are by this reference incorporated herein as if fully set out in this AGREEMENT.
Section 3
Term of Project
The CONTRACTOR shall commence, perform, and complete the Project within the period of time defined in the
caption space header titled "Term of Project" on this AGREEMENT regardless of the date of signature and
execution of this AGREEMENT, unless terminated as provided herein.
Section 4
Contractor's Share of Project Costs
The total Project cost shall not exceed the amounts detailed in the caption space header titled "Project Costs." The
CONTRACTOR agrees to expend eligible funds, together with any "Contractor Funds" allocated for the Project in
an amount sufficient to complete the Project as detailed in Exhibit 1, "Scope of Work and Budget." The
CONTRACTOR further agrees that there shall be no reduction in any amount specified as the Contractor's Funds
unless there is a concurrent proportional reduction in the Federal and/or State Funds, or WSDOT pre- approves the
reduction in writing. If at any time the CONTRACTOR becomes aware that the cost which it expects to incur in the
performance of this AGREEMENT will exceed or be less than the amount identified as "Total Project Cost" in the
caption space header titled "Project Costs," the CONTRACTOR shall notify WSDOT in writing within three (3)
•
business days of making that determination. The CONTRACTOR agrees that "Project Costs" eligible for federal
participation, including State Funds and Contractor Funds used as match to other FTA funds, must comply with the
standards of OMB Circular A -87, Revised, "Cost Principles for State and Local Governments ", or OMB Circular A-
122, Revised, "Cost Principles for Non - Profit Organizations ", or Federal Acquisition Regulation (FAR), 48 CFR
Chapter 1, subpart 31.2, "Contracts with Commercial Organizations," whichever is appropriate.
Section 5
Payment
A. WSDOT, using FTA funds and/or State funds, shall reimburse the CONTRACTOR for allowable expenses
incurred in completing the Project described in Exhibit I, "Scope of Work and Budget." Allowable Project expenses
shall be determined by WSDOT as described in WSDOT's Guide to Managing Your Public Transportation Grant
2011 version, and any amendments thereto, which by this reference is fully incorporated herein. In no event shall
the total amount reimbursed by WSDOT exceed the "Federal Funds" or "State Funds" identified in the caption space
header titled "Project Costs," above.
B. Payment will be made by WSDOT on a reimbursable basis for actual net project costs incurred within the
timeframe in the caption space header titled "Term of Project." Such costs to be reimbursed shall be calculated as
described in WSDOT's Guide to Managing Your Public Transportation Grant, 2011 version, and any amendments
thereto. WSDOT shall make no payments for costs incurred prior to the beginning date or after the ending date
shown. The CONTRACTOR shall submit an invoice detailing and supporting the . costs incurred. Such invoices may
be submitted no more than once a month and no less than once per quarter. If approved by WSDOT, said invoices
shall be paid by WSDOT within thirty (30) days of receipt of the invoice. Payment is subject to the submission to
and approval by WSDOT of appropriate invoices, reports, and financial summaries. Any financial summaries
submitted to WSDOT must include a record of the actual costs.
C. The CONTRACTOR shall submit an invoice by July 15, 2012, for any unreimbursed eligible expenditures
incurred between July 1, 2011, and June 30, 2012. If the CONTRACTOR is unable to provide an invoice by this
date, the CONTRACTOR shall provide an estimate of the charges to be billed so WSDOT may accrue the
expenditures in the proper fiscal period. Any subsequent reimbursement request submitted will be limited to the
amount accrued as set forth in this section. The CONTRACTOR's final payment request must be received by
WSDOT by July 15, 2013, within thirty (30) days of the completion of the Project, or within thirty (30) days of the
UCB1001 Page 2 of 19
• termination of this AGREEMENT, whichever is sooner. Any payment request received after July 15, 2013 will not
•
be eligible for reimbursement.
Section 6
Assignments and Subcontracts
A. Unless otherwise authorized in advance and in writing by WSDOT, the CONTRACTOR will not assign any
portion of the Project or execute any contract, amendment, or change order thereto, or obligate itself in any manner
with any third party with respect to its rights and responsibilities under this AGREEMENT.
B. The CONTRACTOR agrees to include sections 8 through 26 and Section 34 of this AGREEMENT in each
subcontract financed in whole or in part with federal assistance provided by FTA; and in all contracts it enters into
for the employment of any individuals, procurement of any materials, or the performance of any work to be
accomplished under this AGREEMENT, subject to the limitations set forth in Sections 19.E.3 of this
AGREEMENT. It is further agreed that those clauses shall not be modified in any such subcontract, except to
identify the subcontractor or other person or entity that will be subject to its provisions. In addition, the following
provision shall be included in any advertisement or invitation to bid for any procurement by the CONTRACTOR
under this AGREEMENT:
Statement of Financial Assistance:
"This AGREEMENT is subject to a financial assistance contract between the Washington State Department of
Transportation and the Federal Transit Administration and the appropriations of the State of Washington."
Section 7
Reports
A. The CONTRACTOR shall prepare quarterly reports regarding services provided pursuant to this
AGREEMENT and other related information as prescribed in WSDOT's Guide to Managing Your Transportation
Grant, 2011 version, and any amendments thereto, or as requested by WSDOT. Due to Legislative and Department
reporting requirements, quarterly progress reports shall be submitted for the duration of the AGREEMENT period
regardless of whether the underlying funding sources have been exhausted. Post -grant annual performance reporting
may also be required as prescribed in the aforementioned guidebook. These reports may include, but are not limited
® to:
1. Passenger Trips provided
2. Project Revenue Hours provided
3. Project Revenue Miles provided
4. Narrative Progress Report
5. Financial status of the project
6. Drug Abuse and Alcohol Abuse Testing compliance reports as required in this AGREEMENT
7. Goods and services purchased from Disadvantaged Business Enterprises (DBE's)
B. Program Income. The CONTRACTOR shall comply with Program Income provisions in 49 CFR § 18.25 or 49
CFR § 19.24, whichever is applicable, and prepare a quarterly report of the gross income, as defined in WSDOT's
Guide to Managing Your Public Transportation Grant, 2011 version, and any amendments thereto received by
CONTRACTOR that is directly generated by the Project activity supported by the funding in this AGREEMENT.
Section 8
General Compliance Assurance
The CONTRACTOR agrees to give reasonable guarantees that it and its subcontractors, lessees and any third -party
contractors under this AGREEMENT, will comply with all requirements imposed by, or pursuant to, 49 USC
chapter 53 and other applicable Federal regulations. The CONTRACTOR agrees to comply with the provisions of
49 CFR Part 18 or 49 CFR Part 19 or FAR, 48 CFR Chapter 1, subpart 31 whichever is applicable, and cost
principles as defined in OMB circulars A -87 and A -122. The CONTRACTOR agrees to comply with all
instructions as prescribed in WSDOT's Guide to Managing Your Public Transportation Grant, 2011 version, and
any amendments thereto. The CONTRACTOR agrees that the United States, any agency thereof, WSDOT and any
of WSDOT's representatives, have not only the right to monitor the compliance of the CONTRACTOR with the
provisions of this Assurance, but also have the right to seek judicial enforcement with regard to any matter arising
under. Federal transit laws and regulations, and this Assurance.
• Section 9
Procurement
The CONTRACTOR shall make purchases of any incidental goods or supplies essential to this AGREEMENT
through procurement procedures approved in advance by WSDOT and consistent with the following provisions:
UCB 1001
Page 3 of 19
A. General Procurement Requirements. The CONTRACTOR shall comply with third -party procurement
requirements of 49 USC chapter 53 and other applicable Federal laws in effect now or as subsequently enacted; with
the United States Department of Transportation (U.S. DOT) third -party procurement regulations of 49 CFR § 18.36
or 49 CFR § 19.40 through 19.48 and other applicable Federal regulations pertaining to third -party procurements
and subsequent amendments thereto. The CONTRACTOR shall also comply with the provisions of FTA Circular
4220.1F, "Third Party Contracting Guidance," November 1, 2008, and any later revision thereto, except to the extent
FTA determines otherwise in writing, which by this reference are incorporated herein; and any reference therein to
"Grantee" shall mean CONTRACTOR.
B. Full and Open Competition. In accordance with 49 USC § 5325(a), the CONTRACTOR agrees to conduct all
procurement transactions in a manner that provides full and open competition as determined by FTA.
