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HomeMy WebLinkAboutR-2005-118 Washington State Department of Transportation ContractsRESOLUTION NO. R-2005-118 A RESOLUTION authorizing the City Manager to execute two equally funded contracts between the City of Yakima and the Washington State Department of Transportation for $78,376 each that have been awarded to Yakima Transit to cover the allocated Special Needs 2005 — 2007 biennium period under the American Disability Act (ADA) grant program. WHEREAS, the City of Yakima Transit Division complies with State and Federal ADA requirement in providing transportation needs for our passengers with Special Needs, and WHEREAS, the State of Washington through the Washington State Department of Transportation, (WSDOT) provides funding to Transit Agencies to assist in meeting ADA compliance issues within each respective service area; and WHEREAS, the Special Needs Coalition of Yakima County have identified a number of issues that require ADA funded intervention; and WHEREAS, Yakima Transit, as the City's provider of public transportation to its residents, maintains ADA accessibility on its bus fleet and at its stop locations as a requirement of compliance to the regulations, and the Council of the City of Yakima deems it to be in the best interest of the City of Yakima and Yakima Transit to approve the attached agreements with WSDOT for the securing of State allocated funding for ADA projects in our area, now, therefore; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached agreements with WSDOT for ADA funding assistance in the amount of $156,752. for the biennium period that ends on June 30, 2007. ADOPTED BY THE CITY COUNCIL this 2ndd f August, 2005 "ATTEST: Kaivi_v,, .GSfrgo..e,_., City Clerk Paul P. George, Mayor State Operating Consolidated Grant Agreement Washington State Department of CONTRACTOR Transportation Yakima Transit 310 Maple Park Avenue SE City of Yakima, Transit Division PO Box 47387 2301 Fruitvale Boulevard Olympia, WA 98504-7387 Yakima, WA 98902-1225 PROJECT COST State Funds $ 78,376 Contractor Funds $ - Total Cost $ 78,376 AGREEMENT NUMBER GCA4511 Scope of Project: Scope of Project as set forth in Exhibit I, Scope of Project and Budget, attached and incorporated by this reference. Term of Project: Effective upon execution through June 30, 2007 Service Area: City of Yakima THIS AGREEMENT, entered into by the Washington State Department of (hereinafter referred to as "WSDOT") and the contractor identified above (hereinafter referred to as the "CONTRACTOR"), and/or individually referred to as the "PARTY" and collectively referred to as the "PARTIES", WITNESSETH THAT: WHEREAS, the State of Washington in its Sessions Laws of 2005, chapter 313, section 225 provides Rural Mobility and Paratransit/Special Needs funding through its 2005-2007 biennial appropriations to WSDOT; WHEREAS, the State of Washington Rural Mobility funds provide for support of persons in non -urbanized and small urban areas; WHEREAS, this AGREEMENT is subject to the appropriations of the State of Washington; NOW, THEREFORE, in consideration of the mutual covenants herem set forth, WSDOT and the CONTRACTOR agree to the following terms and conditions Section 1 Purpose of Agreement The purpose of this AGREEMENT is for WSDOT to provide operating funds to the CONTRACTOR to be used to assist with providmg transportation services to residents of rural areas and/or residents with special needs within the Service Area (hereinafter referred to as "Project"), by the CONTRACTOR and to state the terms, conditions, and mutual understandings of the PARTIES as to the manner in which the Project will be undertaken and completed. Section 2 Scope of Project The CONTRACTOR shall undertake and complete the Project described in the caption space above titled "Scope of Project," in accordance with the terms and conditions of this AGREEMENT The CONTRACTOR shall commence, perform, and complete the Project within the period of time defined within the caption space titled "Term of Project" Section 3 Contractor's Share of Project Costs The cost of the Project shall be in the amounts detailed in the caption space above titled "PROJECT COST". The CONTRACTOR agrees to expend eligible funds, together with the CONTRACTOR funds allocated for the Project, in an amount sufficient to complete the Project as detailed in caption space titled "PROJECT COST" The CONTRACTOR further agrees that there shall be no reduction in the amount specified as the CONTRACTOR's share unless there is a concurrent proportional reduction in the WSDOT share. If at any time the CONTRACTOR becomes aware that the cost which it expects to incur in the performance of this AGREEMENT, will differ from the amount indicated in the caption space titled "TOTAL PROJECT COST", above, the CONTRACTOR shall notify WSDOT in wntmg within three (3) business days of making that determination. 2 Section 4 Reimbursement A. WSDOT funds shall be used to reimburse the CONTRACTOR for allowable expenses incurred m completing the Project as described in the caption space above titled Scope of Project. Allowable Project expenses shall be determined by WSDOT as described in WSDOT's "Guide to Managing Your Public Transportation Grant", which is by this reference incorporated as if fully set out and shall constitute a full provision and term of this AGREEMENT. In no event shall the total amount reimbursed by WSDOT exceed WSDOT's funds identified in the caption space titled "PROJECT COST," above B Payment will be made by WSDOT on a reimbursable basis for actual costs incurred. 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 30 days. 