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03/05/2019 06C Onboard Integrated Technology System Agreement with DoubleMap 1 to\'4\lyy tbxk ik 1 • 1-:41 P p P 1 PPi ittYlltYlt.\ta. BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEM ENT Item No. 6.C. For Meeting of: March 5, 2019 ITEM TITLE: Resolution authorizing award of RFP 11810P and execution of an agreement with DoubleMap, to purchase an Onboard Integrated Technology System SUBMITTED BY: Maria Mayhue, Senior Buyer, 575-6094 SUMMARY EXPLANATION: Yakima Transit services has completed the proposal and evaluation process for selecting a contractor to provide an Onboard I ntegrated Technology System. The committee recommends DoubleMap as the selected contractor. Please see attached Cover Letter/ Recommendation of Award.Agreement Exhibits A& B are on file in the Purchasing office. ITEM BUDGETED: Yes STRATEGIC PRIORITY: Public Trust and Accountability ft' if APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt resolution. BOARD/COMMITTEE RECOMMENDATION: ATTACHMENTS: Description Upload Date Type L resolution to and 11 1 F' 2/20/2019 resolution om endation of A rd 2l /2019 r Me o 2 D 11210P Prore,[,siorol Services Agreorient 2.00/2019 ConIrdcl 3 RESOLUTION NO. R-2019- A RESOLUTION authorizing award of RFP 11810P and execution of an agreement with DoubleMap, to purchase an Onboard Integrated Technology System. WHEREAS, the City posted and published notice on October 19 and 20, 2018 in the Yakima Herald Republic and on the city's webpage that RFP No. 11810P was available for competition; and WHEREAS, Proposals were due December 10, 2018 at 11:00 a.m. and publicly opened in City Hall Council Chambers, Yakima, Washington; and WHEREAS, the following proposals were received: Connexionz Smart Transit, Valencia, CA DoubleMap, Indianapolis, IN GMV Syncromatics, Los Angeles, CA Routematch Software, Inc., Atlanta, GA TripSpark Technologies (Trapeze Software Group, Inc.), Cedar Rapids, IA; and WHEREAS, an Evaluation Committee was formed and then met on January 10, 2019 to analyze and score the five proposals using weighted criteria as specified in the RFP. Presentations by the top three scoring Proposers took place on January 23, 2019. The Evaluation Committee finalized scoring on February 6, 2019; and WHEREAS, the final combined scores for the short-listed Proposers are as follows (600 points possible): Connexionz Smart Transit, 347 points DoubleMap, 530 points TripSpark Technologies (Trapeze Software Group, Inc.) 468 points; and WHEREAS, DoubleMap received the highest overall score from the Evaluation Committee for an Onboard Integrated Technology System and the Evaluation Committee recommends Award be issued to DoubleMap and that a contract be issued to DoubleMap; and WHEREAS, the Scope of Work and available budget meet the needs and requirements of the City of Yakima for this procurement, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The Proposal is hereby awarded and the City Manager is hereby authorized to execute a five year Professional Services Agreement with DoubleMap, in the amount of$343,916 plus tax, in accordance with the Agreement, with any additional services and hardware to be billed at proposed rates. ADOPTED BY THE CITY COUNCIL this 5th day of March, 2019. Kathy Coffey, Mayor ATTEST: Sonya Clear Tee, City Clerk 4 . r n • rh,.. .•x : ng iv Purchasing ion M o To: Cliff Moore,City Manager From: Maria Mayhue,Senior Buyer Date: February 6,2019 Re: Award of RFP 11810P—Onboard Integrated Technology System for Transit We are pleased to announce the proposal and evaluation process for a selecting a contractor to provide an Onboard Integrated Technology System is complete. On December 10, 2018, Requests for Proposals were accepted from interested parties to provide the City with the specified system. Proposals were received from the following: • Connexionz Smart Transit, Valencia, CA • DoubleMap, Indianapolis, IN • GMV Syncromatics, Los Angeles, CA • Routematch Software, Inc., Atlanta, GA • TripSpark Technologies (Trapeze Software Group, Inc.), Cedar Rapids, IA An Evaluation Committee was formed with the following individuals: Agustin Ortega, Transit Operations Specialist Naeem Kara, Transit Office Assistant/Reporter Jeff Beaver, Transit Field Operations Supervisor Michael Robles, IT Services Operations Supervisor Tom Sellsted, IT Services Supervising Sr.Analyst Stephen Yu, IT Services Operations Supervisor Amber Hunter, IT Services Application Support Analyst (non-scoring) Randy Bonds Jr., IT Services Web App Developer/Admin (non-scoring) Maria Mayhue, Purchasing (non-scoring) Purchasing reviewed the Proposals for responsiveness to the RFP. All were determined to meet the minimum requirements of the RFP. Reference checks were done for all Proposers. The Evaluation Committee met on January 10,2019. Ail committee members were in attendance. The proposals were subjected to a scoring matrix, where they were judged in three different areas worth a total of 100 points. There were 6 scoring committee members, with a total of 600 points possible. Presentations by the top three scoring Proposers took place on January 23, 2019. The Analysis Committee finalized scoring on February 6, 2019, The Evaluation Committee chose DoubleMap (530 points) as the top scoring Proposer, meeting the requirements of the RFP. The committee recommends DoubleMap as the selected contractor. Please approve this Recommendation of Award, as outlined above for these services. Approved: Approved: Maxey,Alvie Trans' anager Cliff Mo , City Manager Maria S. Mayhue#575-6094 maria.mavh ua?vakim awa.Aov 5 PROFESSIONAL SERVICES AGREEMENT FOR ONBOARD INTEGRATED TECHNOLOGY SYSTEM THIS PROFESSIONAL SERVICES AGREEMENT, entered into on the date of last execution, between the City of Yakima, a Washington municipal corporation ("City"), and DoubleMap, Inc., ("Contractor"). WITNESSETH: The parties, in consideration of the terms and conditions herein, do hereby covenant and agree as follows: 1. Statement of Work The minimum services that the Contractor will provide include services described in RFP 11810P Specifications which are attached as Exhibit A hereto and incorporated herein by this reference. 2. Compensation The City agrees to pay the Contractor according to Exhibit B, attached hereto and incorporated herein, which Exhibit includes the specifications and payment schedule of itemized prices as listed in the Contractor's RFP submittal at the time and in the manner and upon the conditions provided for the Contract. 3. Contract Term The period of this Contract shall be for a period of five years from its effective date. Prices shall remain firm for the first twelve month period of the Contract. 4. Changes Any proposed change in this Contract shall be submitted to the other party, for its prior written approval. If approved, change will be made by a contract modification that will become effective upon execution by the parties hereto. Any oral statement or representation changing any of these terms or conditions is specifically unauthorized and is not valid. 5. Agency Relationship between City and Contractor Contractor shall, at all times,be an independent Contractor and not an agent or representative of City with regard to performance of the Services. Contractor shall not represent that it is, or hold itself out as, an agent or representative of City. In no event shall Contractor be authorized to enter into any agreement or undertaking for, or on, behalf of City. 6. Successors and Assigns a. Neither the City, nor the Contractor, shall assign, transfer, or encumber any rights, duties, or interests accruing from this Contract without the prior written consent of the other. b. The Contractor for himself, and for his heirs, executors, administrators, successors, and assigns, does hereby agree to the full performance of all the covenants herein contained upon the part of the Contractor. 7. Property Rights All records or papers of any sort relating to the City and to the project will at all times be the property of the City and shall be surrendered to the City upon demand. 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. 8. Inspection and Production of Records See Exhibit C-FTA 3`' Party Contract Clauses 6 9. Work Made for Hire All work the Contractor performs under this Contract shall be considered work made for hire, and shall be the property of the City. The City shall own any and all data, documents, plans, copyrights, specifications,working papers, and any other materials the Contractor produces in connection with this Contract. On completion or termination of the Contract, the Contractor shall deliver these materials to the City. 10. Guarantee Contractor warrants the Services will be free from defects in material and workmanship for a period of one year following the date of completion and acceptance of the Services. 11. Compliance with Law Contractor agrees to perform all Services under and pursuant to this Contract 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 procure and have all applicable and necessary permits, licenses and approvals of any federal,state, and local government or governmental authority or this project, pay all charges and fees, and give all notices necessary and incidental to the due and lawful execution of the work. a. Procurement of a City Business License. Contractor must procure a City of Yakima Business License and pay all charges, fees, and taxes associated with said license. b. Contractor must provide proof of a valid Washington department of Revenue state excise tax registration number, as required in Title 85 RCW. c. Contractor must provide proof of a valid Washington Unified Business Identification (UBI) number. d. Contractor must provide proof of a valid Washington Employment Security Department number as required by Title 50 RCW. e. Foreign(Non-Washington)Corporations: Although the City does not require foreign corporate proposers to qualify in the City, County or State prior to submitting a proposal, it is specifically understood and agreed that any such corporation will promptly take all necessary measures to become authorized to conduct business in the City of Yakima, at their own expense,without regard to whether such corporation is actually awarded the contract, and in the event that the award is made, prior to conducting any business in the City. 12. Nondiscrimination Provision See Exhibit C-FTA 3` Party Contract Clauses 13. Pay Transparency Nondiscrimination Provision: The Contractor will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with the contractor's legal duty to furnish information. 14. Indemnification and Hold Harmless a. Contractor shall take all necessary precautions in performing the Services to prevent injury to persons or property. Contractor agrees to defend, indemnify and hold harmless the City, its elected and appointed officials, officers, employees, attorneys, agents, and volunteers from any and all claims,demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses(including reasonable costs and attorney fees) which result or arise out of the sole negligent acts or omissions of Contractor, its officials, officers, employees or agents. 7 b. If any suit,judgment, action, claim or demand arises out of, or occurs in conjunction with,the negligent acts and/or omissions of both the Contractor and the City, or their elected or appointed officials, officers, employees, agents, attorneys or volunteers, pursuant to this Contract, each party shall be liable for its proportionate share of negligence for any resulting suit, judgment, action, claim, demand, damages or costs and expenses, including reasonable attorneys'fees. c. Contractor's Waiver of Employer's Immunity under Title 51 RCW. If any design or engineering work is done pursuant to this Contract, Contractor intends that its indemnification, defense, and hold harmless obligations set forth above in Section A shall operate with full effect regardless of any provision to the contrary in Title 51 RCW, Washington's Industrial Insurance Act. Accordingly, to the extent necessary to fully satisfy the Contractor's indemnification, defense, and hold harmless obligations set forth above in section A, Contractor specifically waives any immunity granted under Title 51 RCW, and specifically assumes all potential liability for actions brought by employees of the Contractor against the City and its elected and appointed officials,officers,employees,attorneys, agents, and volunteers. The parties have mutually negotiated this waiver. Contractor shall similarly require that its subcontractors, and anyone directly or indirectly employed or hired by Contractor, and anyone for whose acts Contractor may be liable in connection with its performance of this Agreement, shall comply with the terms of this paragraph, waive any immunity granted under Title 51 RCW, and assume all potential liability for actions brought by their respective employees. The provisions of this section shall survive the expiration or termination of this Agreement. d. Nothing contained in this Section or this Contract shall be construed to create a liability or a right of indemnification in any third party. e. The terms of this section shall survive any expiration or termination of this Contract. 