C. Preference for United States Products and Services. To the extent applicable, the CONTRACTOR agrees to
comply with the following U.S. preference requirements:
1. Buy America. The CONTRACTOR agrees to comply with 49 USC § 5323(j), with FTA regulations, "Buy
America Requirements," 49 CFR Part 661, and any later amendments thereto.
2. Cargo Preference —Use of United States -Flag Vessels. The CONTRACTOR agrees to comply with 46
USC § 55305 and U.S. Maritime Administration regulations, "Cargo Preference — U.S. -Flag Vessels," 46 CFR Part
381, to the extent those regulations apply to the Project.
3. Fly America. The CONTRACTOR understands and agrees that the Federal Government will not
participate in the costs of international air transportation of any persons involved in or property acquired for the
Project unless that air transportation is provided by U.S. -flag air careers to the extent service by U.S. -flag air carriers
is available, in accordance with the International Air Transportation Fair Competitive Practices Act of 1974, as
amended, 49 USC § 40118, and with U.S. GSA regulations, "Use of United States Flag Air Carriers," 41 CFR §§
301 - 10.131 through 301 - 10.143.
D. Preference for Recycled Products. To the extent applicable, The CONTRACTOR agrees to comply with
U.S. Environmental Protection Agency (U.S. EPA), "Comprehensive Procurement Guideline for Products
Containing Recovered Materials ", 40 CFR Part 247, which implements section 6002 of the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976 as amended, 42 USC § 6962.
Accordingly, the CONTRACTOR agrees to provide a competitive preference for products and services that
conserve natural resources, protect the environment, and are energy efficient, except to the extent that the Federal
Government determines otherwise in writing.
E. Geographic Restrictions. The CONTRACTOR agrees to not use any state or local geographic preference,
except those expressly mandated or encouraged by federal statute or as permitted by FTA.
F. Government Orders. In case any lawful government authority shall make any order with respect to the Project
or Project Equipment, or any part thereof, or the PARTIES hereto or either PARTY, the CONTRACTOR shall
cooperate with WSDOT in carrying out such order and will arrange its operation and business so as to enable
WSDOT to comply with the terms of the order.
Section 10
Charter Service Operations
The CONTRACTOR agrees that neither it nor any public transportation operator performing work in connection
with a Project financed under 49 USC chapter 53 or under 23 USC §§ 133 or 142, will engage in charter service
operations, except as authorized by 49 USC § 5323(d) and FTA regulations, "Charter Service," 49 CFR Part 604,
and any Charter Service regulations or FTA directives that may be issued, except to the extent that FTA determines
otherwise in writing. The Charter Service Agreement the CONTRACTOR has selected in its latest annual
Certifications and Assurances is incorporated by reference and made part of the Grant Agreement or Cooperative
Agreement for the Project. If the CONTRACTOR has failed to select the Charter Service Agreement in its latest
annual Certifications and Assurances to FTA and does conduct charter service operations prohibited by FTA's
Charter Service regulations, the CONTRACTOR understands and agrees that: (1) the requirements of FTA's Charter
Service regulations and any amendments thereto will apply to any charter service it or its subrecipients, lessees,
third -party contractors, or other participants in the Project provide; (2) the definitions of FTA's Charter Service
regulations will apply to the CONTRACTOR's charter operations, and (3) a pattern of violations of FTA's Charter
Service regulations may require corrective measures and imposition of remedies, including barring the
CONTRACTOR, subrecipient, lessee, third -party contractor, or other .participant in the Project operating public
transportation under the Project from receiving Federal financial assistance from FTA, or withholding an amount of
Federal assistance as set forth in Appendix D to FTA's Charter Service regulations.
UCB1001 Page 4 of 19
Section 11
School Bus Operations
The CONTRACTOR agrees that neither it nor any public transportation operator performing work in connection
with a Project fmanced under 49 USC chapter 53 or under 23 USC §§ 133 or 142, will engage in school
transportation operations for the transportation of students or school personnel exclusively in competition with
private school transportation operators, except as authorized by 49 USC §§ 5323(0 or (g), as applicable, and FTA
regulations, "School Bus Operations," 49 CFR Part 605 to the extent consistent with 49 USC §§ 5323(0 or (g), in
accordance with any School Transportation Operations regulations or FTA directives that may be issued at a later
date, except to the extent that FTA determines otherwise in writing. The School Transportation Operations
Agreement the CONTRACTOR has selected in its latest annual Certifications and Assurances is incorporated by
reference and made part of the Grant Agreement or Cooperative Agreement for the Project. If the CONTRACTOR
has failed to select the School Transportation Agreement in its latest annual Certifications and Assurances to FTA
and does conduct school transportation operations prohibited by FTA's School Bus Operations regulations, 49 CFR
Part 605, to the extent those regulations are consistent with 49 USC §§ 5323(0 or (g), the CONTRACTOR
understands and agrees that: (1) the requirements of FTA's School Bus Operations regulations, 49 CFR Part 605, to
the extent consistent with 49 USC §§ 5323(0 or (g), will apply to any school transportation service it or its
subrecipients, lessees, third -party contractors, or other participants in the project provide, (2) the definitions of
FTA's School Bus Operations regulations will apply to the CONTRACTOR's school transportation operations, and
(3) if there is a violation of FTA's School Bus Operations regulations to the extent consistent with 49 USC §§
5323(0 or (g), FTA will bar the CONTRACTOR, subrecipient, lessee, third -party contractor, or other Project
participant operating public transportation that has violated FTA's School Bus Operations regulations, 49 CFR Part
605, to the extent consistent with 49 USC §§ 5323(0 or. (g), from receiving Federal transit assistance in an amount
FTA considers appropriate.
Section 12
Incorporation of Federal Terms
A. Purchasing, This AGREEMENT's provisions include, in part, certain Standard Terms and Conditions required
by FTA, whether or not expressly set forth herein. All contractual provisions required by FTA, as set forth in FTA
Circular 4220.IF, 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 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 WSDOT request, which would cause WSDOT to be in violation of any FTA term or condition.
B. Federal Changes. The CONTRACTOR shall at all times comply with all applicable FTA regulations, policies,
procedures and directives, whether or not they are referenced in this AGREEMENT and include any amendments
promulgated by the FTA, during the term of this AGREEMENT. The CONTRACTOR's failure to so comply shall
constitute a material breach of this AGREEMENT.
Section 13
No Obligation by the Federal Government
A. WSDOT and the CONTRACTOR acknowledge and agree that regardless of any concurrence or approval by the
Federal Government of the solicitation or award of this AGREEMENT, the Federal Government is not a party to
this AGREEMENT unless it provides its express written consent. The Federal Government shall not be subject to
any obligations or liabilities to the CONTRACTOR, subcontractor, lessee, or any other participant at any tier of the
project (whether or not a PARTY to. this AGREEMENT) pertaining to any matter resulting from this
AGREEMENT.
B. No contract between the CONTRACTOR and its subcontractors, lessees, or any other participant at any tier of
the project shall create any obligation or Liability of WSDOT with regard to this AGREEMENT without WSDOT's
specific written consent, notwithstanding its concurrence in, or approval of, the award of any contract or subcontract
or the solicitations thereof. The CONTRACTOR hereby agrees to include this provision in all contracts it enters into
for the employment of any individuals, procurement of any materials, or the performance of any work to be
accomplished under this AGREEMENT.
Section 14
® Personal Liability of Public Officers
No officer or employee of WSDOT shall be personally liable for any acts or failure to act in connection with this
AGREEMENT, it being understood that in such matters they are acting solely as agents of WSDOT.
UCB1001 Page 5 of 19
Section 15
Ethics
110
A. Code of Ethics. The CONTRACTOR agrees to maintain a written code or standards of conduct that shall
govern the performance of its officers, employees, board members, or agents engaged in the award and
administration of contracts, subagreements, leases, third -party contracts, or other arrangements supported by federal
assistance. The code or standards shall provide that the CONTRACTOR's officers, employees, board members, or
agents may neither solicit nor accept gratuities, favors, or anything of monetary value from any present or potential
subcontractor, lessee, sub- recipient, or participant at any tier of the Project, or agent thereof. The CONTRACTOR
may set de minimis rules where the financial interest is not substantial, or the gift is an unsolicited item of nominal
intrinsic value. These codes or standards shall prohibit the CONTRACTOR's officers, employees, board members,
or agents from using their positions for a purpose that constitutes or presents the appearance of personal or
organizational conflict of interest or personal gain. - As permitted by state or local law or regulations, such code or
standards shall include penalties, sanctions, or other disciplinary actions for violations by the CONTRACTOR's
officers, employees, board members, or agents, or by subcontractors, lessees, sub - recipients, other participants, or
their agents. The CONTRACTOR must fully comply with all the requirements and obligations of chapter 42.52
RCW that govern ethics in state and local governments.