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's final payment request must be received by WSDOT by July 15, 2007, within 30 days of the completion of the Project, or within 30 days of the termination of this AGREEMENT, whichever is sooner. Any payment request received after July 15, 2007 will not be eligible for reimbursement. Section 5 Assignments and Subcontracts, Unless otherwise authorized in writing and in advance by WSDOT, the CONTRACTOR shall not assign any portion of the Project or execute any contract, amendment, or change order thereto, or obligate itself in any manner with any assignee with respect to its rights and responsibilities under this AGREEMENT The CONTRACTOR agrees to include Sections 8 through 17 of this AGREEMENT m each subcontract; and in all contracts it enters into for the employment of any individuals, procurement of any incidental goods or supplies, or the performance of any work to be accomphshed under 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 mcluded in advertisement or mvitation to bid for any procurement by the CONTRACTOR under this AGREEMENT "This AGREEMENT is subject to the appropriations of the State of Washington". Section 6 Reports A. The CONTRACTOR shall prepare quarterly reports regarding services provided pursuant to this AGREEMENT and other related information, or as requested by WSDOT. Those reports include, but are not limited to. 1. Passenger Trips Provided 2. Project Service Hours Provided 3. Project Revenue Miles Provided 4. Narrative Progress Report 5. Financial Status of Project Section 7 General Compliance Assurance The CONTRACTOR agrees to comply with such instructions as prescribed in WSDOT's "Guide to Managing Your Public Transportation Grant". The CONTRACTOR agrees that WSDOT, and/or any authorized WSDOT representative, shall have not only the right to monitor the compliance of the CONTRACTOR with respect to the provisions of this AGREEMENT but also have the right to seek judicial enforcement with regard to any matter arising under this AGREEMENT Section 8 No Obligation by the State Government No contract between the CONTRACTOR and its subcontractors shall create any obligation or liability for 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. Page 2 of 9 GCA4511 3 Section 9 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 bemg understood that in such matters they are acting solely as agents of WSDOT. Section 10 Ethics 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, and agrees to comply with Chapter 42.52 RCW 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 sub -recipient. The 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. 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 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: 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 orgamzational 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 this AGREEMENT work. B Employment of Former WSDOT Employees. The CONTRACTOR hereby warrants that it shall not engage on a full, 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 Section 11 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 provision in Chapter 49.60 RCW Section 12 Environmental Protection The CONTRACTOR agrees to comply with all applicable requirements of Chapter 43.21C RCW "State Environmental Policy Act" (SEPA). Section 13 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. 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 upon request, and, to the extent feasible, kept separate from documents not pertaining to the Project. Page 3 of 9 GCA4511 4 B. Documentation of Project Costs and Program Income. The CONTRACTOR agrees to support all indirect and direct costs charged to the Project, including any approved services contributed by the CONTRACTOR or others, with properly executed payrolls, time records, mvoices, contracts, or vouchers describing in detail the nature and propriety of the charges. The CONTRACTOR also agrees to maintain accurate records of all program income derived from implementing the Project. Section 14 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. 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 obtain any other audits required by WSDOT at CONTRACTOR's expense Project closeout will not alter the CONTRACTOR's audit responsibilities. C. Inspection. The CONTRACTOR agrees to permit WSDOT, the State Auditor, or their authorized representatives, to inspect all Project work materials, payrolls, and other data, and to audit the books, records, and accounts of the CONTRACTOR and its contractors pertammg to the Project. The CONTRACTOR agrees to require each third party to permit WSDOT, and the State Auditor 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. Section 15 Labor Provisions Overtime Requirements. No CONTRACTOR or subcontractor contracting for any part of the Project work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty 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 forty hours in such workweek. CONTRACTOR will comply with Title 49 RCW, Labor Regulations. Section 16 Coordination of Special Needs Transportation It is the policy of WSDOT to actively support coordination of special needs transportation in the state. As a condition of assistance, the CONTRACTOR is required to participate m local transportation coordination coalitions in their service area that are sponsored by the Agency Council on Coordmated Transportation (ACCT) Section 17 Stateand Local Law Except when a federal statute or regulation pre-empts state or, local law, 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 m contravention of state or local law. Thus if any provision or compliance with any provision of this AGREEMENT violate state or local law, or would require the CONTRACTOR to violate state or local law, the 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, terrmnate the Project. Section 18 Limitation of Liability A. The CONTRACTOR shall indemnify and hold harmless WSDOT, its agents, employees, and officers harmless from 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 arising out of, in connection with or mcident to the negligent acts or omissions of the CONTRACTOR, its agents, Page 4 of 9 GCA4511 5 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's relation to the WSDOT