15. Contractor's Liability Insurance At all times during performance of the Services and this Contract, Contractor shall secure and maintain in effect insurance to protect the City and Contractor from and against any and all claims, damages, losses, and expenses arising out of or resulting from the performance of this Contract. Contractor shall provide and maintain in force insurance in limits no less than that stated below, as applicable. The City reserves the right to require higher limits should it deem it necessary in the best interest of the public. Contractor will provide a Certificate of Insurance to the City as evidence of coverage for each of the policies and outlined herein. A copy of the additional insured endorsement attached to the policy will be included with the certificate. This Certificate of insurance shall be provided to the City, prior to commencement of work. Failure of City to demand such verification of coverage with these insurance requirements or failure of City to identify a deficiency from the insurance documentation provided shall not be construed as a waiver of Contractor's obligation to maintain such insurance" The following insurance is required: a. Commercial Liability Insurance Before this Contract is fully executed by the parties, Contractor shall provide the City with a certificate of insurance as proof of commercial liability insurance with a minimum liability limit of Two Million Dollars($2,000,000.00) per occurrence, combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) general aggregate. If Contractor carries higher coverage limits, such limits shall be shown on the Certificate of Insurance and Endorsements and the City, its elected and appointed officials, employees, agents, attorneys and volunteers shall be named as additional insureds for such higher limits. 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 Contract. The policy shall name the City of Yakima, its elected 8 and appointed officials, employees, agents, attorneys and volunteers as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City prior written notice. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide and admitted in the State of Washington. The requirements contained herein, as well as City of Yakima's review or acceptance of insurance maintained by Contractor is not intended to and shall not in any manner limit or qualify the liabilities or obligations assumed by Contractor under this contract. b. Automobile Liability Insurance Before this Contract is fully executed by the parties, Contractor shall provide the City with a certificate of insurance as proof of automobile liability insurance with a minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence. If Contractor carries higher coverage limits, such limits shall be shown on the Certificate of Insurance and Endorsements and the City, its elected and appointed officials, employees, agents, attorneys and volunteers shall be named as additional insureds for such higher limits. 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 Contract. The policy shall name the City of Yakima, its elected and appointed officials, employees, agents, attorneys and volunteers as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City prior written notice. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide and admitted in the State of Washington. The requirements contained herein, as well as City of Yakima's review or acceptance of insurance maintained by Contractor is not intended to and shall not in any manner limit or qualify the liabilities or obligations assumed by Contractor under this contract. The business auto liability shall include Hired and Non- Owned coverage if necessary. c. Employer's Liability(Stop Gap) Contractor and all subcontractor(s) shall at all times comply with all applicable workers' compensation, occupational disease, and occupational health and safety laws, statutes, and regulations to the full extent applicable, and shall maintain Employer's Liability insurance with a limit of no less than $1,000,000.00. The City shall not be held responsible in any way for claims filed by Contractor or its employees for services performed under the terms of this Contract. Contractor agrees to assume full liability for all claims arising from this Contract including claims resulting from negligent acts of all subcontractor(s). Contractor is responsible to ensure subcontractor(s) have insurance as needed. Failure of subcontractors(s)to comply with insurance requirements does not limit Contractor's liability or responsibility. Contractor's insurance coverage shall be primary insurance with respect to those who are Additional Insureds under this Contract. Any insurance,self-insurance or insurance pool coverage maintained by the City shall be in excess of the Contractor's insurance and shall not contribute to it. If at any time during the life of the Contract, or any extension, Contractor fails to maintain the required insurance in full force and effect, all work under the contract shall be discontinued immediately. Any failure to maintain the required insurance may be sufficient cause for the City to terminate the Contract. Should a court of competent jurisdiction determine that this Contract is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Contractor and the City, its officers,elected and appointed officials,employees,agents,attorneys and volunteers,Contractor's liability hereunder shall be limited to the extent of the Contractor's negligence. 16. Severability If any term or condition of this Contract or the application thereof to any person(s)or circumstances is held invalid, such invalidity shall not affect other terms,conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this Contract are declared severable. 9 17. Contract Documents This Contract,the Request for Proposals No. 11810P, Scope of Work, conditions, addenda, and modifications and Contractor's proposal (to the extent consistent with Yakima City documents) constitute the Contract Documents and are complementary. Specific Federal and State laws and the terms of this Contract, in that order respectively, supersede other inconsistent provisions. These Contract Documents are on file in the Office of the Purchasing Manager, 129 No. 2nd St.,Yakima,WA, 98901, and are hereby incorporated by reference into this Contract. 18. Termination See Exhibit C- FTA 3" Party Contract Clauses 19. Dispute Resolution See Exhibit C- FTA 3'- Party Contract Clauses 20. Re-Award When the contract is terminated by the City or the Contractor upon providing the written notice as herein required, the City/County, may re-award the contract to the next most responsible proposer within 120 days from original award. 21. Substitution The Contractor shall not substitute or deviate from said specifications of this Contract without a written amendment, signed by the City Manager, or pursuant to Section 57 below entitled"Change or Notice". Any violation of this procedure by the Contractor will be considered cause for immediate cancellation of the Contract for cause by the City. 22. Contractor Shall Furnish Except as otherwise specifically provided in this Contract, Contractor shall furnish the following in accordance with this Contract: personnel, labor and supervision; and technical, professional and other services. All such services, property and other items furnished or required to be furnished, together with all other obligations performed or required to be performed, by Contractor under this Contract are sometime collectively referred to in this Contract as the"(Services)." 23. Complementary Provisions All provisions of this Contract are intended to be complementary, and any services required by one and not mentioned in another shall be performed to the same extent as though required by all. Details of the services that are not necessary to carry out the intent of this Contract, but that are not expressly required, shall be performed or furnished by Contractor as part of the services, without any increase in the compensation otherwise payable under this Contract. 24. Invoices The City will use its best efforts to pay each of Contractor's invoices within thirty(30)days after the City's receipt and verification thereof; provided, however,that all such payments are expressly conditioned upon Contractor providing services hereunder that are satisfactory to the City. The City will notify the Contractor promptly if any problems are noted with the invoice. To insure prompt payment, each invoice should cite purchase order number, RFP number, description of item purchased, unit and total price, discount term and include the Contractor's name and return remittance address. Contractor will mail invoices to the City at the following address: City of Yakima Transit Attn: Naeem Kara 2301 Fruitvale Blvd Yakima, WA 98902 25. Prime Contractor Contractor is the Prime Contractor hereunder. The Prime Contractor shall be the sole point of contact with regard to all contractual matters arising hereunder, including the performance of services and the payment of any and all charges resulting from its contractual obligations. 10 26. 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 on such work or services. Contractor shall not (by contract, operation of law or otherwise) delegate or subcontract performance of any services to any other person or entity without the prior written consent of the City. Any such delegation or subcontracting without the City's prior written consent shall be voidable at the City's option. No delegation of subcontracting of performance of any of the services, with or without the City's prior written consent, shall relieve Contractor of its responsibility to perform the services in accordance with this Contract. Contractor shall be fully responsible for the performance, acts and omissions of Contractor's employees, Contractor's subcontractors, and any other person who performs or furnishes any services(collectively, the"Support"). Contractor shall at all times be an independent contractor and not an agent or representative of the City with regard to performance of the services. Contractor shall not represent that it is, nor hold itself out as, an agent or representative of the City. In no event shall Contractor be authorized to enter into any agreement or undertaking for or on behalf of the City. Neither the Contractor nor any employee of the Contractor is entitled to any benefits that the City provides its employees. The Contractor is solely responsible for payment of any statutory workers compensation or employer's liability insurance as required by state law. The Contractor will have an active account with the Department of Revenue, other state agencies as needed, and a separate set of books or records that reflect all items of income and expenses of the business that the Contractor is conducting. Contractor shall perform the services in a timely manner and in accordance with the standards of the profession. At the time of performance, Contractor shall be properly licensed, equipped, organized, and financed to perform the services in accordance with this Contract. Subject to compliance with the requirements of this Contract, Contractor shall perform the services in accordance with its own methods. 27. Licenses If applicable, Contractor shall have a valid and current business license per Chapter 5.02 Section 5.02.010 of the Yakima Municipal Code covering this type of business and shall satisfy all applicable City Code provisions. Said license shall be obtained prior to the award of any contract. Inquiries as to fees, etc., should be made to the Office of Code Administration, telephone (509) 575-6121. In addition, Contractors are required to be registered by the State per Chapter 18.27 of the Revised Code of Washington and their registration number must be listed on the bid/RFP/quote. Contractor shall take all reasonable precautions to protect against any bodily injury(including death) or property damage that may occur in connection with the services. 28. Removal of Subcontractor If dissatisfied with the background, performance, and/or general methodologies of any subcontractor, the City may request in writing that the subcontractor be removed. The Contractor shall comply with this request at once and shall not employ the subcontractor for any further work/services under this Contract. 29. Taxes and Assessments Contractor shall be solely responsible for and shall pay all taxes, deductions, and assessments, including but not limited to federal income tax, FICA, social security tax, assessments for unemployment and industrial injury insurance, and other deductions from income which may be required by law or assessed against either party as a result of this Contract. In the event the City is assessed a tax or assessment as a result of this Contract, Contractor shall pay the same before it becomes due. The City and its agencies are exempt from payment of all federal excise taxes and, but not sales tax (currently at 8.2%). Tax will not be considered in determining which proposal is the lowest or best, however RCW 39.30.040 allows the City to take any sales tax and B&O tax that is will receive from purchasing supplies, materials and equipment within its boundaries into consideration when determining the lowest responsible Proposer. 30. Contractor Tax Delinquency Contractors who have a delinquent Washington tax liability may have their payments offset by the State of Washington. 11 31. Inspection: Examination of Records The Contractor agrees to furnish the City with reasonable periodic reports and documents as it may request and in such form as the City requires pertaining to the work or services undertaken pursuant to this Agreement. The costs and obligations incurred or to be incurred in connection therewith, and any other matter are to be covered by this Agreement. The records relating to the services shall, at all times, be subject to inspection by and with the approval of the City, but the making of(or failure or delay in making)such inspection or approval shall not relieve Contractor of responsibility for performance of the services in accordance with this Contract, notwithstanding the City's knowledge of defective or non-complying performance, its substantiality or the ease of its discovery. Contractor shall provide the City sufficient, safe, and proper facilities and equipment for such inspection and free access to such facilities. 