1. Personal Conflict of Interest. The CONTRACTOR's code or standards shall prohibit the
CONTRACTOR's employees, officers, board members, or agents from participating in the selection, award, or
administration of a contract supported by Federal Funds if a real or apparent conflict of interest would be involved.
Such a conflict would arise when any of the PARTIES set forth below has a financial or other interest in the firm or
entity selected for award:
a. The employee, officer, board member, or agent;
b. Any member of his or her immediate family;
c. His or her partner; or
d. An organization that employs, or is about to employ, any of the above.
2. Organizational Conflict of Interest. The CONTRACTOR's code or standard of conduct must include
procedures for identifying and preventing real and apparent organizational conflicts of interest. An organizational
conflict of interest exists when the nature of the work to be performed under a proposed third -party contract,
subagreement, lease, or other arrangement at any tier may, without some restrictions on future activities, result in an
unfair competitive advantage to the subrecipient, lessee, third -party contractor, or other participant ant any tier of the
Project or impair its objectivity in performing the work under this AGREEMENT.
B. Debarment and Suspension. The CONTRACTOR agrees to comply, and assures the compliance of each sub -
recipient, lessee, third -party contractor, or other participant at any tier of the project, with the requirements of
Executive Orders Numbers 12549 and 12689, "Debarment and Suspension, "31 USC § 6101 note, and U.S. DOT
regulations, "Non- procurement Suspension and Debarment" 2 CFR Part 1200, which adopts and supplements the
provisions of U,S. Office of Management and Budget (U.S. OMB) "Guidelines to Agencies on Governmentwide
Debarment and Suspension (Non- procurement)," 2 CFR Part 180. The CONTRACTOR agrees to, and assures that
its subrecipients, lessees, third -party contractors, and other participants at any tier of the Project will, review the
"Excluded Parties Listing System" at http: / /epls.gov/ before entering into any third subagreement, lease, third -party
contract, or other arrangement in connection with the Project, and will include a similar term or condition in each of
its lower -tier covered transactions.
C. Bonus or Commission. The CONTRACTOR affirms that it has not paid, and agrees not to pay, any bonus or
commission to obtain approval of its application for federal fmancial assistance for this Project.
D. Relationships with Employees and Officers of WSDOT. The CONTRACTOR shall not extend any loan,
gratuity or gift of money in any form whatsoever to any employee or officer of WSDOT, nor shall the
CONTRACTOR rent or purchase any equipment and materials from any employee or officer of WSDOT.
E. Employment of Former WSDOT Employees. The CONTRACTOR hereby warrants that it shall not engage
on a full -time, part-time, or other basis during the period of this AGREEMENT, any professional or technical
personnel who are, or have been, at any time during the period of this AGREEMENT, in the employ of WSDOT
without written consent of WSDOT.
F. Restrictions on Lobbying. The CONTRACTOR agrees to:
UCB1001 Page 6 of 19
1. Comply with 31 USC § 1352(a) and will not use Federal assistance to pay the costs of influencing any
1110 officer or employee of a Federal agency, Member of Congress, officer of Congress or employee of a member of
Congress, in connection with making or extending the Grant AGREEMENT or Cooperative Agreement; and
2. Comply, and assure compliance by each subcontractor at any tier, each lessee at any tier and each sub -
recipient at any tier, with applicable requirements of U.S. DOT regulations, "New Restriction on Lobbying," 49
CFR Part 20, modified as necessary by 31 USC § 1352; and
3. Comply with federal statutory provisions to the extent applicable prohibiting the use of Federal assistance
Funds for activities designed to influence Congress or a state Legislature on legislation or appropriations, except
through proper, official channels.
G. -Employee Political Activity. To the extent applicable, the CONTRACTOR agrees to comply with the
provisions of the Hatch Act, 5 USC §§ 1501 through 1508, and §§ 7324through 7326, and Office of Personnel
Management regulations, "Political Activity of State or Local Officers or Employees," 5 CFR Part 151. The Hatch
Act limits the political activities of state and local agencies and their officers and employees, whose principal
employment activities are financed in whole or in part with Federal Funds including a loan, grant, or cooperative
agreement. Nevertheless, in accordance with 49 USC § 5307 (k)(2)(B) and 23 USC § 142(g), the Hatch Act does not
apply to a non - supervisory employee of a public transportation system (or of any other agency or entity performing
related functions) receiving assistance pursuant to the SAFETEA -LU provisions and/or receiving FTA assistance to
whom the Hatch Act does not otherwise apply.
H. False or Fraudulent Statements or Claims. The CONTRACTOR acknowledges and agrees that:
1. Civil Fraud: The Program Fraud Civil Remedies Act of 1986, as amended, 31 USC §§ 3801 et seq., and
U.S. DOT regulations, "Program Fraud Civil Remedies," 49 CFR Part 31, apply to its activities in connection with
the Project. Accordingly, by executing this AGREEMENT, the CONTRACTOR certifies or affirms the truthfulness
and accuracy of each statement it has made, it makes, or it may make in connection with the Project covered by this
AGREEMENT. In addition to other penalties that may apply, the CONTRACTOR also acknowledges that if it
makes a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government, the
Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986, as
41) amended, on the CONTRACTOR to the extent the Federal Government deems appropriate.
2. Criminal Fraud: If the CONTRACTOR makes a false, fictitious, or fraudulent claim, statement,
submission, certification, assurance, or representation to the Federal Government or includes a false, fictitious, or
fraudulent statement or representation in any agreement in connection with this Project authorized under 49 USC
Chapter 53 or any other federal law, the Federal Government reserves the right to impose on the CONTRACTOR
the penalties of 49 USC §5323(1), 18 USC § 1001 or other applicable Federal law to the extent the Federal
Government deems appropriate.
I. - Trafficking in Persons. To the extent applicable, the CONTRACTOR agrees to comply with, and assures the
compliance of each subrecipient with, the requirements of the subsection 106(g) of the Trafficking Victims
Protection Act of 2000 (TVPA), as amended, 22 USC § 7104(g), and the provisions of this Subsection 3.g of FTA
Master Agreement (17) dated October 1, 2010, which by this reference is incorporated herein as if fully set out in
this AGREEMENT, and any amendments thereto, which is accessible at
http: / /www.fta.dot.gov /documents /TEAM Master Agreement 2011 17- Master.pdf consistent with U.S. OMB
guidance, "Trafficking in Persons: Grants and Cooperative Agreements," 2 CFR Part 175.
Section 16
Compliance with Laws and Regulations
The CONTRACTOR agrees to abide by all applicable state and federal laws and regulations including but not
limited to, those concerning employment, equal opportunity employment, nondiscrimination assurances, Project
record keeping necessary to evidence compliance, with such federal and state laws and regulations, and retention of
all such records. The CONTRACTOR will adhere to all of the nondiscrimination provisions in chapter 49.60 RCW.