shall be at all times as an independent contractor 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 this AGREEMENT against the other PARTY, all such fees, costs and expenses shall be recoverable by the prevailing PARTY Section 19 Changed Conditions Affecting Performance The CONTRACTOR hereby agrees to immediately notify WSDOT of any change in conditions or law, or of any other event, which may affect its ability to perform the Project in accordance with the provisions of this AGREEMENT Section 20 Agreement Modifications Either PARTY may request changes in these provisions. Any changes to the provisions of this AGREEMENT must be mutually agreed upon and incorporated by written amendment to this AGREEMENT No variation or alteration of the terms of this AGREEMENT shall be valid unless made in writing and signed by the authorized representatives of the PARTIES hereto. Section 21 Termination A. Termination for Convenience. WSDOT may suspend or terminate this AGREEMENT, m whole or in part, and all or any part of the financial assistance provided herein, at any time by written notice to the CONTRACTOR when it is in WSDOT's best interest or convenience for reasons including, but not limited to, the following: 1. The requisite 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 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 restrarnmg 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 Government determines that the purposes of the statute authonzmg the Project would not be adequately served by the continuation of financial assistance for the Project; or 6. In the case of termination for convemence under subsections 1-5 above, WSDOT shall reimburse the CONTRACTOR for all costs payable under this AGREEMENT that the CONTRACTOR properly incurred prior to termination. The CONTRACTOR shall promptly submit its claim for reimbursement to WSDOT. If the CONTRACTOR has any property m 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 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 this 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 perfoiivance of the Project; or Page 5 of 9 GCA4511 6 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: (1) allow the CONTRACTOR to continue work after setting up a new delivery of performance schedule, or (2) 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 22 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 23 WSDOT Advice The CONTRACTOR bears complete responsibihty for the administration and success of the Project as it is defined by this AGREEMENT and any amendments thereto If the CONTRACTOR seeks advice from WSDOT on problems that may arise, the offering of WSDOT advice shall not shift the responsibility of the CONTRACTOR for the correct administration and success of the Project, and WSDOT shall not be held liable for offering advise to the CONTRACTOR. Section 24 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, assist in securing and giving evidence, and obtain the attendance of witnesses. Section 25 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 Page 6 of 9 GCA4511 7 Section 26 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 Pubhc Transportation and Commute Options (PT&CO) Contracts and Grants Administrator, a representative of WSDOT This decision shall be final and conclusive unless within ten (10) days from the date of receipt of its copy, the CONTRACTOR mails or otherwise furnishes a written appeal to the Manager of Public Transportation and Commute Options, the authorized representative of WSDOT In connection with any such appeal, the CONTRACTOR shall be afforded an opportunity to be heard and to offer evidence in support of its position. The CONTRACTOR'S appeal shall be decided in writing by the Manager of Public Transportation and Commute Options. The decision of the Manager of Public Transportation and Commute Options shall be bmdmg 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 bemg 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 writmg to such other PARTY within 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 27 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 PARTIES hereby accept the issuing and service of process by registered mail at the mailing address shown in the headings of this AGREEMENT under CONTRACTOR and Washington State Department of Transportation. Section 28 Independent Contractor 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 Section 29 Section Headings All section headings are inserted for convenience only and shall not affect any construction or interpretation of this AGREEMENT Section 30 Execution and Acceptance 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 31 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. Page 7 of 9 GCA4511 8 Section 32 Affect of Invalidity of Any Provision Hereof 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 33 Execution This AGREEMENT is executed by the Director, Public Transportation and Rail Division, State of Washington, Department of Transportation or the Director's designee, not as an individual incurring personal obligation and liability, but solely by, for and on behalf of the State of Washington, Department of Transportation, in the capacity as Director, Public Transportation and Rail Division, or as a designee. IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and year last written below WASHINGTO TATE DEPARE OF TRANSPORTATION By TUD G. IGER Dir: cto , Public Transporta n and Rail Division Date. Bl* Approved as to form only: By: Susan Cruise, Assistant Attorney General Date: May 26,2005 CONTRACTOR By: Print Name: Print Title. Who by this srgnatn e certifies their au"' onty to execute this Agreement on behalf of the Contractor. Date. B CITY CQNTRAc r 1 RESOLUTION No.K.