32. Recordkeeping and Record Retention The Contractor shall establish and maintain adequate records of all expenditures incurred under the contract. All records must be kept in accordance with generally accepted accounting procedures. All procedures must be in accordance with federal, state and local ordinances. The City shall have the right to audit, review, examine, copy, and transcribe any pertinent records or documents relating to any contract resulting from this proposal held by the Contractor. The Contractor will retain all documents applicable to the contract for a period of not less than three(3) years after final payment is made. 33. Confidential, Proprietary and Personally Identifiable Information Contractor shall not use Confidential, Proprietary or Personally Identifiable Information of City for any purpose other than the limited purposes set forth in this Contract, and all related and necessary actions taken in fulfillment of the obligations there under. Contractor shall hold all Confidential Information in confidence, and shall not disclose such Confidential Information to any persons other than those directors, officers, employees, and agents("Representatives")who have a business-related need to have access to such Confidential Information in furtherance of the limited purposes of this Contract and who have been apprised of, and agree to maintain, the confidential nature of such information in accordance with the terms of this Contract. Contractor shall institute and maintain such security procedures as are commercially reasonable to maintain the confidentiality of the Confidential Information while in its possession or control including transportation, whether physically or electronically. Contractor shall ensure that all indications of confidentiality contained on or included in any item of Confidential Information shall be reproduced by Contractor on any reproduction, modification, or translation of such Confidential Information. If requested by the City in writing, Contractor shall make a reasonable effort to add a proprietary notice or indication of confidentiality to any tangible materials within its possession that contain Confidential Information of the City, as directed. Contractor shall maintain all Confidential Information as confidential for a period of three (3)years from the date of termination of this Contract, and shall return or destroy said Confidential Information as directed by the City in writing. Contractor may disclose Confidential Information in connection with a judicial or administrative proceeding to the extent such disclosure is required under law or a court order, provided that the City shall be given prompt written notice of such proceeding if giving such notice is legally permissible. 12 34. Suspension of Work The City may suspend, in writing, all or a portion of the Service under this Agreement if unforeseen circumstances beyond the City's control are interfering with normal progress of the Service. The Contractor may suspend, in writing by certified mail, all or a portion of the Service under this Agreement if unforeseen circumstances beyond Contractor's control are interfering with normal progress of the Service. The Contractor may suspend Service on the Project in the event the City does not pay invoices when due, except where otherwise provided by this Agreement. The time for completion of the Service shall be extended by the number of days the Service is suspended. If the period of suspension exceeds ninety(90)days,the terms of this Agreement are subject to renegotiation, and both parties are granted the option to terminate the Service on the suspended portion of Project in accordance with Exhibit C-FTA 3-Party Contract Clauses—A25. 35. Provision of Services The Contractor shall provide the services set forth herein with all due skill, care, and diligence, in accordance with accepted industry practices, standards and legal requirements, and to the City's satisfaction;the City decision in that regard shall be final and conclusive. The City may inspect, observe and examine the performance of the services performed on the City premises at any time. The City may inspect, observe and examine the performance of Contractor's services at reasonable times,without notice, at any other premises. a. If the City notifies the Contractor that any part of the services rendered are inadequate or in any way differ from the Contract requirements for any reason, other than as a result of the City's default or negligence,the Contractor shall, at its own expense, reschedule and perform the services correctly within such reasonable time as the City specifies. This remedy shall be in addition to any other remedies available to the City by law or in equity. b. The Contractor shall be solely responsible for controlling the manner and means by which it and its Contracted Personnel or its subcontractors perform the services, and the Contractor shall observe, abide by, and perform all of its obligations in accordance with all legal requirements and City work rules. 36. Assignment This Contract, 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. 37. No Conflict of Interest Contractor represents that it or its employees do 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 Contract. Contractor further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Contract. 38. Contract Preservation If any provision of the Agreement, or the application of such provision, shall be rendered or declared invalid by a court of competent jurisdiction,or by reason of its requiring any steps,actions or results,the remaining parts or portions of this Agreement shall remain in full force and effect. 39. Promotional Advertising I News Releases Reference to or use of the City, any of its departments, agencies or other subunits, or any official or employee for commercial promotion is prohibited. News releases pertaining to this procurement shall not be made without prior approval of the City. Release of broadcast e-mails pertaining to this procurement shall not be made without prior written authorization of the contracting agency. 40. Time is of the Essence Timely provision of the services required under this Contract shall be of the essence of the Contract, including the provision of the services within the time agreed or on a date specified herein. 13 41. Expansion clause Any resultant contract may be further expanded by the Purchasing Manager in writing to include any other item/service normally offered by the Contractor, as long as the price of such additional products is based on the same cost/profit formula as the listed item/service. At any time during the term of this contract, other City departments may be added to this contract, if both parties agree. 42. Patent Infringement The contractor selling to the City the articles described herein guarantees the articles were manufactured or produced in accordance with applicable federal labor laws. Further,that the sale or use of the articles described herein will not infringe any United States patent. The contractor covenants that it will at its own expense defend every suit which shall be brought against the City(provided that such contractor is promptly notified of such suit, and all papers therein are delivered to it)for any alleged infringement of any patent by reason of the sale or use of such articles, and agrees that it will pay all costs, damages, and profits recoverable in any such suit. 43. Accessibility(For Software RFPs) The Contractor and subcontractor for all web site designers shall agree that information featured on its web site is accessible to all individuals, including individuals with disabilities in accordance with Section 508 of the Rehabilitation Act. Section 508 requires City of Yakima to ensure that employees with disabilities, and members of the public with disabilities seeking information or services from City of Yakima, have access to and use of information and data that is comparable to the access and use by employees, or members of the public who are not individuals with disabilities, unless an undue burden would be imposed. In all cases, the Contractor and subcontractor should incorporate provisions of the WCAG 2.0 AA as published by the World Wide Web Consortium (W3C)available at www.W3.orq/TRNVCAG. 44. Software Assurance Provide software assurance for software and firmware that includes software license keys, software download site access,digital software documentation or download site access for all software/firmware upgrades. 45. Ownership All material produced as a result of this Contract shall be the exclusive property of the City. Additionally, the City shall have unrestricted authority to reproduce, distribute, and use any submitted report, template, data, or material, and any associated documentation that is designed or developed and delivered to the Agency as part of the performance of the Contract. 46. Safety Requirements All materials, equipment, and supplies provided to the City must comply fully with all safety requirements, federal, state and local laws, ordinances, rules, regulations as set forth by the State of Washington RCW's, WAC's and all applicable OSHA Standards. 47. Warranty See Technical Specification. Section VI. Item QQ. Unless otherwise specifically stated by the Proposer, Contractor warrants that all goods and services furnished under this contract are warranted against defects by the Proposer, per the proposed warranty schedule, are new, conform strictly to the specifications herein, are merchantable, good workmanship, free from defect, are fit for the intended purpose of which such goods and services are ordinarily employed and if a particular purpose is stated in a Special/Technical Condition, the goods are then warranted as for that particular purpose. Contractor further warrants that no violation of any federal, state or local law, statute, rule, regulation, ordinance or order will result from the manufacturer, production, sale, shipment, installation or use of any other goods. Contractor's warranties (and any more favorable warranties, service policies, or similar undertaking of Contractor)shall survive delivery, inspection, and acceptance of the goods or services. 14 48. Notice of Change in Financial Condition If, during the Contract Term, the Contractor experiences a change in its financial condition that may affect its ability to perform under the Contract, or experiences a change of ownership or control,the Contractor shall immediately notify the City in writing. Failure to notify the City of such a change in financial condition or change of ownership or control shall be sufficient grounds for Contract termination. 49. Facility Security The City may prohibit entry to any secure facility, or remove from the facility, a Contract employee who does not perform his/her duties in a professional manner, or who violates the Jail's security rules and procedures. The City reserves the right to search any person, property, or article entering its facilities. 50. Waiver of Breach A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Contract shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Contract, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 51. Integration This Contract, along with the City of Yakima's RFP 11810P and the Contractor's response to the Request for Proposal("RFP"), represents the entire understanding of the City and Contractor as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein. This Contract may not be modified or altered except in writing signed by both parties. The Contractor shall comply with applicable federal, state and local laws, regulations, and executive orders, which are incorporated by reference herein. This RFP is being used by the City of Yakima Transit Division,which receives Federal funding and, therefore, must adhere to the federal regulations as described in Exhibit C. 52. Force Majeure Contractor will not be responsible for delays in delivery due to acts of God, fire, strikes, epidemics, war, riot, delay in transportation or railcar transport shortages, provided Contractor notifies the City immediately in writing of such pending or actual delay. Normally, in the event or any such delays (acts or God, etc.) the date of delivery will be extended for a period equal to the time lost due to the reason for delay. 53. Governing Law This Contract shall be governed by and construed in accordance with the laws of the State of Washington. 54. Venue The venue for any judicial action to enforce or interpret this Contract shall lie in a court of competent jurisdiction in Yakima County, Washington. 55. Authority The person executing this Contract, on behalf of Contractor, represents and warrants that he/she has been fully authorized by Contractor to execute this Contract on its behalf and to legally bind Contractor to all the terms, performances and provisions of this Contract. 