Section 17
Civil Rights
The CONTRACTOR shall comply with all applicable civil rights laws, regulations and directives, except to the
• extent that the Federal Government determines otherwise in writing. These include, but are not limited to, the
following:
A. Nondiscrimination in Federal Transit Programs. The CONTRACTOR agrees to comply, and assures
compliance by each third -party contractor, lessee or other participant at any tier, with the provisions of 49 USC §
UCB1001 Page 7 of 19
•
5332, which prohibits discrimination on the basis of race, color, creed, national origin, sex, or age, and prohibits
discrimination in employment or business opportunity;
B. Nondiscrimination -Title VI of the Civil Rights Act. The CONTRACTOR agrees to comply, and assure •
compliance by each third -party contractor at any tier, with all provisions prohibiting discrimination on the basis of
race, color, or national origin of Title VI of the Civil Rights Act of 1964, as amended, 42 USC §§ 2000d et seq.; and
U.S. DOT regulations, "Nondiscrimination in Federally- Assisted Programs of the Department of Transportation- -
Effectuation of Title VI of the Civil Rights Act ", 49 CFR Part 21. Except to the extent FTA determines otherwise in
writing, the CONTRACTOR also agrees to follow all applicable provisions of the most recent edition of FTA
Circular 4702.1A, "Title VI and Title VI- Dependent Guidelines for Federal Transit Assistance Recipients," and any
other applicable Federal directives that may be issued;
C. Equal Employment Opportunity. The CONTRACTOR agrees to comply, and assures compliance by each
third -party contractor, lessee or other participant at any tier of the Project, with all equal employment opportunity
(EEO) provisions of 49 USC §5332, with requirements of Title VII of the Civil Rights Act of 1964, as amended, 42
USC § 2000e et seq., and any implementing Federal regulations and any subsequent amendments thereto. Except to
the extent FTA determines otherwise in writing, the CONTRACTOR also agrees to comply with any applicable
Federal EEO directives that may be issued. Accordingly:
1. The CONTRACTOR agrees that it will not discriminate against any employee or applicant for employment
because of race, color, creed, sex, disability, age, or national origin. 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, sex, disability, age, or national origin. Such action shall include, but not be limited to,
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. The CONTRACTOR shall
also comply with any implementing requirements FTA may issue.
2. If the CONTRACTOR is required to submit and obtain Federal Government approval of its EEO program,
that EEO program approved by the Federal Government is incorporated by reference and made part of this
AGREEMENT. Failure by the CONTRACTOR to carry out the terms of that EEO program shall be treated as a
violation of this AGREEMENT. Upon notification to the CONTRACTOR of its failure to carry out the approved
•
EEO program, the Federal Government may impose such remedies, as it considers appropriate, including
termination of federal financial assistance, or other measures that may affect the CONTRACTOR's eligibility to
obtain future federal financial assistance for transportation projects.
D. Nondiscrimination on the Basis of Sex. The CONTRACTOR agrees to comply with all applicable
requirements of Title IX of the Education Amendments of 1972, as amended, 20 USC §§ 1681 et seq. and with any
implementing Federal regulations that prohibit discrimination on the basis of sex that may be applicable.
E. Nondiscrimination on the basis of Age. The CONTRACTOR agrees to comply with applicable requirements
of:
1. The Age Discrimination Act of 1975, as amended, 42 USC §§ 6101 et seq., and with implementing U.S.
Health and Human Services regulations, "Nondiscrimination on the Basis of Age in Programs and Activities
Receiving Federal Financial Assistance ", 45 CFR Part 90, which prohibits discrimination on the basis of age.
2. The Age Discrimination in Employment Act (ADEA) 29 USC §§ 621 through 634 and with implementing
U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, "Age Discrimination in Employment
Act" 29 CFR Part 1625.
F. Disabilities- Employment. In accordance with section 102 of the Americans with Disabilities Act, as amended,
42 USC § 12112, the CONTRACTOR agrees that it will comply with the requirements of U.S. Equal Employment
Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with
Disabilities Act," 29 CFR Part 1630, pertaining to employment of persons with disabilities. In addition, the
CONTRACTOR agrees to comply with any implementing requirements FTA may issue.
G. Disabilities- Access. The CONTRACTOR agrees to comply with the requirements of 49 USC § 5301(d) which
state the Federal policy that the elderly and persons with disabilities have the same rights as other persons to use
mass transportation service and facilities, and that special efforts shall be made in planning and designing those
services and facilities to implement said policy. The CONTRACTOR also agrees to comply with all applicable
requirements of section 504 of the Rehabilitation Act of 1973, as amended, 29 USC § 794, which prohibit 411
discrimination on the basis of handicap; with the Americans with Disabilities Act of 1990 (ADA), as amended, 42
USC §§ 12101 et seq., which requires the provision of accessible facilities and services to be made available to
persons with disabilities; and the Architectural Barriers Act of 1968, as amended, 42 USC §§ 4151 et seq, which
UCB1001 Page 8 of 19
requires that buildings and public accommodations be accessible to persons with disabilities and with other laws and
410 amendments thereto pertaining to access for individuals with disabilities that may be applicable. In addition, the
Recipient agrees to comply with applicable implementing Federal regulations and any later amendments thereto, and
agrees to follow applicable Federal directives except to the extent FTA approves otherwise in writing. Among those
regulations and directives are .the following: U.S. DOT regulations, "Transportation Services for Individuals with
Disabilities (ADA)," 49 CFR Part 37; U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in
Programs and Activities Receiving or Benefiting from Federal Financial Assistance," 49 CFR Part 27; Joint U.S.
Architectural and Transportation Barriers Compliance Board U.S. DOT regulations; "Americans with Disabilities
(ADA) Accessibility Specifications for Transportation Vehicles," 36 CFR Part 1192 and 49 CFR Part 38; U.S. DOJ
regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 CFR Part
35; U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in
Commercial Facilities," 28 CFR Part 36; U.S. GSA regulations, "Accommodations for the Physically
Handicapped," 41 CFR Subpart 101 -19; U.S. Equal Employment Opportunity Commission, "Regulations to
Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630; U.S.
Federal Communications Commission regulations, "Telecommunications Relay Services and Related Custom
Premises Equipment for the Hearing and Speech Disabled," 47 CFR Part 64, Subpart F; U.S. Architectural and
Transportation Barriers Compliance Board (ATBCB) regulations, "Electronic and Information Technology
Accessibility Standards" 36 CFR Part 1194; FTA regulations, "Transportation for Elderly and Handicapped
Persons," 49 CFR Part 609; and Federal civil rights and nondiscrimination directives implementing the foregoing
regulations, except to the extent the Federal Government determines otherwise in writing.
G. Drug or Alcohol Abuse. Confidentiality and Other Civil Rights Protections. The CONTRACTOR agrees
to comply with the confidentiality and other civil rights provisions of the Drug Abuse Office and Treatment Act of
1972, as amended 21 USC §§ 1101 et seq.; with the Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970, as amended; 42 USC §§ 4541 et seq.; and comply with the Public Health
Service Act of 1912, as amended, 42 USC §§ 290dd through 290dd -2, and any amendments to these laws. The
CONTRACTOR understands the requirements of confidentiality concerning persons covered and/or receiving
® services and/or treatment regarding alcohol and drug abuse, as defined in the aforementioned acts as applicable,
including any civil and criminal penalties for not complying with the requirements of confidentiality and that failure
to comply with such requirements may result in termination of this AGREEMENT.
H. Access to Services for Persons with Limited English Proficiency. The CONTRACTOR agrees to comply
with the policies of Executive Order No. 13166, "Improving Access to Services for Persons with Limited English
Proficiency," 42 USC § 2000d -1 note, and with provisions of U.S. DOT Notice "DOT Policy Guidance Concerning
Recipients' Responsibilities to Limited English Proficiency (LEP) Persons," 70 Fed. Reg. 74087, December 14,
2005.
I. Environmental Justice. The CONTRACTOR agrees to comply with the policies of Executive Order No.
12898, "Federal Actions to Address Environmental Justice in Minority populations and Low- Income Populations ",
42 USC § 4321 note; and DOT Order 5620.3, "Department of Transportation Actions to address Environmental
Justice in Minority Populations and Low Income Populations," 62 Fed. Reg. 18377 et seq., April 15, 1997, except to
the extent that the Federal Government determines otherwise in writing.
J. Other Nondiscrimination Statutes. The CONTRACTOR agrees to comply with all applicable provisions of
other Federal laws, regulations, and directives pertaining to and prohibiting discrimination and other
nondiscrimination statute(s) that may apply to the Project including chapter 49.60 RCW.
Section 18
Participation of Disadvantaged Business Enterprises
To the extent applicable, the CONTRACTOR shall take the following measures to facilitate participation by
disadvantaged business enterprises (DBE) in the Project:
A. The CONTRACTOR agrees to comply with section 1101(b) of SAFETEA -LU, 23 USC §101 note, and U.S.
DOT regulations, "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial
Assistance Programs," 49 CFR Part 26; and
S B. The CONTRACTOR agrees that it shall not discriminate on the basis of race, color, national origin, or sex in
the award and performance of any third -party contract, or sub - agreement supported with federal assistance derived
from the U.S. DOT or in the administration of its DBE program or the requirements of 49 CFR Part 26. The
CONTRACTOR agrees to take all necessary and reasonable steps under 49 CFR Part 26 to ensure
nondiscrimination in the award and administration of all third -party contracts and sub - agreements supported with
UCB1001 Page 9 of 19
federal assistance derived from the U.S. DOT. The CONTRACTOR's DBE program, as required by 49 CFR Part
26 and approved by the U.S. DOT, is incorporated by reference and made part of this AGREEMENT.