- S-- I 1 S Page 8 of 9 GCA4511 9 EXHIBIT I SCOPE OF PROJECT AND BUDGET Total Project Costs State Funds $ 78,376 Contractor Funds $ - Total Cost $ 78,376 Funding by Project: 1. PROJECT A Scope of Work: Provide operating funding assistance for transportation services to persons with special needs, including travel information services for the City of Yakima. Budget: Funding identified reflects Total Project Budget for 2005/2007. Funding Percentage Total Project Budget Formula Transit Special Needs Paratransit 100% $ 78,376 Contractor Funds 0% $ - Total Project Cost 100% $ 78,376 Page 9 of 9 GCA4511 State Capital Consolidated Grant Agreement Vehicle Washington State Department of CONTRACTOR Transportation Yakima Transit 310 Maple Park Avenue SE City of Yakima, Transit Division PO Box 47387 2301 Fruitvale Boulevard Olympia, WA 98504-7387 Yakima, WA 98902-1225 PROJECT COST State Funds $ 78,376 Contractor Funds $ - Total Cost $ 78,376 AGREEMENT NUMBER Scope of Project: As set forth in Exhibit I, Scope of Project GCA4606 and Budget attached and incorporated by this reference. Term of Project: July 1, 2005 through Service Area: City of Yakima June 30, 2007 THIS AGREEMENT, entered into by the Washington State Department of Transportation (hereinafter referred to as "WSDOT") and the contractor identified above (hereinafter referred to as the "CONTRACTOR"), and/or individually referred to as the "PARTY" and collectively referred to as the "PARTIES", WITNESSETH THAT. WHEREAS, the State of Washington in its Sessions Laws of 2005, chapter 313, section 225 provides Rural Mobility and Paratransit/Special Needs funding through its 2005-2007 biennial appropriations to WSDOT, WHEREAS, the State of Washington Rural Mobility funds provide for support of persons m non -urbanized and small urban areas; WHEREAS, the State of Washington Paratransit/Special Needs funds provide for the support of persons with special transportation needs; and NOW, THEREFORE, in consideration of the mutual covenants herein set forth, WSDOT and the CONTRACTOR agree to the following terms and conditions Section 1 Purpose of Agreement The purpose of this AGREEMENT is to provide for Equipment to be used in the provision of transportation services to persons in the State of Washington (hereinafter referred to as "Project"), by the CONTRACTOR and to state the terms, conditions, and mutual understandings of the PARTIES as to the manner in which the Project will be undertaken and completed. Section 2 Scope of Project The CONTRACTOR shall undertake and complete the purchase of the Project Equipment referred to in the caption space titled "Scope of Project," above (hereinafter referred to as "Project Equipment"), and operate the Project Equipment within the area described in the caption space titled "Service Area", above, in accordance with the terms and conditions of this AGREEMENT. Section 3 Time of Performance The Project period of this AGREEMENT shall begin on the date shown in the caption space titled "Term of Project" and continue through the useful life of the Project Equipment regardless of the date of signature and execution of this AGREEMENT, unless terminated as provided herein. WSDOT has defined the useful life of Project Equipment in its "Guide to Managing Your Public Transportation Grant, for 2005-2007 State and Federal Grants Awarded by the Washington State Department of Transportation", and any amendments thereto (hereinafter referred to as "Guide to Managing Your Public Transportation Grant"), which is by this reference incorporated as if fully set out and shall constitute a full provision and term of this AGREEMENT. Page 1 of 10 GCA4606 Section 4 Contractor's Funds of Project Costs The cost of the Project shall be in the amount indicated in the caption space titled "PROJECT COST" above. The CONTRACTOR agrees to expend eligible funds in an amount sufficient, together with the state funds allocated for the Project, to assure payment of the amount of Total Cost indicated under the caption space titled "Project Cost" The CONTRACTOR further agrees that there shall be no reduction in the amount specified as the CONTRACTOR'S funds unless there is a concurrent proportional reduction in the state funds. If at any time the CONTRACTOR becomes aware that the cost which it expects to mcur in the performance of this AGREEMENT will differ from the amount indicated as the Total Cost in the caption space titled "Project Cost", the CONTRACTOR shall notify WSDOT promptly in writing to that effect. All costs charged against this AGREEMENT must be incurred by June 30, 2007. Section 5 Inspection Upon Delivery The CONTRACTOR shall inspect Project Equipment purchased pursuant to this AGREEMENT at the time of delivery to the CONTRACTOR. By virtue of the receipt of Project Equipment, the CONTRACTOR agrees that it has fully inspected the Project Equipment and accepts it as in good condition and repair, that it is satisfied with the Project Equipment, and that the Project Equipment complies will all regulations, rules and laws. Section 6 Miscellaneous Charges and Conditions The CONTRACTOR shall pay all storage charges, parking charges, and fines, as well as any fees (including vehicle registration, license and inspection fees (safety and emission control), and taxes which may be imposed with respect to the Project Equipment by a duly constituted governmental authority as the result of the CONTRACTOR's use or intended use of the Project Equipment. All replacements, repairs, or substitutions of parts or Project Equipment shall be at the cost and expense of the CONTRACTOR. Section 7 Reimbursement A. WSDOT, solely using state grant funds, shall reimburse the CONTRACTOR for the state funds of the CONTRACTOR's allowable expenses incurred in completing the Project referred to in the caption space Scope of Project. Allowable Project expenses shall be determined by WSDOT as described in WSDOT's "Guide to Managing Your Public Transportation Grant." In no event shall the total amount reimbursed by WSDOT hereunder exceed the state funds identified in the caption space titled "PROJECT COST," above. B. Payment is subject to the submission to and approval by WSDOT of appropriate invoices, reports, and