15 56. Change or Notice Any alterations made to the Contract shall be rendered in writing and signed by both responsible parties; no changes without such signed documentation shall be valid. No alterations outside of the general scope and intent of the original Request for Proposals or in excess of allowable and accepted price changes shall be made. In no event shall the Contractor be paid or be entitled to payment for services that are not authorized herein or any properly executed amendment. Notice of Business Changes: Contractor shall notify the City in writing within three(3)business days of any change in ownership of the facilities of the Contractor or of the facilities of any subcontractor. The Contractor shall notify the City in writing as soon as possible, and in no event later than three (3)business days, after any decision by the Contractor to change or discontinue service that will affect services provided to the City under this Contract. The City shall have the right to renegotiate the terms and conditions of this Contract to the extent required to accommodate a change in governing law or policy that, in the sole discretion of the City, either substantially and unreasonably enlarges the Contractor's duties hereunder, or renders performance, enforcement or compliance with the totality of the Contract impossible, patently unreasonable, or unnecessary. Notices and demands under and related to this Contract shall be in writing and sent to the parties at their addresses as follows: TO CITY: AND ALSO TO: TO CONTRACTOR: Alvie Maxey Sue Ownby Ilya Rekhter, CEO Transit Manager Purchasing Manager CC:Thomas Standley, Sr. Business Development City of Yakima City of Yakima DoubleMap, Inc. 2301 Fruitvale Blvd 129 North 2nd street 429 N Pennsylvania Street, Suite 401 Yakima,WA 98901 Yakima,WA 98901 Indianapolis, IN 46204 57. Survival The foregoing sections of this Contract, 2-56 inclusive, shall survive the expiration or termination of this Contract in accordance with their terms. IN WITNESS WHEREOF, the parties hereto execute this Contract as of the day and year first above written. CITY OF YAKIMA DOUBLEMAP,INC. By: Cliff Moore, City Manager Date: Date: 2/20/19 Ilya Rekhter Attest: (Print name) City Clerk STATE OF )ss. COUNTY OF 16 EXHIBIT A-TO PROFESSIONAL SERVICES CONTRACT Final RFP 1181OP Specifications Old Addenda 17 EXHIBIT B -TO PROFESSIONAL SERVICES CONTRACT Proposer's Itemized Cost Proposal Form—(Marked as "Confidential") Contract Amount of$343,916 plus tax for five years, with any additional services and hardware to be billed at proposed rates. Capital Payment Terms: $120,370.60 Due at contract signing (35%) $189,153.80 Due at delivery of products and services (55%) $34,391.60 Due at system acceptance (10%) 18 EXHIBIT C—TO PROFESSIONAL SERVICES CONTRACT FEDERAL TRANSIT ADMINISTRATION 3RD PARTY CONTRACT CLAUSES FOR CITY OF YAKIMA RELEVANT FTA CERTIFICATIONS BUY AMERICA REQUIREMENTS The Proposer must submit to Yakima Transit the appropriate Buy America Certimetrar with:a offers on ETA-funded Cantrattm except those subject•to a general waiter. Proposals that are not accompanied by a property completed Buy Affierica Serb-heaters are subject to the provisions of 49 CFR§661-13 and may be rejected as nonresponsive, •• r ratty to Cotstracts Fifes•BuyAmenca law and regulations apply to projeas that'Awoke the purchase of MOMthan$1,50)00 of don,steel, roan • -• •••dr,Of rolling stock to be delivered to the recipient to be used rn an ETA assisted project FTA cautions that its Buy America rugMations are complex.Recipients can obtain detailed information on•ETA's Puy Ammo regulation at:The FederalTransit Adranstratiores Bury Anserica website:httmilimossatransit-dolgoviturramena FM*Down The guy America requirements flow down from ETA recipients BS subrenidents to first trot contractors_who an responsible for ensuring that lower Sr contractors end subcontractors are in compliance •- CI suggi o • e Buy Amersca regulation at 49 C.F.R. 661.13 realties reef:cation•of the BuyAmerica repulfefferits in a recipients'bid or reddest for proposal for PTA funded contracts Red Ments ran draw on the follovang language kw inclusion in their federally funded procerementa Mote that recipients are responsible for kid Uthng the minuet Buy America rectification based on what they are emu ging Recipserts should rot include both the rolling stock and steel,,ron„or manufactured prod oaks certificates in the documents unless acquiring both in the same procurement, Soy America The cantructer agrees to comply with ad US.C.gnaw arud 49 C.F.R.part 661,which provide that Federal birds may not be ablated unless all steel,wont and manufactured products used in FTA funded projects are produced in the United States,unless a poker her been granted•by FTA or the product is subject to a general walker.General wagers are Wed In 49 C.F.R.9 6617. Separate;requirements for roiling stork am set out et cri Li C-537301(21(C)and 49 CFR.6 661.11 Ilse Rudder or offeror)runt submit to Coy of Yakima the appropriate Buy America certification embed with ITS[bid or offer],Bids or offers that are not accompanied by a completed gruy Artierica oertification will be rejected as con responsive. he accordonce with 49 CAR.f 6614 for the procurentent of greet iron or mwecturedpradm-tx use the reetificetions below, getf o Comphoned Witt,Buy amenee hedurremmis The biddy or offeror hereby certifies that it war voropy rah she requirements of 49•Li.S.0 5323011,and the applicable regulations oart 661, Vote if 00 Signaart Company: DoubleMap, MTh ha Rekhter Title: CEO artificate of Non-compsace with Buy Americo Refute:nem" The Wee'or offeror hereby certifies that it cannot comply with the requirements of 49 US C 631101-but t may qualify for an •eximption to the requirement pursuant to 49 US C.532101(21 as amended,and the applicable regulations in 49 C F R.§661 7. Owe- Signature: Company: Marne: rags 19 DISADVANTAGED BUSINESS ENTERPRISE(DBE) ;tit strccessfwt Bidder/offeror shalt perm*:. The AGENCY to have aecesa es necessary records to examine information as thaAGENf,'T deems appropriate for the arum of imest abng:and determinate ompbence with Out protinslon,secioding,but not limited to,records or expenditures,Inseams,and contract bassetnthe suecessfalBidder/Offeror and other DU males entered Into doting the lie of the Contract, *The auehodted representat lsf or the?Mahal,the US.Department of Transmutation,the Comptrates General of the tutted Stakes,to inspect and audit al date and record or the COntraeter*elating to its performance under the Cisadventaged Business:Enterprde Partedwatbri prowsion cities Contract *AB date/recordist pertaining to DBE shall he maintained as stated re Seaton Smart. reference to record beeping emulrements fat the resdeet.r. Borationsfor Vlolattoos ff ateoy tine the MENU has reason to helium that the Contractor Is in violation of its obllgattors tinder this Agreement or has otherwisefaired to comply wlai terms of this . ,the AGENCY may.in addtttnn to pursuing aril other averighle Fermi rem conamece poweedings,which may inttidde het are not tutted tat the following.: *Suspension of anw aaymert ar pert due theCanfractor anal such trate as the issues concerning the Conice tore.. compliance are reseland: led. •Termination oressirceletcon of the Contract in what or in out unless the successful Contractor is able tode'nohstrate.. welt a reasonable lime that it is In e orb thirsting with She DBE tens stated herein DBE. : :FORM Ma ur-dewi Bidder/Offerer has saratted the ram resents of the ease ttaeian in the follow ig wanner(please check the ire space), ,,,, Se, lite Baderefater.is committed to a:Somme of: . 4 Der otprrehan onthistdatract. The Rtddto)Dfferer(dyeable to meet the DBE golf of%r is eanweitted ter a raindoom of ea DBE unbutton on this amtrect arid so an documentation geononntretmo good faith abuts, FAROCIPATION SCHEME ase Bidder/Offerer crud complete:the following:iritorraatioa tar all DBE'S Thit033033000 Ih the moon ctthat cemprimsthe DBE Bamboo percent state¢*In the DK Utllleatleo Rent Cea Bit :er/CIferor shell else rumish the ease and telephone number of the open canted;scree shooed the Aathcrity banana que-stions in urethan to the information furnished herein. . .. DBE'3 NTEFiCATION AND tNFORMATION FORM Masse ftererre aaa a aft *lag{ s 20 LOBBYING RESTRICTIONS AAR LOORYINg RE5114101ONS 3.1 U.&CI 1352 2 C.F.R.3 2131 450 le f.13.part 100 appendix U Of 49 tag part 20 ghetto Contents The lobbyrig requirements apply to all contracts and Stibcontracts of 5100,000 or more at any tier under a.Federal grant if any funds other than Federal appropriated funds has been paid or will be paid to any person For influencing or attempting to influence an officer or employee of any agency,a Member of Congress,an officer or employee of Congress,or an employee of a Member of (ongress it COTInectien with this agreement the payer must complete and submit the Standard In ra LU,fDisclosure Form to Report toabiying"it,accordance with it instructions. gnaws The lobby tag requirements mandate the maximum flow down puissant to Byrd Anti-Lobbying Amendment,31 U.S.C. 135.21S5), I Claseaanguage 49 CF*R.part 20,Appendices A and a provide specific ianguage for inclusion in ETA funded third party CO tam as follows: Mg Restrictions flre: t :4igi'ed kettles,to ilte test or Ss OT her lomat edge belief,Mac ls Rio federal appropriated fonds have been paid or will be paid,by or on behalf of the•undersigned,to any person for influencing or attempting to influence an officer or employee of an agency,a Member of Congress,an officer or employee of Congress*or an eitiployewi of a Member of Congress in collileCtS1 with the awarding Saint Federal contract the•waking of any federal grant,the making of any Federal loan,the entering into of any cooperative agreement,and the extension,cortnuates renewal,amendment or modification of any Federal contract,grant,loan,or cooperative agreement, 2.1f any folds other then federal appropriated fu nds have been paid QC will be paid to any person'or influerung or attempting to influence an officer or employee of any agency;.a Member or Congress,an officer or employee of Congress.or an employee of a Member at Congress in connection wail this Federal contract,grant,loan,or cooperative agreemests the undersigned shall comp/ateand submit Standard Fos-US wffisclosede Form to Report Lobbying;in accordance with its instructions. 3.The undersigned AS require that•the language of Ibis certification be Included m the award•documents for all subsawards at all tiers fincludeng sit ittordracts,sutegrants,and contracts tinder grants,loans and cooperative agreements)and that all subreciplents shall certify and disclose accordingly, this nertifcation is a material representation effect upon which reliancewas placed when this transaction was made or entered intl.Submission of this•certification is a prerequisite for making or entering Into this transaction imposed by section 1352,title 31, US Code Any person who faits to file the required certification shall be subject to a civil penalty of not less than$102100 and not more Re 000 for each such failure, se Signature of Contractor's Authorized Official fS,„Rekhter,CEO Name and Title of Contractor's Authorised Official ot Date 21 FEDERAL TRANSIT ADMINISTRATION 3RD PARTY CONTRACT CLAUSES FOR CITY OF YAKIMA Appendix A.Federally Required and Other Model Contract Clauses A.1 ACCESS TO RECORDS AND REPORTS A.2 BONDING REQUIREMENTS -(Not Applicable) A.3 BUS TESTING (Not Applicable) A.4 BUY AMERICA REQUIREMENTS A.5 CARGO PREFERENCE REQUIREMENTS A.6 CHARTER SERVICE (Not Applicable) A.7 CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT A.8 CIVIL RIGHTS LAWS AND REGULATIONS A.9 DISADVANTAGED BUSINESS ENTERPRISE(DBE) A.10 EMPLOYEE PROTECTIONS A.11 ENERGY CONSERVATION A.12 FLY AMERICA A.13 GOVERNMENT-WIDE DEBARMENT AND SUSPENSION A.14 LOBBYING RESTRICTIONS A.15 NO GOVERNMENT OBLIGATION TO THIRD PARTIES A.16 PATENT RICHTS AND RICHTS IN DATA (Not Applicable) A.17 PRE AWARD AND POST DELIVERY AUDITS OF ROLLING STOCK PURCHASES(Not Applicable) A.18 PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS A.19 PUBLIC TRANSPORTATION EMPLOYEE PROTECTIVE ARRANGEMENTS (Not Applicable) A.20 RECYCLED PRODUCTS A.21 SAFE OPERATION OF MOTOR VEHICLES A.22 SCHOOL BUS OPERATIONS (Not Applicable) A.23 SEISMIC SAFETY (Not Applicable) A.2/I SUBSTANCE ABUSE REQUIREMENTS (Not Applicable) A.25 TERMINATION A.26 VIOLATION AND BREACH OF CONTRACT 22 A.1 ACCESS TO RECORDS AND REPORTS 49 U.S.C. §5325(g) 2 C.F.R. § 200.333 49 C.F.R. part 633 Applicability to Contracts The record keeping and access requirements apply to all contracts funded in whole or in part with FTA funds. Under 49 U.S.C. §5325(g), FTA has the right to examine and inspect all records,documents,and papers, including contracts, related to any FTA project financed with Federal assistance authorized by 49 U.S.C.Chapter 53. Flow Down The record keeping and access requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier. Model Clause/Language There is no required language for record keeping and access requirements. Recipients can draw on the following language for inclusion in their federally funded procurements. Access to Records and Reports a. Record Retention.The Contractor will retain,and will require its subcontractors of all tiers to retain,complete and readily accessible records related in whole or in part to the contract, including, but not limited to,data, documents, reports,statistics, sub-agreements, leases,subcontracts,arrangements,other third party agreements of any type,and supporting materials related to those records. b. Retention Period.The Contractor agrees to comply with the record retention requirements in accordance with 2 C.F.R. § 200.333.The Contractor shall maintain all books, records,accounts and reports required under this Contract for a period of at not less than three(3)years after the date of termination or expiration of this Contract, except in the event of litigation or settlement of claims arising from the performance of this Contract, in which case records shall be maintained until the disposition of all such litigation,appeals, claims or exceptions related thereto. c.Access to Records.The Contractor agrees to provide sufficient access to FTA and its contractors to inspect and audit records and information related to performance of this contract as reasonably may be required. d.Access to the Sites of Performance.The Contractor agrees to permit FTA and its contractors access to the sites of performance under this contract as reasonably may be required. A.4 BUY AMERICA REQUIREMENTS 49 U.S.C.5323(j) 49 C.F.R. part 661 BUY AMERICA CERTIFICATION Contractor agrees to comply with 49 USC§ 5323(j)and 49 CFR Part 661,which provide that federal funds may not be obligated unless steel,iron and manufactured products used in FTA-funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver.General waivers are listed in 49 CFR § 661.7. A general public interest waiver from the Buy America requirements applies to microprocessors, computers, microcomputers, software or other such devices, which are used solely for the purpose of processing or storing data. This general waiver does not extend to a product or device that merely contains a microprocessor or microcomputer and is not used solely for the purpose of processing or storing data. 23 Separate requirements for rolling stock are set out at 49 USC § 5323(j)(2)(C) and 49 CFR § 661.11. Rolling stock must be assembled in the United States and have a 60 percent domestic content. The Proposer must submit to Yakima Transit the appropriate Buy America Certification with all offers on FTA- funded contracts, except those subject to a general waiver. Proposals that are not accompanied by a properly completed Buy America certification are subject to the provisions of 49 CFR § 661.13 and may be rejected as nonresponsive. Applicability to Contracts FTA's Buy America law and regulations apply to projects that involve the purchase of more than$150,000 of iron,steel, manufactured goods,or rolling stock to be delivered to the recipient to be used in an FTA assisted project. FTA cautions that its Buy America regulations are complex. Recipients can obtain detailed information on FTA's Buy America regulation at:The Federal Transit Administration's Buy America website: https://www.transit.dot.govjbuyamerica Flow Down The Buy America requirements flow down from FTA recipients and subrecipients to first tier contractors,who are responsible for ensuring that lower tier contractors and subcontractors are in compliance. Model Clause/Language The Buy America regulation at 49 C.F.R. §661.13 requires notification of the Buy America requirements in a recipients' bid or request for proposal for FTA funded contracts. Recipients can draw on the following language for inclusion in their federally funded procurements. Note that recipients are responsible for including the correct Buy America certification based on what they are acquiring. Recipients should not include both the rolling stock and steel, iron,or manufactured products certificates in the documents unless acquiring both in the same procurement. Buy America The contractor agrees to comply with 49 U.S.C. 5323(j)and 49 C.F.R. part 661, which provide that Federal funds may not be obligated unless all steel, iron, and manufactured products used in FTA funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. §661.7. Separate requirements for rolling stock are set out at 49 U.S.C.5323(j)(2)(C)and 49 C.F.R. §661.11. The [bidder or offeror] must submit to City of Yakima the appropriate Buy America certification below with its [bid or offer]. Bids or offers that are not accompanied by a completed Buy America certification will be rejected as nonresponsive. In accordance with 49 C.F.R.