411
Implementation of the DBE program is a legal obligation, and failure to carry out its terms shall be treated as
violation of this AGREEMENT. Upon notification to the CONTRACTOR of its failure to implement its approved
DBE program, the U.S. DOT may impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate
cases, refer the matter for enforcement under 18 USC § 1001, and/or the Program Fraud Civil Remedies Act, 31
USC §§ 3801 et seq.
Section 19
Energy Conservation and Environmental Requirements
A. Energy Conservation. The CONTRACTOR shall comply with the mandatory standards and policies relating
to energy efficiency standards and policies within the Washington State energy conservation plan issued in
compliance with the Energy Policy and Conservation Act, 42 USC §§ 6321 et seq., and any amendments thereto.
B. Environmental Protection. The CONTRACTOR agrees to comply with all applicable requirements of the
National Environmental Policy Act of 1969, as amended (NEPA), 42 USC §§ 4321 through 4335; Executive Order
No. 11514, as amended, "Protection and Enhancement of Environmental Quality," 42 USC § 4321 note; FTA
statutory requirements at 49 USC § 5324(b); U.S. Council on Environmental Quality regulations imposing
requirements for compliance with the National Environmental Policy Act of 1969, as amended, 40 CFR Part 1500
through 1508; joint Federal Highway Administration (FHWA) /FTA regulations, "Environmental Impact and
Related Procedures," 23 CFR Part 771 and 49 CFR Part 622, and subsequent Federal environmental protection
regulations that may be promulgated. The CONTRACTOR agrees to comply with 23 USC §§ 139 and 326 as
applicable, and implement those requirements in accordance with the provisions of joint FHWA/FTA final
guidance, "SAFETEA -LU Environmental Review Process (Public Law 109 -59)," 71 Fed. Reg. 66576 et seq.,
November 15, 2006, and any applicable Federal directives that may be issued at a later date, except to the extent that
FTA determines otherwise in writing.
C. Clean Water. The recipient agrees to comply with all applicable Federal laws and regulations and follow
Federal directives implementing the Clean Water Act, as amended, 33 USC §§ 1251 through 1377, 42 USC §§ 300f
through 300j -6, and 42 USC § 7606 , including any revisions thereto. In the event that the Federal Funds identified •
in the caption space header of this AGREEMENT entitled "Project Cost ", exceed $100,000, the CONTRACTOR
agrees to comply with all applicable standards, orders, or regulations issued pursuant to Section 508 of the Clean
Water Act, as amended, 33 USC § 1368, and other applicable requirements of the Clean Water Act.
D. Clean Air. The recipient agrees to comply with all applicable Federal laws and regulations and follow Federal
directives implementing the Clean Air Act, as amended, 42 USC §§ 7401 through 7671q and 40 CFR parts 85, 86,
93 and 600, and any revisions thereto. In the event that the federal share, identified in "Project Cost" of this
AGREEMENT exceeds $100,000, the CONTRACTOR shall comply with all applicable standards, orders or
regulations issued pursuant to Section 306 of the Clean Air Act, as amended, 42 USC § 7606, and other applicable
provisions of the Clean Air Act .
E. Violating Facilities. The CONTRACTOR agrees to:
1. Refrain from using any violating facilities,.
2. Report each violation to WSDOT and understands and agrees that WSDOT will, in turn, report each
violation to the FTA and to the appropriate EPA Regional Office.
3. Include these requirements in each subcontract exceeding $100,000 financed in whole or in part with federal
assistance provided by FTA.
Section 20
Accounting Records
A. Project Accounts. The CONTRACTOR agrees to establish and maintain for the Project either a separate set of
accounts or separate accounts within the framework of an established accounting system that can be identified with
the Project, in accordance with applicable federal regulations and other requirements that FTA may impose. The
CONTRACTOR agrees that all checks, payrolls, invoices, contracts, vouchers, orders, or other accounting
documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible, and available to
WSDOT and FTA upon request, and, to the extent feasible, kept separate from documents not pertaining to the
Project.
B. Funds Received or Made Available for the Project. The CONTRACTOR agrees to deposit in a financial
institution, all Project payments it receives from the Federal Government and record in the Project Account all
amounts provided by the Federal Government in support of this Grant AGREEMENT or Cooperative
AGREEMENT and all other funds provided for, accruing to, or otherwise received on account of the Project
UCB 1001 Page 10 of 19
(Project funds) in accordance with applicable Federal regulations and other requirements FTA may impose. Use of
financial institutions owned at least 50 percent by minority group members is encouraged.
411
C. Documentation of Project Costs. The CONTRACTOR agrees to support all allowable costs charged to the
Project, including any approved services contributed by the CONTRACTOR or others, with properly executed
payrolls, time records, invoices, contracts, or vouchers describing in detail the nature and propriety of the charges.
D. Checks, Orders, and Vouchers. The CONTRACTOR agrees to refrain from drawing checks, drafts, or orders
for goods or services to be charged against the Project Account until it has received and filed a properly signed
voucher describing in proper detail the purpose for the expenditure.
Section 21
Audits, Inspection, and Retention of Records
A. Submission of Proceedings, Contracts, Agreements, and Other Documents. During the course of the
Project and for six (6) years thereafter, the CONTRACTOR agrees to retain intact and to provide any data,
documents, reports, records, contracts, and supporting materials relating to the Project as WSDOT may require.
Reporting and record - keeping requirements are set forth in 49 CFR Part 18 or 19, whichever is applicable. Project
closeout does not alter these recording and record - keeping requirements. Should an audit, enforcement, or litigation
process be commenced, but not completed, during the aforementioned six -year period then the CONTRACTOR's
obligations hereunder shall be extended until the conclusion of that pending audit, enforcement, or litigation process.
B. General Audit Requirements. The CONTRACTOR agrees to perform the financial and compliance audits
required by the Single Audit Act Amendments of 1996, 31 USC §§ 7501 et seq. As provided by 49 CFR § 18.26 or
19126, whichever is applicable, these audits must comply with OMB Circular A -133, Revised, "Audits of States,
Local Governments, and Non - Profit Organizations," and the latest applicable OMB A -133 Compliance Supplement
provisions for the U.S. DOT, and any further revision or supplement thereto. The CONTRACTOR agrees that
audits will be carried out in accordance with U.S. General Accounting Office "Government Auditing Standards ".
The CONTRACTOR agrees to obtain any other audits required by the Federal Government or WSDOT. Project
closeout will not alter the CONTRACTOR's audit responsibilities.
C. Inspection. The CONTRACTOR agrees to permit WSDOT, the State Auditor, the United States Department of
Transportation, and the Comptroller General of the United States, or their authorized representatives, to inspect all
Project work materials, payrolls, and other data and records, and to audit the books, records, and accounts of the
CONTRACTOR and its subcontractors pertaining to the Project. The CONTRACTOR agrees to require each third -
party contractor whose contract award is not based on competitive bidding procedures as defined by the United
States Department of Transportation to permit WSDOT, the State Auditor, the United States Depaitnient of
Transportation, and the Comptroller General of the United States, or their duly authorized representatives, to inspect
all work, materials, payrolls, and other data and records involving that third -party contract, and to audit the books,
records, and accounts involving that third -party contract as it affects the Project as required by 49 USC § 5325(g).
Section 22
Labor Provisions
A. Contract Work Hours and Safety Standards Act. The CONTRACTOR shall comply with, and shall require
the compliance by each subcontractor at any tier, any applicable employee protection requirements for non -
construction employees as defined by the Contract Work Hours and Safety Standards Act, as amended, 40 USC §
3701 et seq., and specifically, the wage and hour requirements of section 102 of that Act at 40 USC § 3702 and
USDOL regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and
Assisted Construction (also Labor Standards Provisions Applicable to Non - construction Contracts Subject to the
Contract Work Hours and Safety Standards Act)" at 29 CFR. Part 5; and the safety requirements of section 107 of
that Act at 40 USC § 3704, and implementing U.S. DOL regulations, "Safety and Health Regulations for
Construction," 29 CFR Part 1926.