financial summaries. C. The CONTRACTOR's final payment request must be received by WSDOT by July 15, 2007, within 30 days of the completion of the Project, or within 30 days of the termination of this AGREEMENT, whichever is sooner. Any payment request received after July 15, 2007 will not be eligible for reimbursement. Section 8 Assignments, Subcontracts, and Leases A. Unless otherwise authorized in advance 111 writing by WSDOT, the CONTRACTOR shall not assign any Project Equipment under this AGREEMENT, or execute any contract, amendment, or change order thereto pertaining to the Project Equipment, or obligate itself in any mamler with any third party with respect to its rights and responsibilities under this AGREEMENT or lease or lend the Project Equipment or any part thereof to be used by anyone not under the CONTRACTOR's supervision. B. The CONTRACTOR agrees to include Sections 9 through 18 of this AGREEMENT in each subcontract 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 It is further agreed that those clauses shall not be modified, 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 advertisement or invitation to bid for any procurement by the CONTRACTOR under this AGREEMENT Statement of Financial Assistance - This AGREEMENT is subject to the appropriations of the State of Washington. Section 9 Reports and Use of Project Equipment A. The CONTRACTOR agrees that the Project Equipment shall be used for the provision of transportation service within the area described 111 the space titled "Service Area", above, for the Project Equipment's useful life The CONTRACTOR further agrees that it will not use or permit the use of the Project Equipment m a negligent manner or m violation of any law or regulation or so as to avoid any insurance covering the same, or permit the Project Equipment to become subject to any lien, charge, or encumbrance Page 2 of 10 GCA4606 Should the CONTRACTOR unreasonably delay or fail to use the Project Equipment during the useful hfe of the Project Equipment, the CONTRACTOR agrees that it may be required to refund the entire amount of the state funds expended on the Project. The CONTRACTOR shall immediately notify WSDOT when any Project Equipment is withdrawn from Project use or when Project Equipment is used in a manner substantially different from that identified in the caption space titled "Scope of Project." If the Project Equipment is permanently removed from transportation service, the CONTRACTOR agrees to immediately contact WSDOT for instructions regarding the disposal of the Project Equipment. The CONTRACTOR understands that the Project Equipment shall be used to provide passenger service levels as described below. 1 A minimum of 100 passenger service miles per vehicle per week; or 2 A minimum of 100 one -way passenger trips per vehicle per week. B Reports. The CONTRACTOR shall advise WSDOT regarding the progress of the Project at such times and in such manner as WSDOT may require, including, but not limited to, interim reports. The CONTRACTOR shall keep satisfactory written records with regard to the use of Project Equipment and shall submit the following reports to, and m a form and at such times prescribed by, WSDOT until the useful hfe of the Project Equipment expires 1. Reports shall be prepared describing the current usage of Project Equipment and other data as requested by WSDOT m the form of memos, e-mails or telephone requests. Those reports include, but are not limited to: a) Vehicle Rider -ship; b) Vehicle Mileage, c) Service Hours; and d) Project Equipment Maintenance. 2 In the event any portion of the Project Equipment is damaged and the repair of such damage will cost $500 or more, the CONTRACTOR shall notify WSDOT within seven (7) days after the occasion of the damage, includmg the circumstances thereof. 3. The CONTRACTOR shall collect and submit to WSDOT, at such time as WSDOT may require, such financial statements, data, records, contracts, and other documents related to the Project as may be deemed necessary by WSDOT. 4 The CONTRACTOR shall also submit to WSDOT at the beginning of each calendar year during the "Term of Project", a certification that the Project Equipment is still bemg used in accordance with the terms of this Section and that no part of the local contribution to the cost of the Project has been refunded or reduced. C. Remedies for Misuse or Noncompliance. The CONTRACTOR shall not use any Project Equipment m a manner different from that described in Section 2 of this AGREEMENT If WSDOT determines that Project Equipment has been used m a manner different from that described in Section 2, WSDOT may direct the CONTRACTOR to dispose of the Project Equipment acquired by the CONTRACTOR. WSDOT may also withhold payments should it determine that the CONTRACTOR has failed to comply with any provision of this AGREEMENT Section 10 Maintenance of Project Equipment The CONTRACTOR shall make all necessary repairs and reasonably maintain the Project Equipment to assure it remains in good and operational condition for the useful life of the Project Equipment as set forth in the Vehicle Disposition Schedule in the "Guide to Managing Your Public Transportation Grant." All service, materials, and repairs in connection with the use and operation of the Project Equipment during its useful life shall be at the CONTRACTOR's expense The CONTRACTOR agrees to, at a minimum, service the Project Equipment and replace parts at intervals recommended in the manual provided by the manufacturer, or sooner if needed. The CONTRACTOR shall take the Project Equipment to an appropriate service and repair facility for any service and repair under the manufacturer's warranty WSDOT shall not be liable for repairs The CONTRACTOR shall retain records of all maintenance and parts replacement performed on the Project Equipment. The CONTRACTOR shall provide copies of such records to WSDOT, upon request. Section 11 General Compliance Assurance The CONTRACTOR agrees to comply with the requirements of United States and Washington State law and such instructions as WSDOT may issue to comply with the requirements of United States and Washington State Law. The CONTRACTOR agrees that, 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. It is understood by the CONTRACTOR that this assurance obligates the CONTRACTOR and any transferee of the CONTRACTOR, or said transferee's successor(s), for the useful life of the Project Equipment. Section 12 Purchases The CONTRACTOR shall make purchases of any Project Equipment pursuant to this AGREEMENT through procurement procedures approved in advance by WSDOT and consistent with the following provisions: A. Geographic Restrictions. The CONTRACTOR agrees to refrain from using any state or local geographic preference Page 3 of 10 GCA4606 B. 