§661.6,for the procurement of steel,iron or manufactured products, use the certifications below. Certificate of Compliance with Buy America Requirements The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C.5323(j)(1),and the applicable regulations in 49 C.F.R. part 661. Date: Signature: Company: Name: Title: Certificate of Non-Compliance with Buy America Requirements The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 U.S.C.5323(j), but it may qualify for an exception to the requirement pursuant to 49 U.S.C. 5323(j)(2),as amended,and the applicable regulations in 49 C.F.R. §661.7. 24 Date: Signature: Company: Name: Title: A.5 CARGO PREFERENCE REQUIREMENTS 46 U.S.C. §55305 46 C.F.R. part 381 Applicability to Contracts The Cargo Preference Act of 1954 requirements applies to all contracts involving equipment, materials,or commodities that may be transported by ocean vessels. Flow Down The Cargo Preference requirements apply to all contracts involved with the transport of equipment, material,or commodities by ocean vessel. Model Clause/Language The Maritime Administration (MARAD) regulations at 46 C.F.R. §381.7 contain suggested contract clauses. Recipients can draw on the following language for inclusion in their federally funded procurements. Cargo Preference-Use of United States-Flag Vessels The contractor agrees: a.to use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners,and tankers) involved,whenever shipping any equipment, material,or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels; b.to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, "on-board"commercial ocean bill-of-lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo,Office of Market Development, Maritime Administration,Washington, DC 20590 and to the FTA recipient (through the contractor in the case of a subcontractor's bill-of-lading.);and c.to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel. A.7 CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT 42 U.S.C. §§7401—7671q 33 U.S.C. §§ 1251-1387 2 C.F.R. part 200,Appendix II (G) Applicability to Contracts The Clean Air and Clean Water Act requirements apply to each contract and subcontract exceeding$150,000. Each contract and subcontract must contain a provision that requires the recipient to agree to comply with all applicable standards, 25 orders or regulations issued pursuant to the Clean Air Act (42 U.S.C.7401-7671q)and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251-1387).Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency(EPA). Flow Down The Clean Air Act and Federal Water Pollution Control Act requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier. Model Clause/Language Recipients can draw on the following language for inclusion in their federally funded procurements. The Contractor agrees: 1) It will not use any violating facilities; 2) It will report the use of facilities placed on or likely to be placed on the U.S. EPA"List of Violating Facilities;" 3) It will report violations of use of prohibited facilities to FTA; and 4) It will comply with the inspection and other requirements of the Clean Air Act,as amended, (42 U.S.C. §§7401—7671q); and the Federal Water Pollution Control Act as amended, (33 U.S.C. §§ 1251-1387). A.8 CIVIL RIGHTS LAWS AND REGULATIONS Applicability to Contracts The following Federal Civil Rights laws and regulations apply to all contracts. 1. Federal Equal Employment Opportunity(EEO)Requirements.These include, but are not limited to: a. Nondiscrimination in Federal Public Transportation Programs.49 U.S.C. §5332,covering projects, programs,and activities financed under 49 U.S.C.Chapter 53, prohibits discrimination on the basis of race,color, religion, national origin,sex (including sexual orientation and gender identity),disability,or age,and prohibits discrimination in employment or business opportunity. b. Prohibition against Employment Discrimination.Title VII of the Civil Rights Act of 1964,as amended, 42 U.S.C. § 2000e,and Executive Order No. 11246, "Equal Employment Opportunity,"September 24, 1965,as amended, prohibit discrimination in employment on the basis of race, color, religion,sex,or national origin. 2. Nondiscrimination on the Basis of Sex.Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681 et seq. and implementing Federal regulations, "Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,"49 C.F.R. part 25 prohibit discrimination on the basis of sex. 3. Nondiscrimination on the Basis of Age.The"Age Discrimination Act of 1975,"as amended,42 U.S.C. §6101 et seq.,and Department of Health and Human Services implementing regulations, "Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,"45 C.F.R. part 90, prohibit discrimination by participants in federally assisted programs against individuals on the basis of age.The Age Discrimination in Employment Act (ADEA), 29 U.S.C. §621 et seq., and Equal Employment Opportunity Commission (EEOC)implementing regulations, "Age Discrimination in Employment Act," 29 C.F.R. part 1625,also prohibit employment discrimination against individuals age 40 and over on the basis of age. 4. Federal Protections for Individuals with Disabilities.The Americans with Disabilities Act of 1990,as amended (ADA),42 U.S.C. § 12101 et seq., prohibits discrimination against qualified individuals with disabilities in programs,activities,and services, and imposes specific requirements on public and private entities.Third party contractors must comply with their responsibilities under Titles I, II, Ill, IV,and V of the ADA in employment, public services, public accommodations, telecommunications,and other provisions, many of which are subject to regulations issued by other Federal agencies. 26 Flow Down The Civil Rights requirements flow down to all third party contractors and their contracts at every tier. Model Clause/Language Every federally funded contract must include an Equal Opportunity clause. Recipients can draw on the following language for inclusion in their federally funded procurements. Civil Rights and Equal Opportunity The AGENCY is an Equal Opportunity Employer. As such,the AGENCY agrees to comply with all applicable Federal civil rights laws and implementing regulations. Apart from inconsistent requirements imposed by Federal laws or regulations,the AGENCY agrees to comply with the requirements of 49 U.S.C. §5323(h)(3)by not using any Federal assistance awarded by FTA to support procurements using exclusionary or discriminatory specifications. Under this Agreement,the Contractor shall at all times comply with the following requirements and shall include these requirements in each subcontract entered into as part thereof. 1. Nondiscrimination. In accordance with 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, religion, national origin, sex, disability,or age. In addition,the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. 2. Race,Color,Religion,National Origin,Sex. In accordance with Title VII of the Civil Rights Act, as amended,42 U.S.C. § 2000e et seq., 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. chapter 60,and Executive Order No. 11246, "Equal Employment Opportunity in Federal Employment,"September 24, 1965,42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note.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, religion, national origin,or sex(including sexual orientation and gender identity). Such action shall include, but not be limited to,the following: employment, promotion,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. 3.Age. In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§621-634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, "Age Discrimination in Employment Act," 29 C.F.R. part 1625,the Age Discrimination Act of 1975, as amended,42 U.S.C. §6101 et seq., U.S. Health and Human Services regulations, "Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,"45 C.F.R. part 90, 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. 4. Disabilities. In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §794,the Americans with Disabilities Act of 1990,as amended, 42 U.S.C. § 12101 et seq.,the Architectural Barriers Act of 1968,as amended, 42 U.S.C. §4151 et seq., and Federal transit law at 49 U.S.C. § 5332,the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition,the Contractor agrees to comply with any implementing requirements FTA may issue. 27 A.9 DISADVANTAGED BUSINESS ENTERPRISE(DBE) 49 C.F.R. part 26 Background and Applicability The Disadvantaged Business Enterprise(DBE) program applies to FTA recipients receiving planning, capital and/or operating assistance that will award prime contracts(excluding transit vehicle purchases)exceeding$250,000 in FTA funds in a Federal fiscal year.All FTA recipients above this threshold must submit a DBE program and overall triennial goal for DBE participation.The overall goal reflects the anticipated amount of DBE participation on DOT-assisted contracts.As part of its DBE program, FTA recipients must require that each transit vehicle manufacturer(TVM),as a condition of being authorized to bid or propose on FTA assisted transit vehicle procurements,certify that it has complied with the requirements of 49 C.F.R. § 26.49.Only those transit vehicle manufacturers listed on FTA's certified list of Transit Vehicle Manufacturers,or that have submitted a goal methodology to FTA that has been approved or has not been disapproved at the time of solicitation,are eligible to bid. FTA recipients must meet the maximum feasible portion of their overall goal using race-neutral methods.Where appropriate, however, recipients are responsible for establishing DBE contract goals on individual DOT-assisted contracts. FTA recipients may use contract goals only on those DOT-assisted contracts that have subcontracting responsibilities.See 49 C.F.R. § 26.51(e). Furthermore,while FTA recipients are not required to set a contract goal on every DOT-assisted contract,they are responsible for achieving their overall program goals by administering their DBE program in good faith. FTA recipients and third party contractors can obtain information about the DBE program at the following website locations: Federal Transit Administration website Disadvantaged Business Enterprise page click here: https:j/www.transit.dot.govjdbe Department of Transportation website Disadvantaged Business Enterprise Program click here: https://www.tra nsportati on.gov/ci vi I-rights/disadvantaged-business-enterprise Flow Down The DBE contracting requirements flow down to all third party contractors and their contracts at every tier. It is the recipient's and prime contractor's responsibility to ensure the DBE requirements are applied across the board to all subrecipients/contractors/subcontractors. Should a subcontractor fail to comply with the DBE regulations, FTA would look to the recipient to make sure it intervenes to monitor compliance.The onus for compliance is on the recipient. Clause Language For all DOT-assisted contracts,each FTA recipient must include assurances that third party contractors will comply with the DBE program requirements of 49 C.F.R. part 26,when applicable.The following contract clause is required in all DOT- assisted prime and subcontracts: The contractor,subrecipient or subcontractor 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 C.F.R. part 26 in the award and administration of DOT-assisted contracts. 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 the recipient deems appropriate, which may include, but is not limited to: 1. Withholding monthly progress payments; 2. Assessing sanctions; 3. Liquidated damages; and/or 4. Disqualifying the contractor from future bidding as non-responsible. 