B. Fair Labor Standards Act. The CONTRACTOR agrees that the minimum wage and overtime provisions of
the Fair Labor Standards Act, as amended, 29 USC §§ 201 et seq., apply to employees performing work involving
commerce, and apply to any local government employees that are public transit authority employees. The
CONTRACTOR shall comply with the Fair Labor Standards Act's minimum wage and overtime requirements for
employees performing work in connection with the Project.
C. Overtime Requirements. No contractor or subcontractor contracting for any part of the contract work which
may require or involve the employment of laborers or mechanics shall require or permit any such laborer or
UCB1001 Page 11 of 19
mechanic in any workweek in which he or she is employed on such work to work in excess of forty (40) hours in
such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times
the basic rate of pay for all hours worked in excess of 40 hours in such workweek.
D. Payrolls and Basic Records. Payrolls and basic records relating thereto shall be maintained by the
CONTRACTOR during the course of the work and preserved for a period of six (6) years thereafter for all laborers
and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the
Housing Act of 1949, in the construction or development of the Project). Such records shall contain the name,
address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid
(including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the
types described in section 1(b)(2)(B) of the Davis -Bacon Act, Public Law 88 -349 as amended by 40 USC §§ 3141 et
seq., and pursuant to 49 USC §5333(a) et seq., daily and weekly number of hours worked, deductions made and
actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any
laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or
program described in section 1(b)(2)(B) of the Davis -Bacon Act, Public Law 88 -349, as amended by 40 USC § 3141
et seq. and pursuant to 49 USC § 5333(a), the CONTRACTOR shall maintain records which show that the
commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the
plan or program has been communicated in writing to the laborers or mechanics affected, and records which show
the costs anticipated or the actual cost incurred in providing such benefits. CONTRACTOR's employing apprentices ,
or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs
and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates
prescribed in the applicable programs.
E. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth
in paragraph (A) of this section the CONTRACTOR and any subcontractor responsible therefore shall be liable for
the unpaid wages. In addition, such CONTRACTOR and subcontractor shall be liable to the United States for
liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic,
including watchmen and guards, employed in violation of the clause set forth in paragraph (A) of this section, in the
sum of ten dollars ($10) for each calendar day on which such individual was required or permitted to work in excess
411
of the standard workweek of forty (40) hours without payment of the overtime wages required by the clause set forth
in paragraph (C) of this section.
F. Withholding for unpaid wages and liquidated damages. The CONTRACTOR shall upon its own action or
upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld,
from any moneys payable on account of work performed by the CONTRACTOR or subcontractor under any such
contract or any other federal contract with the same prime CONTRACTOR, or any other federally- assisted contract
subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime CONTRACTOR,
such sums as may be determined to be necessary to satisfy any liabilities of such CONTRACTOR or subcontractor
for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (E) of this section.
G. Public Transportation Employee Protective Agreement. To the extent required by Federal Law, the
CONTRACTOR agrees to implement the Project in accordance with the terms and conditions that the U.S.
Secretary of Labor has determined to be fair and equitable to protect the interests of any employees affected by the
Project and that comply with the requirements of 49 USC § 5333 (b), in accordance with the USDOL guidelines,
"Section 5333(b), Federal Transit Law," 29 CFR Part 215 and any amendments thereto. These terms and
conditions are identified in USDOL's certification of public transportation employee protective arrangements to
FTA. The CONTRACTOR agrees to implement the Project in accordance with the conditions stated in that USDOL
certification, which certification and any documents cited therein are incorporated by reference and made part of this
AGREEMENT. The CONTRACTOR also agrees to comply with the terms and conditions of the Special Warranty
for the Non - urbanized Area Program that is most current as of the date of execution of this AGREEMENT and any
alternative comparable arrangements specified by USDOL for application to the Project, in accordance with USDOL
guidelines, "Section 5333(b), Federal Transit Law," 29 CFR Part 215, and any revision thereto.
Section 23
Planning and Private Enterprise
FTA Requirements. The CONTRACTOR agrees to implement the Project in a manner consistent with the plans
developed in compliance with the applicable planning and private enterprise provisions of 49 USC §§ 5303, 5304,
5306, and 5323(a)(1); joint Federal Highway Administration (FHWA)/ FTA regulations, "Statewide Transportation
Planning: Metropolitan Transportation Planning," 23 CFR Part 450 and 49 CFR Part 613; and any amendments
thereto, and with FTA regulations, "Major Capital Investment Projects," 49 CFR Part 611, to the extent that these
UCB1001 Page 12 of 19
•
regulations are consistent with the SAFETEA -LU amendments to the public transportation planning and private
enterprise laws, and when promulgated, any subsequent amendments to those regulations. To the extent feasible, the
CONTRACTOR agrees to comply with the provisions of 49 USC § 5323(k), which afford governmental agencies
and non - profit organizations that receive Federal assistance for non - emergency transportation from Federal
Government sources (other than U.S. I)OT) an opportunity to be included in the design, coordination, and planning
of transportation services. During the implementation of the Project, the CONTRACTOR agrees to take into
consideration the recommendations of Executive Order No. 12803, "Infrastructure Privatization," 31 USC § 501
note, and Executive Order No 12893, "Principles for Federal Infrastructure Investments," 31 USC § 501 note.
Section 24
Substance Abuse
A. Drug. and Alcohol Testing. If receiving FTA 5309 and/or FTA 5311 funding, CONTRACTOR agrees to
establish and implement a drug and alcohol testing program that complies with 49 CFR Part 655, produce any
documentation necessary to establish its compliance with Part 655, and permit any authorized representative of the
U.S. DOT or its operating administrations and WSDOT to inspect the facilities and records associated with the
implementation of the drug and alcohol testing program as required under 49 CFR Part 655 and review the testing
process. The CONTRACTOR agrees further to submit annually the Management Information System (MIS) reports
to WSDOT each year during the term identified in the caption space header above titled "the Term of Project."
B. Drug -free Workplace. To the extent applicable, the CONTRACTOR agrees to comply with the Federal
regulations and guidance related to the Drug Free Workplace Act of 1988, 41 USC §§ 701 et seq., and any
amendments thereto, 2 CFR Part 182, and 49 CFR Part 32, and to FTA regulations, "Prevention of Alcohol Misuse
and Prohibited Drug Use in Transit Operations," 49 CFR Part 655. and 49 USC § 5331.
C. Privacy Act The CONTRACTOR agrees to comply with the confidentiality and other civil rights provisions
pertaining to substance abuse contained in the Civil Rights clause of this AGREEMENT.
Section 25
Federal "51 Coin" Requirements
To the extent required by the Federal Government, the CONTRACTOR agrees to comply with the provisions of
section 104 of the, Presidential $1 Coin Act of 2005, 31 USC § 5112(p), so that the CONTRACTOR's equipment
and facilities requiring the use of coins or currency will be fully capable of accepting and dispensing $1 coins in the
connection with that use. The CONTRACTOR also agrees to display signs and notices denoting the capability of its
equipment and facilities on its premises where coins or currency are accepted or dispensed, including on each
vending machine.
Section 26
Safe Operation of Motor Vehicles
As applicable, CONTRACTOR is encouraged to comply with the following provisions:
A. Executive Order No. 13043, "Increasing Seat Belt Use in the United States," 23 USC § 402 note.
CONTRACTOR is encouraged to adopt and promote on-the-job seat belt use policies and programs for personnel
that operate company -owned vehicles.
B. Executive Order No. 13513, "Federal Leadership on Reducing Text Messaging While Driving," and DOT
Order 3902.10, "Text Messaging While Driving." CONTRACTOR is encouraged to adopt and enforce workplace
safety policies to decrease crashes caused by distracted drivers including policies to ban text messaging while
driving. CONTRACTOR is also encouraged to conduct workplace safety initiatives in a manner commensurate
with its size.
Section 27
Freedom of Information Act
CONTRACTOR understands and agrees that the Freedom of Information Act (FOIA), 5 USC § 552, applies to the
information and documents, both paper and electronic, submitted to WSDOT, FTA and U.S. DOT. The
CONTRACTOR should therefore be aware that all applications and materials submitted that are related to
411 PROJECT will become agency records and are subject to public release through individual FOIA or state public
disclosure requests.