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 of them, 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 13 No Obligation by the State No contract between the CONTRACTOR and its subcontractors 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. Section 14 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 the nondiscrimination provisms in Chapter 49.60 RCW. Section 15 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. Section 16 Ethics 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. 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. The CONTRACTOR may set minimum rules where the financial mterest 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 subrecipients or their agents. The CONTRACTOR must fully comply with all the requirements and obhgations of Chapter 42.52 RCW, which governs 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 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: 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 may, without some restrictions on future activities, result in an unfair competitive advantage to the third party contractor or impair its objectivity in performing work under this AGREEMENT. B 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 Project Equipment and materials from any employee or officer of WSDOT. C. Employment of Former WSDOT Employees. The CONTRACTOR hereby warrants that it shall not engage on a full, 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 Page 4 of 10 GCA4606 Section 17 Accounting Records A. Project Accounts. The CONTRACTOR agrees to establish and mamtam 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. 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 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 advance Project payments it receives and record in the Project account all amounts provided in support of this AGREEMENT C. Documentation of Project Costs and Program Income. The CONTRACTOR agrees to support all 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. The CONTRACTOR also agrees to maintain accurate records of all program income derived from implementing the Project. Section 18 Audits, Inspection, and Retention of Records A. Submission of Proceedings, 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. Should an audit, enforcement, or litigation process be commenced, but not completed, during the aforementioned six (6) years 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 obtain any other audits required by WSDOT at CONTRACTOR's expense. Project closeout will not alter the CONTRACTOR's audit responsibilities. C Inspection. The CONTRACTOR agrees to permit WSDOT, and the State Auditor, or their authorized representatives, to inspect all Project work materials, payrolls, and other data, and to audit the books, records, and accounts of the CONTRACTOR and its contractors pertaining to the Project. The CONTRACTOR agrees to require each third party to permit WSDOT, the State Auditor, 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. Section 19 Labor Provisions Overtime Requirements. No CONTRACTOR or subcontractor contracting for any part of the Project work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechamc 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 forty hours in such workweek. CONTRACTOR will comply with Title 49 RCW, Labor Regulations. Section 20 Liens on Project Equipment WSDOT shall hold legal title to all vehicles the CONTRACTOR acquires or shall file a lien against any Project Equipment the CONTRACTOR modifies using the state funds identified in the "PROJECT COST" of this AGREEMENT The legal title or lien shall cover the state's percentage of funds of the disposable value of the Project Equipment and may be satisfied only by proper disposal of the Project Equipment in a manner determined by WSDOT in the "Guide to Managing Your Public Transportation Grant" Section 21 Loss or Damage to Project Equipment A. The CONTRACTOR, at its own expense, shall cover any loss, theft, damage, or destruction of the Project Equipment using either of the following methods. 1. The CONTRACTOR shall maintain comprehensive and collision insurance adequate to cover the value of the Project Equipment; the CONTRACTOR shall supply a copy of the Certificate of Insurance specifying such coverage to WSDOT, or 2. The CONTRACTOR shall provide a written certificate of self-insurance to WSDOT The CONTRACTOR will cover from its own resources the costs of repairing or replacing any Project Equipment, if it is stolen, damaged, or destroyed in any manner B If the damage to the Project Equipment does not result m a total loss, payments for damage shall be paid directly to the CONTRACTOR. The CONTRACTOR shall, within 30 days, either: 1. Devote all of the insurance proceeds received to repair the Project Equipment and place it back in service, and the CONTRACTOR shall, at its own expense, pay any portion of the cost of repair which is not covered by insurance, or Page 5 of 10 GCA4606 2. In the event the CONTRACTOR certified to self- insurance, devote all funds necessary to repair the Project Equipment and place it back into service. C. If the Project Equipment is a total loss, either by theft or damage, the insurance proceeds or equivalent shall be paid directly to WSDOT. The CONTRACTOR shall within 60 days of loss, theft, or damage, notify WSDOT that it either. 