49 C.F.R. § 26.13(b). Further, recipients must establish a contract clause to require prime contractors to pay subcontractors for satisfactory performance of their contracts no later than 30 days from receipt of each payment the recipient makes to the prime 28 contractor.49 C.F.R. § 26.29(a). Finally,for contracts with defined DBE contract goals,each FTA recipient must include in each prime contract a provision stating that the contractor shall utilize the specific DBEs listed unless the contractor obtains the recipient's written consent; and that, unless the recipient's consent is provided,the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE.49 C.F.R. § 26.53(f) (1). As an additional resource, recipients can draw on the following language for inclusion in their federally funded procurements. Overview It is the policy of the AGENCY and the United States Department of Transportation ("DOT")that Disadvantaged Business Enterprises("DBE's"),as defined herein and in the Federal regulations published at 49 C.F.R. part 26,shall have an equal opportunity to participate in DOT-assisted contracts. It is also the policy of the AGENCY to: 1. Ensure nondiscrimination in the award and administration of DOT-assisted contracts; 2.Create a level playing field on which DBE's can compete fairly for DOT-assisted contracts; 3. Ensure that the DBE program is narrowly tailored in accordance with applicable law; 4. Ensure that only firms that fully meet 49 C.F.R. part 26 eligibility standards are permitted to participate as DBE's; 5. Help remove barriers to the participation of DBEs in DOT assisted contracts; 6.To promote the use of DBEs in all types of federally assisted contracts and procurement activities; and 7.Assist in the development of firms that can compete successfully in the marketplace outside the DBE program. This Contract is subject to 49 C.F.R. part 26.Therefore,the Contractor must satisfy the requirements for DBE participation as set forth herein.These requirements are in addition to all other equal opportunity employment requirements of this Contract.The AGENCY shall make all determinations with regard to whether or not a Bidder/Offeror is in compliance with the requirements stated herein. In assessing compliance,the AGENCY may consider during its review of the Bidder/Offeror's submission package,the Bidder/Offeror's documented history of non-compliance with DBE requirements on previous contracts with the AGENCY. Contract Assurance The Contractor,subrecipient or subcontractor 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 C.F.R. part 26 in the award and administration of DOT-assisted contracts. 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 the AGENCY deems appropriate. DBE Participation For the purpose of this Contract,the AGENCY will accept only DBE's who are: 1.Certified, at the time of bid opening or proposal evaluation, by the[certifying agency or the Unified Certification Program (UCP)]; or 2.An out-of-state firm who has been certified by either a local government,state government or Federal government entity authorized to certify DBE status or an agency whose DBE certification process has received FTA approval; or 3.Certified by another agency approved by the AGENCY. 29 DBE Participation Goal The DBE participation goal for this Contract is set at%.This goal represents those elements of work under this Contract performed by qualified Disadvantaged Business Enterprises for amounts totaling not less than 0%of the total Contract price. Failure to meet the stated goal at the time of proposal submission may render the Bidder/Offeror non-responsive. Proposed Submission Each Bidder/Offeror,as part of its submission,shall supply the following information: 1.A completed DBE Utilization Form (see below)that indicates the percentage and dollar value of the total bid/contract amount to be supplied by Disadvantaged Business Enterprises under this Contract. 2.A list of those qualified DBE's with whom the Bidder/Offeror intends to contract for the performance of portions of the work under the Contract,the agreed price to be paid to each DBE for work,the Contract items or parts to be performed by each DBE,a proposed timetable for the performance or delivery of the Contract item,and other information as required by the DBE Participation Schedule(see below). No work shall be included in the Schedule that the Bidder/Offeror has reason to believe the listed DBE will subcontract,at any tier,to other than another DBE. If awarded the Contract,the Bidder/Offeror may not deviate from the DBE Participation Schedule submitted in response to the bid.Any subsequent changes and/or substitutions of DBE firms will require review and written approval by the AGENCY. 3.An original DBE Letter of Intent (see below)from each DBE listed in the DBE Participation Schedule. 4.An original DBE Affidavit (see below)from each DBE stating that there has not been any change in its status since the date of its last certification. Good Faith Efforts If the Bidder/Offeror is unable to meet the goal set forth above(DBE Participation Goal),the AGENCY will consider the Bidder/Offeror's documented good faith efforts to meet the goal in determining responsiveness.The types of actions that the AGENCY will consider as part of the Bidder/Offeror's good faith efforts include, but are not limited to,the following: 1. Documented communication with the AGENCY's DBE Coordinator(questions of IFB or RFP requirements, subcontracting opportunities,appropriate certification,will be addressed in a timely fashion); 2. Pre-bid meeting attendance.At the pre-bid meeting,the AGENCY generally informs potential Bidder/Offeror's of DBE subcontracting opportunities; 3.The Bidder/Offeror's own solicitations to obtain DBE involvement in general circulation media,trade association publication, minority-focus media and other reasonable and available means within sufficient time to allow DBEs to respond to the solicitation; 4.Written notification to DBE's encouraging participation in the proposed Contract; and 5. Efforts made to identify specific portions of the work that might be performed by DBE's. The Bidder/Offeror shall provide the following details,at a minimum,of the specific efforts it made to negotiate in good faith with DBE's for elements of the Contract: 1.The names,addresses,and telephone numbers of DBE's that were contacted; 2.A description of the information provided to targeted DBE's regarding the specifications and bid proposals for portions of the work; 3. Efforts made to assist DBE's contacted in obtaining bonding or insurance required by the Bidder or the Authority. 30 Further,the documentation of good faith efforts must include copies of each DBE and non-DBE subcontractor quote submitted when a non-DBE subcontractor was selected over a DBE for work on the contract. 49 C.F.R. § 26.53(b) (2)(VI). In determining whether a Bidder has made good faith efforts,the Authority may take into account the performance of other Bidders in meeting the Contract goals. For example, if the apparent successful Bidder failed to meet the goal, but meets or exceeds the average DBE participation obtained by other Bidders,the Authority may view this as evidence of the Bidder having made good faith efforts. Administrative Reconsideration Within five (5)business days of being informed by the AGENCY that it is not responsive or responsible because it has not documented sufficient good faith efforts,the Bidder/Offeror may request administrative reconsideration.The Bidder should make this request in writing to the AGENCY's [Contact Name].The [Contact Name]will forward the Bidder/Offeror's request to a reconsideration official who will not have played any role in the original determination that the Bidder/Offeror did not document sufficient good faith efforts. As part of this reconsideration,the Bidder/Offeror will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so.The Bidder/Offeror will have the opportunity to meet in person with the assigned reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so.The AGENCY will send the Bidder/Offeror a written decision on its reconsideration,explaining the basis for finding that the Bidder/Offeror did or did not meet the goal or make adequate good faith efforts to do so.The result of the reconsideration process is not administratively appealable to the Department of Transportation. Termination of DBE Subcontractor The Contractor shall not terminate the DBE subcontractor(s) listed in the DBE Participation Schedule (see below)without the AGENCY's prior written consent.The AGENCY may provide such written consent only if the Contractor has good cause to terminate the DBE firm. Before transmitting a request to terminate,the Contractor shall give notice in writing to the DBE subcontractor of its intent to terminate and the reason for the request.The Contractor shall give the DBE five days to respond to the notice and advise of the reasons why it objects to the proposed termination.When a DBE subcontractor is terminated or fails to complete its work on the Contract for any reason,the Contractor shall make good faith efforts to find another DBE subcontractor to substitute for the original DBE and immediately notify the AGENCY in writing of its efforts to replace the original DBE.These good faith efforts shall be directed at finding another DBE to perform at least the same amount of work under the Contract as the DBE that was terminated,to the extent needed to meet the Contract goal established for this procurement. Failure to comply with these requirements will be in accordance with Section 8 below (Sanctions for Violations). Continued Compliance The AGENCY shall monitor the Contractor's DBE compliance during the life of the Contract. In the event this procurement exceeds ninety(90)days,it will be the responsibility of the Contractor to submit quarterly written reports to the AGENCY that summarize the total DBE value for this Contract.These reports shall provide the following details: • DBE utilization established for the Contract; •Total value of expenditures with DBE firms for the quarter; •The value of expenditures with each DBE firm for the quarter by race and gender; •Total value of expenditures with DBE firms from inception of the Contract; and •The value of expenditures with each DBE firm from the inception of the Contract by race and gender. Reports and other correspondence must be submitted to the DBE Coordinator with copies provided to the [Agency Namel] and [Agency Name2]. Reports shall continue to be submitted quarterly until final payment is issued or until DBE participation is completed. 31 The successful Bidder/Offeror shall permit • The AGENCYto have accessto necessary recordsto examine information asthe AGENCY deemsappropbate for the purpose of investigating and determining compliance with this provision including, but not limited to, records of expenditures, invoices and contract between the successful Bidder/Offeror and other DBE parties entered into during the life of the Contract. • The authobzed representative's) of the AGENCY,the US. 0 t of Transportation,the Comptroller General of the United States,to inspect and audit all data and Department of the Contractor relating to its performance undehe Disadvantaged Business Enterprise Participation provision of this Contract • All data/recordis) pertaining to DBE shall be maintained as Sectionstated in [insert reference to record keeping requirements for the Project.) Sanctions for Violations I at any time the AGENCY hasreasonto believe that the Contractor's in violation of its obligations underthisAgreement or has otherwise failed to comply with terms of this Section, the AGENCY may, in addition to pursuing any other available legal remedy, commence proceedings,which may include but are not limited to the following: • Suspension of any payment or part due the Contractor until such time as the issues concerning the Contractors compliance are resolved; and • n of the Contract, in whole orin part, unlessthe successful Contractor's able to demonstrate wihin a cancellation etime that It is in compliance with the DBE terms stated herein. TheUTIUZATON FORM undersignedEi idder/Offeror has satisfied the requirements of the solicitation in the following manner(please check the appropriatespace) TeB dder/Offer is committed to a minimum of 0% DBE utilization on this contract. _____The Bidder/Offeror Of unable to meet the DBE goal of%) is committed to a minimum ofO%DBE utilization on this contract and submits documentation demonstrating good faith efforts BE T Bidder/Offeror shall The EDULE complete the following information for all DBEs participating in the contract thatcompbsesthe DBE Utilization percent stated in the DBE Utilization form. The Bidder/Offeror shall also furnish the name and telephone number of the appropriate contact person should the Authority have any questions in relation to the information furnished herein. OBE IDENTIFICATIONAND INFORMATION FORM N.me vat AAatt !m)d4ktc Osctt4Mok Xsn anF' and TNrydrane XaMxx Pwvtue4Wtf Of WSunni 32 A.10 EMPLOYEE PROTECTIONS 49 U.S.C. §5333(a) 40 U.S.C. §§3141—3148 29 C.F.R. part 5 18 U.S.C. §874 29 C.F.R. part 3 40 U.S.C. §§3701-3708 29 C.F.R. part 1926 Applicability to Contracts Certain employee protections apply to all FTA funded contracts with particular emphasis on construction related projects.The recipient will ensure that each third party contractor complies with all federal laws, regulations,and requirements, including: 1. Prevailing Wage Requirements(Deleted -Prevailing Wage does not apply to this contract) 2. "Anti-Kickback" Prohibitions a. Section 1 of the Copeland "Anti-Kickback"Act,as amended, 18 U.S.C. §874; b.Section 2 of the Copeland "Anti-Kickback"Act,as amended, 40 U.S.C. §3145;and c. U.S. DOL regulations, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in part by Loans or Grants from the United States," 29 C.F.R. part 3. 