UCB1001 Page 13 of 19
•
Section 28
Coordination of Special Needs Transportation
It is the policy of WSDOT to actively support coordination of special needs transportation in the State. As a
110
condition of assistance, the CONTRACTOR is required to participate in local coordinated planning as led by
CONTRACTOR's relevant Metropolitan Planning Organization (MPO) and /or Regional Transportation Planning
Organization (RTPO). Persons with special transportation needs means those persons, including their personal
attendants, who because of physical or mental disability, income status, or age are unable to transport themselves or
purchase transportation.
Section 29
Agreement Modifications
Either PARTY may request changes to this AGREEMENT. Any changes to the terms of this AGREEMENT must
be mutually agreed upon and incorporated by written amendment to this AGREEMENT. Such amendments shall
not be binding or valid unless signed by the persons authorized to bind each of the PARTIES.
Section 30
Changed Conditions Affecting Performance
The CONTRACTOR hereby agrees to immediately notify WSDOT in writing of any change in conditions or law, or
of any other event, including any current or prospective dispute, which may adversely affect WSDOT's interst in the
PROJECT or affect CONTRACTOR's ability to perform the Project in accordance with the provisions of this
AGREEMENT.
Section 31
Universal Identifier
CONTRACTOR shall, in accordance with 2 CFR Part 25, obtain a Dun and Bradstreet Data Universal Numbering
System (DUNS) number as a univeral identifier for Federal financial asistance recipients.
Section 32
Disputes
A. Disputes. Disputes, arising in the performance of this AGREEMENT, which are not resolved by agreement of
•
the PARTIES, shall be decided in writing by 'the WSDOT Public Transportation Assistant Director or Assistant
Director's designee. This decision shall be final and conclusive unless within ten (10) days from the date of the
CONTRACTOR's receipt of WSDOT's written decision, the CONTRACTOR mails or otherwise furnishes a
written appeal to the Director of the Public Transportation Division or the Director's designee. The
CONTRACTOR's appeal shall be decided in writing by the Director of the Public Transportation Division within
thirty (30) days of receipt of the appeal by the Director of Public Transportation Division or Director's designee.
The decision shall be binding upon the CONTRACTOR and the CONTRACTOR shall abide by the decision.
B. Performance During Dispute. Unless otherwise directed by WSDOT, CONTRACTOR shall continue
performance under this AGREEMENT while matters in dispute are being resolved.
C. Claims for Damages. Should either PARTY to this AGREEMENT suffer injury or damage to person,
property, or right because of any act or omission of the other PARTY or any of that PARTY's employees, agents or
others for whose acts it is legally liable, a claim for damages therefore shall be made in writing to such other
PARTY within thirty (30) days after the first observance of such injury or damage.
D. Rights and Remedies. All remedies provided in this AGREEMENT are distinct and cumulative to any other
right or remedy under this document or afforded by law or equity, and may be exercised independently,
concurrently, or successively and shall not be construed to be a limitation of any duties, obligations, rights and
remedies of the PARTIES hereto. No action or failure to act by the WSDOT or CONTRACTOR shall constitute a
waiver of any right or duty afforded any of them under this AGREEMENT, nor shall any such action or failure to
act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in
writing.
Section 33
State and Local Law
Except when a Federal statute or regulation pre -empts state and/or local law, regulation or ordinance, no provision
of this AGREEMENT shall require the CONTRACTOR to observe or enforce compliance with any provision,
perform any other act, or do any other thing in contravention of state or local law, regulation or ordinance. Thus if
any provision or compliance with any provision of this AGREEMENT violate state or local law, regulation or
ordinance, or would require the CONTRACTOR to violate state or local law, regulation or ordinance, the
UCB1001 Page 14 of 19
CONTRACTOR agrees to notify WSDOT immediately in writing. Should this occur, WSDOT and the
CONTRACTOR agree to make appropriate arrangements to proceed with or, if necessary, expeditiously, terminate
4110 the Project.
Section 34
Termination
A. Termination for Convenience. WSDOT and/or the CONTRACTOR may suspend or terminate this
AGREEMENT, in whole or in part, and all or any part of the federal and/or state financial assistance provided
herein, at any time by written notice to the other PARTY in accordance with 49 CFR Part 18 § 18.44 or 49 CFR Part
19 § 19.61, whichever is applicable. WSDOT and the CONTRACTOR shall agree upon the AGREEMENT
termination provisions including but not limited to the settlement terms, conditions, and in the case of partial
termination the portion to be terminated. Written notification must set forth the reasons for such termination, the
effective date, and in case of a partial termination, the portion to be terminated. However, if, in the case of partial
termination, WSDOT determines that the remaining portion of the award will not accomplish the purposes for which
the award was made WSDOT may terminate the award in its entirety. WSDOT and/or the CONTRACTOR may
terminate this AGREEMENT for convenience for reasons including, but not limited to, the following:
1. The requisite federal and/or state funding becomes unavailable through failure of appropriation or
otherwise;
2. WSDOT determines, in its sole discretion, that the continuation of the Project would not produce beneficial
results commensurate with the further expenditure of federal and/or state funds;
3. The CONTRACTOR is prevented from proceeding with the Project as a direct result of an Executive Order
of the President with respect to the prosecution of war or in the interest of national defense; or an Executive Order of
the President or Governor of the State with respect to the preservation of energy resources;
4. The CONTRACTOR is prevented from proceeding with the Project by reason of a temporary preliminary,
special, or permanent restraining order or injunction of a court of competent jurisdiction where the issuance of such
order or injunction is primarily caused by the acts or omissions of persons or agencies other than the
CONTRACTOR;
5. The Federal Government and/or State Government determines that the purposes of the statute authorizing
the Project would not be adequately served by the continuation of federal and/or state financial assistance for the
Project; or
6. The Federal Government terminates this AGREEMENT due to a determination that the CONTRACTOR
has: (a) willfully misused Federal assistance Funds by failing to make adequate progress on the Project, (b) failed to
make reasonable and appropriate use of the Project real property, facilities, or equipment, or (c) failed to comply
with the terms of this AGREEMENT. In the event of a termination under this subsection, and the Federal
Government exercises its right to require WSDOT to refund any or all of the Federal Funds provided for the Project,
the CONTRACTOR shall return all monies reimbursed to it by WSDOT, in the amount required by the Federal
Government, within sixty (60) days of its receipt of a certified letter from WSDOT.
7. In the case of termination for convenience under subsections A.lthrough A.5 above, WSDOT shall
reimburse the CONTRACTOR for all costs payable under this AGREEMENT which the CONTRACTOR properly
incurred prior to termination. The CONTRACTOR shall promptly submit its claim for reimbursement to WSDOT.
If the CONTRACTOR has any property in its possession belonging to WSDOT, the CONTRACTOR will account
for the same, and dispose of it in the manner WSDOT directs.
B. Termination for Default. WSDOT may suspend or terminate this AGREEMENT for default, in whole or in
part, and all or any part of the federal financial assistance provided herein, at any time by written notice to the
CONTRACTOR, if the CONTRACTOR materially breaches or fails to perform any of the requirements of this
AGREEMENT, including:
1. Takes any action pertaining to this AGREEMENT without the approval of WSDOT, which under the
procedures of this AGREEMENT would have required the approval of WSDOT;
2. Jeopardizes its ability to perform pursuant to the AGREEMENT, United States of America laws,
Washington state laws, or local governmental laws under which the CONTRACTOR operates.
3. Fails to make reasonable progress on the Project or other violation of this AGREEMENT that endangers
substantial performance of the Project; or
411 4. Fails to perform in the manner called for in this AGREEMENT or fails to comply with, or is in violation of,
any provision of this AGREEMENT. WSDOT shall serve a notice of termination on the CONTRACTOR setting
forth the manner in which the CONTRACTOR is in default hereunder. If it is later determined by WSDOT that the
CONTRACTOR had an excusable reason for not performing, such as events which are not the fault of or are beyond
the control of the CONTRACTOR, such as a strike, fire or flood, WSDOT may:, (a) allow the CONTRACTOR to
UCB1001 • Page 15 of 19
continue work after setting up a new delivery of performance schedule, or (b) treat the termination as a termination
for convenience.