1. Intends to replace the lost Project Equipment; or 2. Does not intend to replace the lost Project Equipment If WSDOT determines that the total loss occurred under circumstances in which the CONTRACTOR fulfilled its obligations under this AGREEMENT WSDOT will, either pay or rebate to the CONTRACTOR its proportionate funds of such proceeds received. D. Coverage, if obtained or provided by the CONTRACTOR in compliance with this section, shall not be deemed as having reheved the CONTRACTOR of any liability in excess of such coverage as required by the limitation of liability section of this AGREEMENT, or otherwise. Section 22 Coordination of Special Needs Transportation It is the policy of the WSDOT to actively support coordmation of special needs transportation in the state. As a condition of assistance, the CONTRACTOR is required to participate in local transportation coordination coalitions in their service area that are sponsored by the Agency Council on Coordinated Transportation (ACCT) Section 23 State and Local Law Except when a federal statute or regulation pre-empts state or local law, no provision of this AGREEMENT shall require the CONTRACTOR to observe or enforce comphance with any provision, perform any other act, or do any other thing in contravention of state or local law. Thus if any provision or compliance with any provision of this AGREEMENT violate state or local law, or would require the CONTRACTOR to violate state or local law, the 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, terminate the Project expeditiously. Section 24 Limitation of Liability A. The CONTRACTOR shall indemnify and hold harmless WSDOT, its agents, employees, and officials harmless from 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 mdemmty provision applies to all claims against WSDOT, its agents, employees and officers arising out of, in connection with or incident to the negligent acts omissions of the CONTRACTOR, or any of it's subcontractors, its agents, employees and officers. Provided, however, that nothing herein shall require the CONTRACTOR to mdemmfy and hold harmless or defend the WSDOT, its agents, employees or officials to the extent that claims are caused by the negligent acts or onussions of the WSDOT, its agents, employees or officials. The mdemmficatron and hold harmless provision shall survive termination of this AGREEMENT. B The CONTRACTOR's relation to the WSDOT shall be at all times as an independent contractor. 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 this AGREEMENT against the other PARTY, all such fees, costs and expenses shall be recoverable by the prevailing PARTY. Section 25 Changed Conditions Affecting Performance The CONTRACTOR hereby agrees to immediately notify WSDOT of any change in conditions or law, or of any other event, which may affect its ability to perform the Project in accordance with the provisions of this AGREEMENT. Section 26 Agreement Modifications Either PARTY may request changes in these provisions. Any changes to the provisions of this AGREEMENT must be mutually agreed upon and incorporated by written amendment to this AGREEMENT. No variation or alteration of the terms of this AGREEMENT shall be valid unless made in writing and signed by the authorized representatives of the PARTIES hereto. Page 6 of 10 GCA4606 Section 27 Termination A. Termination for Convenience. WSDOT may suspend or terminate this AGREEMENT, m whole or in part, and all or any part of the financial assistance provided herein, at any time by written notice to the CONTRACTOR when it is in WSDOT's best interest or convenience for reasons including, but not limited to, the following: 1. The requisite 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 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 inunction 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 WSDOT determines that the purposes of the statute authorizing the Project would not be adequately served by the continuation of financial assistance for the Project; or 6 In the case of termination for convenience under subsections 1-5 above, WSDOT shall reimburse the CONTRACTOR for all costs payable under this AGREEMENT that the CONTRACTOR properly incurred prior to termmation. 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 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 this AGREEMENT, United States of America laws, Washington state laws, or local governmental laws under which the CONTRACTOR operates; 3 Abuses or misuses the Project Equipment, including, but not limited to. a. Failure to maintain a vehicle according to the manufacturer's standards; b Failure to repair damages or replace defective or broken parts in a timely manner; c Failure to take any action which could affect the ability of the Project Equipment to perform its designated function or takes any action which could shorten its useful life for Project use or otherwise; or d. Failure to make reasonable and appropriate use of the Project real property, facilities, or equipment. 