3.Contract Work Hours and Safety Standards a. Contract Work Hours and Safety Standards Act,as amended,40 U.S.C. §§3701-3708;and supplemented by Department of Labor(DOL)regulations, 29 C.F.R. part 5;and 4. U.S. DOL regulations, "Safety and Health Regulations for Construction," 29 C.F.R. part 1926. Flow Down These requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier.The Davis-Bacon Act and the Copeland "Anti-Kickback"Act apply to all prime construction,alteration or repair contracts in excess of$2,000.The Contract Work Hours and Safety Standards Act apply to all FTA funded contracts in excess of$100,000 that involve the employment of mechanics or laborers. Model Clause/Language The recipient must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. In addition, recipients can draw on the following language for inclusion in their federally funded procurements. Prevailing Wage and Anti-Kickback(Deleted -Prevailing Wage does not apply to this contract) Contract Work Hours and Safety Standards For all contracts in excess of$100,000 that involve the employment of mechanics or laborers,the Contractor shall comply with the Contract Work Hours and Safety Standards Act(40 U.S.C. §§3701-3708),as supplemented by the DOL regulations at 29 C.F.R. part 5. Under 40 U.S.C. §3702 of the Act,the Contractor shall compute the wages of every mechanic and laborer, including watchmen and guards,on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. 33 The requirements of 40 U.S.C. §3704 are applicable to construction work and provide that no laborer or mechanic be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchase of supplies or materials or articles ordinarily available on the open market,or to contracts for transportation or transmission of intelligence. In the event of any violation of the clause set forth herein,the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition,the Contractor and subcontractor shall be liable to the United States(in the case of work done under contract for the District of Columbia or a territory,to such District or to such territory),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 this clause in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by this clause. The FTA 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 this section. The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in this agreement. Contract Work Hours and Safety Standards for Awards Not Involving Construction The Contractor shall comply with all federal laws, regulations,and requirements providing wage and hour protections for non-construction employees, in accordance with 40 U.S.C. §3702,Contract Work Hours and Safety Standards Act,and other relevant parts of that Act,40 U.S.C. §3701 et seq.,and U.S. DOL regulations, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Non-construction Contracts Subject to the Contract Work Hours and Safety Standards Act),"29 C.F.R. part 5. The Contractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three (3)years from the completion of the contract for all laborers and mechanics, including guards and watchmen,working on the contract. Such records shall contain the name and address of each such employee,social security number,correct classifications, hourly rates of wages paid,daily and weekly number of hours worked,deductions made,and actual wages paid. Such records maintained under this paragraph shall be made available by the Contractor for inspection,copying,or transcription by authorized representatives of the FTA and the Department of Labor,and the Contractor will permit such representatives to interview employees during working hours on the job. The contractor shall require the inclusion of the language of this clause within subcontracts of all tiers. 34 A.11 ENERGY CONSERVATION 42 U.S.C.6321 etseq. 49 C.F.R. part 622,subpart C Applicability to Contracts The Energy Policy and Conservation requirements are applicable to all contracts. The Recipient agrees to,and assures that its subrecipients, if any,will comply with the mandatory energy standards and policies of its state energy conservation plans under the Energy Policy and Conservation Act,as amended,42 U.S.C. §6201 et seq., and perform an energy assessment for any building constructed, reconstructed, or modified with federal assistance as required under FTA regulations, "Requirements for Energy Assessments,"49 C.F.R. part 622,subpart C. Flow Down These requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier. Model Clause/Language No specific clause is recommended in the regulations because the Energy Conservation requirements are so dependent on the state energy conservation plan. Recipients can draw on the following language for inclusion in their federally funded procurements. 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. A.12 FLY AMERICA 49 U.S.C. §40118 41 C.F.R. part 301-10 48 C.F.R. part 47.4 Applicability to Contracts The Fly America requirements apply to the transportation of persons or property, by air, between a place in the U.S. and a place outside the U.S.,or between places outside the U.S.,when the FTA will participate in the costs of such air transportation.Transportation on a foreign air carrier is permissible when provided by a foreign air carrier under a code share agreement when the ticket identifies the U.S.air carrier's designator code and flight number. Transportation by a foreign air carrier is also permissible if there is a bilateral or multilateral air transportation agreement to which the U.S.Government and a foreign government are parties and which the U.S. DOT has determined meets the requirements of the Fly America Act. Flow Down Requirements The Fly America requirements flow down from FTA recipients and subrecipients to first tier contractors who are responsible for ensuring that lower tier contractors and subcontractors are in compliance. Model Clause/Language The relevant statutes and regulations do not require any specific clause or language that recipients use in their third party contracts.A sample clause is provided for Federal contracts at 48 C.F.R. 52.247-63. Recipients can draw on the following language for inclusion in their federally funded procurements. FTA proposes the following language, modified from the Federal clause. 35 Fly America Requirements a)Definitions. As used in this clause-- "International air transportation" means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States. "United States" means the 50 States,the District of Columbia,and outlying areas. "U.S.-flag air carrier" means an air carrier holding a certificate under 49 U.S.C.Chapter 411. b)When Federal funds are used to fund travel,Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974(49 U.S.C.40118) (Fly America Act) requires contractors, recipients,and others use U.S.-flag air carriers for U.S.Government-financed international air transportation of personnel (and their personal effects)or property,to the extent that service by those carriers is available. It requires the Comptroller General of the United States, in the absence of satisfactory proof of the necessity for foreign-flag air transportation, to disallow expenditures from funds,appropriated or otherwise established for the account of the United States,for international air transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services. c)If available,the Contractor, in performing work under this contract,shall use U.S.-flag carriers for international air transportation of personnel (and their personal effects)or property. d)In the event that the Contractor selects a carrier other than a U.S.-flag air carrier for international air transportation,the Contractor shall include a statement on vouchers involving such transportation essentially as follows: Statement of Unavailability of U.S.-Flag Air Carriers International air transportation of persons(and their personal effects)or property by U.S.-flag air carrier was not available or it was necessary to use foreign-flag air carrier service for the following reasons.See FAR §47.403. [State reasons]: (End of statement) e)The Contractor shall include the substance of this clause, including this paragraph (e), in each subcontract or purchase under this contract that may involve international air transportation. (End of Clause) A.13 GOVERNMENT-WIDE DEBARMENT AND SUSPENSION 2 C.F.R. part 180 2 C.F.R part 1200 2 C.F.R. §200.213 2 C.F.R. part 200 Appendix II (I) Executive Order 12549 Executive Order 12689 Background and Applicability A contract award (of any tier) in an amount expected to equal or exceed $25,000 or a contract award at any tier for a federally required audit(irrespective of the contract amount) must not be made to parties listed on the government-wide exclusions in the System for Award Management(SAM), in accordance with the OMB guidelines at 2 C.F.R. part 180. The Excluded Parties List System in SAM contains the names of parties debarred,suspended, 36 or otherwise excluded by agencies,as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Recipients, contractors,and subcontractors(at any level)that enter into covered transactions are required to verify that the entity(as well as its principals and affiliates)with which they propose to contract or subcontract is not excluded or disqualified.This is done by: (a)checking the SAM exclusions; (b)collecting a certification from that person;or(c)adding a clause or condition to the contract or subcontract. Flow Down Recipients, contractors,and subcontractors who enter into covered transactions with a participant at the next lower level, must require that participant to:(a)comply with subpart C of 2 C.F.R. part 180, as supplemented by 2 C.F.R. part 1200;and (b)pass the requirement to comply with subpart C of 2 C.F.R. part 180 to each person with whom the participant enters into a covered transaction at the next lower tier. Model Clause/Language There is no required language for the Debarment and Suspension clause. Recipients can draw on the following language for inclusion in their federally funded procurements. Debarment,Suspension,Ineligibility and Voluntary Exclusion The Contractor shall comply and facilitate compliance with U.S. DOT regulations, "Nonprocurement Suspension and Debarment," 2 C.F.R. part 1200, which adopts and supplements the U.S.Office of Management and Budget (U.S.OMB) "Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement)," 2 C.F.R. part 180. These provisions apply to each contract at any tier of$25,000 or more,and to each contract at any tier for a federally required audit(irrespective of the contract amount),and to each contract at any tier that must be approved by an FTA official irrespective of the contract amount.As such,the Contractor shall verify that its principals, affiliates,and subcontractors are eligible to participate in this federally funded contract and are not presently declared by any Federal department or agency to be: a) Debarred from participation in any federally assisted Award; b)Suspended from participation in any federally assisted Award; c)Proposed for debarment from participation in any federally assisted Award; d)Declared ineligible to participate in any federally assisted Award; e)Voluntarily excluded from participation in any federally assisted Award;or f) Disqualified from participation in ay federally assisted Award. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by the AGENCY. If it is later determined by the AGENCY that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to the AGENCY,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 2 C.F.R. part 180,subpart C,as supplemented by 2 C.F.R. part 1200,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. 37 A.14 LOBBYING RESTRICTIONS 31 U.S.C. § 1352 2 C.F.R. §200.450 2 C.F.R. part 200 appendix II (1) 49 C.F.R. part 20 Applicability to Contracts The lobbying requirements apply to all contracts and subcontracts of$100,000 or more at any tier under a Federal grant. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency,a Member of Congress,an officer or employee of Congress,or an employee of a Member of Congress in connection with this agreement,the payor must complete and submit the Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. Flow Down The lobbying requirements mandate the maximum flow down pursuant to Byrd Anti-Lobbying Amendment,31 U.S.C. § 1352(b)(5). Model Clause/Language 49 C.F.R. part 20, Appendices A and B provide specific language for inclusion in FTA funded third party contracts as follows: Lobbying Restrictions The undersigned certifies,to the best of his or her knowledge and belief,that: 1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned,to any person for influencing or attempting to influence an officer or employee of an agency,a Member of Congress,an officer or employee of Congress,or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan,the entering into of any cooperative agreement, and the extension, continuation, renewal,amendment, or modification of any Federal contract,grant, loan,or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency,a Member of Congress,an officer or employee of Congress,or an employee of a Member of Congress in connection with this Federal contract,grant, loan,or cooperative agreement,the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. 3.The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers(including subcontracts,sub-grants, and contracts under grants, loans, and cooperative agreements)and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352,title 31, U.S.Code.Any person who fails to file the required certification shall be subject to a civil penalty of not less than$10,000 and not more than$100,000 for each such failure. Signature of Contractor's Authorized Official Name and Title of Contractor's Authorized Official Date 38 A.15 NO GOVERNMENT OBLIGATION TO THIRD PARTIES Applicability to Contracts The No Obligation clause applies to all third party contracts that are federally funded. Flow Down The No Obligation clause extends to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier. Model Clause/Language There is no required language for the No Obligations clause. Recipients can draw on the following language for inclusion in their federally funded procurements. No Federal Government Obligation to Third Parties. The Recipient 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 Recipient, Contractor or any other party(whether or not a party to that contract) pertaining to any matter resulting from the underlying Contract. The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by the FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. A.18 PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS 49 U.S.C. §5323(I) (1) 31 U.S.C. §§3801-3812 18 U.S.C. § 1001 49 C.F.R. part 31 Applicability to Contracts The Program Fraud clause applies to all third party contracts that are federally funded. Flow Down The Program Fraud clause extends to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier.These requirements flow down to contractors and subcontractors who make, present, or submit covered claims and statements. Model Clause/Language There is no required language for the Program Fraud clause. Recipients can draw on the following language for inclusion in their federally funded procurements. Program Fraud and False or Fraudulent Statements or Related Acts 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 C.F.R. part 31,apply to its actions pertaining to this Project. Upon execution of the underlying contract,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 the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable,the Contractor further acknowledges that if it makes,or causes to be 39 made,a false, fictitious,or fraudulent claim,statement, submission,or certification,the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. 