• C. WSDOT, in its sole discretion may, in the case of a termination for breach or default, allow the
CONTRACTOR ten (10) business days, or such longer period as determined by WSDOT, in which to cure the
defect. In such case, the notice of termination will state the time period in which cure is permitted and other
appropriate conditions. If the CONTRACTOR fails to remedy to WSDOT's satisfaction the breach or default within
the timeframe and under the conditions set forth in the notice of termination, WSDOT shall have the right to
terminate this AGREEMENT without any further obligation to CONTRACTOR. Any such termination for default
shall not in any way operate to preclude WSDOT from also pursuing all available remedies against CONTRACTOR
and its sureties for said breach or default.
D. In the event that WSDOT elects to waive its remedies for any breach by CONTRACTOR of any covenant, term
or condition of this AGREEMENT, such waiver by WSDOT shall not limit WSDOT's remedies for any succeeding
breach of that or of any other term, covenant, or condition of this AGREEMENT.
Section 35
Forbearance by WSDOT Not a Waiver
Any forbearance by WSDOT in exercising any right or remedy hereunder, or otherwise afforded by applicable law,
shall not be a waiver of or preclude the exercise of any such right or remedy.
Section 36
Lack of Waiver
In no event shall any WSDOT payment of grant funds to the CONTRACTOR constitute or be construed as a waiver
by WSDOT of any CONTRACTOR breach or default. Such payment shall in no way impair or prejudice any right
or remedy available to WSDOT with respect to any breach or default.
Section 37
Limitation of Liability
A. The CONTRACTOR shall indemnify and hold harmless WSDOT, its agents, employees, and officers and
process and defend at its own expense any and all claims, demands, suits at law or equity, actions, penalties, losses,
•
damages, or costs (hereinafter referred to collectively as "claims "), of whatsoever kind or nature brought against
WSDOT arising out of, in connection with or incident to the execution of this AGREEMENT and/or the
CONTRACTOR's performance or failure to perform any aspect of this AGREEMENT. This indemnity provision
applies to all claims against WSDOT, its agents, employees and officers, and subcontractors arising out of, in
connection with or incident to the negligent acts omissions of the CONTRACTOR, its agents, employees and
officers. Provided, however, that nothing herein shall require the CONTRACTOR to indemnify and hold harmless
or defend the WSDOT, its agents, employees or officers to the extent that claims are caused by the negligent acts or
omissions of the WSDOT, its agents, employees or officers. The indemnification and hold harmless provision shall
survive termination of this AGREEMENT.
B. The CONTRACTOR shall be deemed an independent CONTRACTOR for all purposes, and the employees of
the CONTRACTOR or its subcontractors and the employees thereof, shall not in any manner be deemed to be the
employees of WSDOT.
C. The CONTRACTOR specifically assumes potential Liability for actions brought by CONTRACTOR's
employees and/or subcontractors and solely for the purposes of this indemnification and defense, the
CONTRACTOR specifically waives any immunity under the State Industrial Insurance Law, Title 51 Revised Code
of Washington.
D. In the event either the CONTRACTOR or WSDOT incurs attorney's fees, costs or other legal expenses to
enforce the provisions of this section of the AGREEMENT against the other PARTY, all such fees, costs and
expenses shall be recoverable by the prevailing PARTY.
Section 38
WSDOT Advice
The CONTRACTOR bears complete responsibility for the administration and success of the Project as it is defined
•
by this AGREEMENT and any amendments thereto. If the CONTRACTOR solicits advice of WSDOT on problems
that may arise, the offering of WSDOT advice shall not shift the responsibility of the CONTRACTOR for the
UCB1001 Page 16 of 19
correct administration and success, of the Project, and WSDOT shall not be held liable for offering advice to the
CONTRACTOR.
Section 39
Venue and Process
In the event that either PARTY deems it necessary to institute legal action or proceedings to enforce any right or
obligation under this AGREEMENT, the PARTIES hereto agree that any such action shall be initiated in the
Superior Court of the State of Washington situated in Thurston County. The CONTRACTOR hereby accepts the
issuing and service of process by registered mail at the mailing address shown in the caption space headers above of
this AGREEMENT titled CONTRACTOR and Washington State Department of Transportation. The PARTIES
agree that the laws of the state of Washington shall apply.
Section 40
Subrogation
A. Prior to Subrogation. WSDOT may require the CONTRACTOR to take such action as may be necessary or
appropriate to preserve the CONTRACTOR's right to recover damages from any person or organization alleged to
be legally responsible for injury to any equipment, property, or transportation program in which WSDOT has a
financial interest.
B. Subrogation. WSDOT may require the CONTRACTOR to assign to it all right of recovery against any person
or organization for loss, to the extent of WSDOT's loss. Upon assignment, the CONTRACTOR shall execute,
deliver, and do whatever else necessary to secure WSDOT's rights. The CONTRACTOR shall do nothing after any
loss to prejudice the rights of WSDOT.
C. Duties of the CONTRACTOR. If WSDOT has exercised its right of subrogation, the CONTRACTOR shall
cooperate with WSDOT and, upon WSDOT's request, assist in the prosecution of suits and enforce any right against
any person or organization who may be liable to WSDOT. The CONTRACTOR shall attend hearings and trials as
requested by WSDOT, assist in securing and giving evidence as requested by WSDOT, and obtain the attendance of
witnesses as requested by WSDOT.
® Section 41
Counterparts
This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be
an original having identical legal effect. The CONTRACTOR does hereby ratify and adopt all statements,
representations, warranties, covenants, and agreements and their supporting materials contained and/or mentioned
herein, and does hereby accept WSDOT's grant and agrees to all of the terms and conditions thereof.
Section 42
Complete Agreement
This document contains all covenants, stipulations, and provisions ,agreed upon by WSDOT. No agent or
representative of WSDOT has authority to make, and WSDOT shall not be bound by or be liable for, any statement,
representation, promise, or agreement not set forth herein or made by written amendment hereto.
Section 43
Severability
If any covenant or provision of this AGREEMENT shall be adjudged void, such adjudication shall not affect the
validity or obligation of performance of any other covenant or provision, or any part thereof, which in itself is valid
if such remainder conforms to the terms and requirements of applicable law and the intent of this AGREEMENT.
No, controversy concerning any covenant or provision shall delay the performance of any other covenant or
provision except as herein allowed.
Section 44
Section Headings
All section headings are inserted for convenience only and shall not affect any construction or interpretation of this
AGREEMENT.
Section 45
4111 Execution
This AGREEMENT is executed by the Director, Public Transportation Division, State of Washington, Department
of Transportation or the Director's designee, not as an individual incurring personal obligation and liability, but
UCB1001 Page 17 of 19
solely by, for, and on behalf of the State of Washington, Department of Transportation, in the capacity as Director,
Public Transportation Division, or as a designee.
Section 46
Binding Agreement
The undersigned acknowledge that they are authorized to execute this AGREEMENT and bind their respective
agencies or entities to the obligations set forth herein.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and year last written
below.
WASHINGTON STATE CONTRACTOR
DEPARTMENT OF TRANSPORTATION
By: B
Brian Lagerberg, Director Authorized Representative
Public Transportation Division
Title:
Print Name:
Date: Date:
•
APPROVED AS TO FORM
By: Susan Cruise
Assistant Attorney General
Date: June 6, 2011.
•
•
UCB1001 Page 18 of 19
Exhibit I
SCOPE OF WORK AND BUDGET
Total Project Cost
Federal Funds $66,000
State Funds $132,000
Contractor Funds $264,000
Total Project Cost $462,000
Funding by Project
PROJECT A
Scope of Work: Provide operating funding assistance to expand service to provide a coordinated route
between Ellensburg and Yakima.
Funding Percentage Current Projected Totals
2011 -2012 2012 -2013
FTA 5311 14% $66,000 $66,000 $132,000
Rural Mobility 29% $132,000 $132,000
Competitive
Contractor Funds _ 57% $264,000 _ $264,000
Total Project Cost 100% $462,000 $528,000
Budget: Funding and percentages identified reflect current project funds for 2011 -2012. 2012 -2013
Projected funds are subject to renegotiation based on availability of funds and will be added by
amendment when available.
411)
UCB1001 Page 19 of 19