4. Fails to make reasonable progress on the Project or other violation of this AGREEMENT that endangers substantial performance of the Project; or 5 Fails to perform in the manner called for in this AGREEMENT or fail to comply with, or are 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 (1) allow the CONTRACTOR to continue work after setting up a new delivery of perfoiivance schedule, or (2) treat the termination as a termination for convenience. C WSDOT, m its sole discretion may, in the case of a termination for breach or default, allow the CONTRACTOR ten (10) busyness days, or such longer period as determined by WSDOT, m 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 terrmnation, 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 28 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. Page 7 of 10 GCA4606 Section 29 WSDOT Advice The CONTRACTOR bears complete responsibility for the admmrstration and success of the Project as it is defined by this AGREEMENT and any amendments thereto. If the CONTRACTOR seeks advice from WSDOT on problems that may anse, the offering of WSDOT advice shall not shift the responsibihty of the CONTRACTOR for the correct adrmmstration and success of the Project, and WSDOT shall not be held liable for offering advice to the CONTRACTOR. Section 30 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 the Project Equipment or other property 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 due to damage of Project Equipment. The CONTRACTOR shall attend hearings and trials, assist in securing and giving evidence, and obtain the attendance of witnesses. Section 31 Forbearance by WSDOT Not a Waiver Any forbearance by WSDOT m 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 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 wrrtmg by the Public Transportation and Commute Options (PT&CO) Contracts and Grants Administrator, a representative of WSDOT. This decision shall be final and conclusive unless within ten (10) days from the date of receipt of its copy, the CONTRACTOR mails or otherwise furnishes a written appeal to the authorized representative of WSDOT. In connection with any such appeal, the CONTRACTOR shall be afforded an opportumty to be heard and to offer evidence m support of its position. The CONTRACTOR's appeal shall be decided in writing by the Manager of Public Transportation and Commute Options. The decision of the Manager of Public Transportation and Commute Options 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 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 'mutation 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, except as may be specifically agreed in writing. Section 33 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 PARTIES hereby accept the issuing and service of process by registered mail at the mailing address shown in the heading of this AGREEMENT under CONTRACTOR and Washington State Department of Transportation. Page 8 of 10 GCA4606 Section 34 Independent Contractor 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. Section 35 Section Headings All section headings are inserted for convenience only and shall not affect any construction or interpretation of this AGREEMENT. Section 36 Execution and Acceptance 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 37 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 38 Affect of Invalidity of Any Provision Hereof 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 39 Execution This AGREEMENT is executed by the Director, Public Transportation and Rail Division, State of Washington, Department of Transportation or the Director's designee, not as an individual incurring personal obligation and liability, but solely by, for and on behalf of the State of Washington, Department of Transportation, in the capacity as Director, Public Transportation and Rail Division, or as a designee. IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and year last written below. WASHING VI N STATE ENT OF TRANSPORTATION Date • INIGER ctor, Public Transportation and Rail Division - /b OSS Approved as to form only: By: Susan Cruise Assistant Attorney General Date: June 27, 2005 Page 9 of 10 CONTRACTOR By. Authorized Representative Print Name: 2 LZ; Print Title. e -t>1 7 Date. CITY CONTRAC f NO: Zed 5 ® `, RESOLUTION NO. GCA4606 EXHIBIT I SCOPE OF PROJECT AND BUDGET Total Project Costs State Funds $ 78,376 Contractor Funds $ - Total Cost $ 78,376 Funding by Project: 1. PROJECT A Scope of Work: Provide capital funds assistance to acquire used ADA accessible vehicles, and to make improvements to vehicles and bus stops to make them more accessible to people with special needs in the City of Yakima. Budget: Funding identified reflects Total Project Budget for 2005/2007. Funding Percentage Total Project Budget Formula Transit Special Needs Paratransit 100% $ 78,376 Contractor Funds 0% $ - Total Project Cost 100% $ 78,376 Page 10 of 10 GCA4606 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No.1 For Meeting of August 2, 2005 ITEM TITLE: Consideration of a resolution authorizing the City Manager to execute an agreement with the Washington State Department of Transportation for a Special Needs funded grant award in the amount of $156,752. under two separate equal contracts: #GCA -4511 (operating funds) and #GCA -4606 (capital funds) in the amount of $78,376 each to provide American Disability Act related services in the City of Yakima for a two-year period ending June 30, 2007. SUBMITTED BY: Ken Mehin, Transit Manager 576-6415 CONTACT PERSON/TELEPHONE: Gary Pira 576-6422 SUMMARY EXPLANATION: This is a continuance of State Special Needs (ADA) funding for the biennium July 1, 2005 to June 30, 2007 that is given to transit agencies across the State of Washington to provide and fund local projects relating to ADA issues within the Yakima Transit service area. The funding is evenly divided between two contracts (capital acquisitions and operating expenses) that will allow Yakima Transit to purchase vehicles, transit amenities such as shelters & benches and to reimburse Yakima Transit for expenditures relating to operations, including travel information services. Resolution X Ordinance Contracts GCA4511, GCA4606 Other (Specify) Funding Source: Washington State Department of Transportation (WSDOT) APPROVED FOR SUBMITTAL: ti City Manager STAFF RECOMMENDATION: Adopt the resolution. BOARD/COMMISSION RECOMMENDATION: Council Transit Committee members discussed the grant award during their July 20, 2005 session and approved forwarding this Special Needs funding award for the next biennium to full Council for adoption. COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2005-118