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. chapter 53, the Government reserves the right to impose the penalties of 18 U.S.C. §1001 and 49 U.S.C. §5323(1) on the Contractor,to the extent the Federal Government deems appropriate. 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. A.20 RECYCLED PRODUCTS 42 U.S.C. §6962 40 C.F.R. part 247 2 C.F.R. part§200.322 Applicability to Contracts The Resource Conservation and Recovery Act,as amended, (42 U.S.C. §6962 etseq.), requires States and local governmental authorities to provide a competitive preference to products and services that conserve natural resources, protect the environment,and are energy efficient. Recipients are required to procure only items designated in guidelines of the Environmental Protection Agency(EPA)at 40 C.F.R. part 247 that contain the highest percentage of recovered materials practicable,consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds$10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000. Flow Down These requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier where the value of an EPA designated item exceeds$10,000. Model Clause/Language There is no required language for preference for recycled products. Recipients can draw on the following language for inclusion in their federally funded procurements. Recovered Materials The Contractor agrees to provide a preference for those products and services that conserve natural resources, protect the environment,and are energy efficient by complying with and facilitating compliance with Section 6002 of the Resource Conservation and Recovery Act,as amended, 42 U.S.C. §6962,and U.S. Environmental Protection Agency(U.S. EPA), "Comprehensive Procurement Guideline for Products Containing Recovered Materials,"40 C.F.R. part 247. 40 A.21 SAFE OPERATION OF MOTOR VEHICLES 23 U.S.C. part 402 Executive Order No. 13043 Executive Order No. 13513 U.S. DOT Order No.3902.10 Applicability to Contracts The Safe Operation of Motor Vehicles requirements apply to all federally funded third party contracts. In compliance with Federal Executive Order No. 13043, "Increasing Seat Belt Use in the United States,"April 16, 1997, 23 U.S.C.Section 402 note, FTA encourages each third party contractor to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company owned, rented,or personally operated vehicles,and to include this provision in each third party subcontract involving the project. Additionally, recipients are required by FTA to include a Distracted Driving clause that addresses distracted driving, including text messaging in each of its third party agreements supported with Federal assistance. Flow Down Requirements The Safe Operation of Motor Vehicles requirements flow down to all third party contractors at every tier. Model Clause/Language There is no required language for the Safe Operation of Motor Vehicles clause. Recipients can draw on the following language for inclusion in their federally funded procurements. Safe Operation of Motor Vehicles Seat Belt Use The Contractor is encouraged to adopt and promote on-the-job seat belt use policies and programs for its employees and other personnel that operate company-owned vehicles,company-rented vehicles,or personally operated vehicles.The terms "company-owned"and "company-leased" refer to vehicles owned or leased either by the Contractor or AGENCY. Distracted Driving The Contractor agrees to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers, including policies to ban text messaging while using an electronic device supplied by an employer,and driving a vehicle the driver owns or rents,a vehicle Contactor owns, leases, or rents, or a privately-owned vehicle when on official business in connection with the work performed under this agreement. A.25 TERMINATION 2 C.F.R. §200.339 2 C.F.R. part 200,Appendix II (B) Applicability to Contracts All contracts in excess of$10,000 must address termination for cause and for convenience, including the manner by which it will be effected and the basis for settlement. 41 Flow Down For all contracts in excess of$10,000,the Termination clause extends to all third party contractors and their contracts at every tier and subrecipients and their subcontracts at every tier. Model Clause/Language There is no required language for the Terminations clause. Recipients can draw on the following language for inclusion in their federally funded procurements. The following contract language shall apply: Termination for Convenience(General Provision) The AGENCY may terminate this contract, in whole or in part,at any time by written notice to the Contractor when it is in the AGENCY's best interest. The Contractor shall be paid its costs, including contract close-out costs,and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to AGENCY to be paid the Contractor. If the Contractor has any property in its possession belonging to AGENCY,the Contractor will account for the same,and dispose of it in the manner AGENCY directs. Termination for Default[Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule,or if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the AGENCY may terminate this contract for default. Termination shall be effected by serving a Notice of Termination on the Contractor setting forth the manner in which the Contractor is in default.The Contractor will be paid only the contract price for supplies delivered and accepted,or services performed in accordance with the manner of performance set forth in the contract. If it is later determined by the AGENCY that the Contractor had an excusable reason for not performing,such as a strike, fire,or flood, events which are not the fault of or are beyond the control of the Contractor, the AGENCY, after setting up a new delivery of performance schedule, may allow the Contractor to continue work,or treat the termination as a Termination for Convenience. Opportunity to Cure(General Provision) The AGENCY, in its sole discretion may, in the case of a termination for breach or default,allow the Contractor[an appropriately short period of time] 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 Contractor fails to remedy to AGENCY's satisfaction the breach or default of any of the terms,covenants,or conditions of this Contract within [10 days]after receipt by Contractor of written notice from AGENCY setting forth the nature of said breach or default,AGENCY shall have the right to terminate the contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude AGENCY from also pursuing all available remedies against Contractor and its sureties for said breach or default. Waiver of Remedies for any Breach In the event that AGENCY elects to waive its remedies for any breach by Contractor of any covenant,term or condition of this contract,such waiver by AGENCY shall not limit AGENCY's remedies for any succeeding breach of that or of any other covenant, term, or condition of this contract. Termination for Default(Supplies and Service) If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension,or if the Contractor fails to comply with any other provisions of this contract,the AGENCY may terminate this contract for default.The AGENCY shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default.The Contractor will only be paid the contract price for supplies delivered and accepted,or services performed in accordance with the manner or performance set forth in this contract. 42 If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the AGENCY. A.26 VIOLATION AND BREACH OF CONTRACT 2 C.F.R. §200.326 2 C.F.R. part 200,Appendix II (A) Applicability to Contracts All contracts in excess of the Simplified Acquisition Threshold (currently set at$150,000)shall contain administrative,contractual,or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. Flow Down The Violations and Breach of Contracts clause flow down to all third party contractors and their contracts at every tier. Model Clauses/Language FTA does not prescribe the form or content of such provisions. The provisions developed will depend on the circumstances and the type of contract. Recipients should consult legal counsel in developing appropriate clauses. The following clauses are examples of provisions from various FTA third party contracts. Recipients can draw on these examples for inclusion in their federally funded procurements. Rights and Remedies of the AGENCY The AGENCY shall have the following rights in the event that the AGENCY deems the Contractor guilty of a breach of any term under the Contract. 1.The right to take over and complete the work or any part thereof as agency for and at the expense of the Contractor,either directly or through other contractors; 2.The right to cancel this Contract as to any or all of the work yet to be performed; 3.The right to specific performance, an injunction or any other appropriate equitable remedy;and 4.The right to money damages. For purposes of this Contract, breach shall include [AGENCY to define]. Rights and Remedies of Contractor Inasmuch as the Contractor can be adequately compensated by money damages for any breach of this Contract, which may be committed by the AGENCY,the Contractor expressly agrees that no default,act or omission of the AGENCY shall constitute a material breach of this Contract, entitling Contractor to cancel or rescind the Contract (unless the AGENCY directs Contractor to do so)or to suspend or abandon performance. Remedies Substantial failure of the Contractor to complete the Project in accordance with the terms of this Agreement will be a default of this Agreement. In the event of a default, the AGENCY will have all remedies in law and equity, including the right to specific performance, without further assistance, and the rights to termination or suspension as provided herein. The Contractor recognizes that in the event of a breach of this Agreement by the Contractor before the AGENCY takes action contemplated herein,the AGENCY will provide the Contractor with sixty(60)days 43 written notice that the AGENCY considers that such a breach has occurred and will provide the Contractor a reasonable period of time to respond and to take necessary corrective action. Disputes • Example 1: Disputes arising in the performance of this Contract that are not resolved by agreement of the parties shall be decided in writing by the authorized representative of AGENCY's [title of employee]. This decision shall be final and conclusive unless within [10]days from the date of receipt of its copy,the Contractor mails or otherwise furnishes a written appeal to the [title of employee]. 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 decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision. • Example 2: The AGENCY and the Contractor intend to resolve all disputes under this Agreement to the best of their abilities in an informal manner.To accomplish this end,the parties will use an Alternative Dispute Resolution process to resolve disputes in a manner designed to avoid litigation. In general,the parties contemplate that the Alternative Dispute Resolution process will include, at a minimum,an attempt to resolve disputes through communications between their staffs, and, if resolution is not reached at that level,a procedure for review and action on such disputes by appropriate management level officials within the AGENCY and the Contractor's organization. In the event that a resolution of the dispute is not mutually agreed upon, the parties can agree to mediate the dispute or proceed with litigation. Notwithstanding any provision of this section,or any other provision of this Contract, it is expressly agreed and understood that any court proceeding arising out of a dispute under the Contract shall be heard by a Court de novo and the court shall not be limited in such proceeding to the issue of whether the Authority acted in an arbitrary,capricious or grossly erroneous manner. Pending final settlement of any dispute,the parties shall proceed diligently with the performance of the Contract, and in accordance with the AGENCY's direction or decisions made thereof. Performance during Dispute Unless otherwise directed by AGENCY, Contractor shall continue performance under this Contract while matters in dispute are being resolved. 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 its employees,agents or others for whose acts it is legally liable,a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury or damage. Remedies Unless this Contract provides otherwise, all claims,counterclaims,disputes and other matters in question between the AGENCY 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 the State in which the AGENCY is located. Rights and Remedies The duties and obligations imposed by the Contract documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the AGENCY 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.