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Home My WebLink AboutR-2011-157 Commuter Service Contract and Vehicle Lease Agreement with HopeSource RESOLUTION NO. R- 2011 -157 A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute the two -year commuter service contract and vehicle lease agreement with HopeSource to provide service between the cities of Yakima and Ellensburg, WA. WHEREAS, the City of Yakima applied for grant funding under the Washington State Department of Transportation's Consolidated Grant Program in partnership with HopeSource to fund a fixed -route commuter service demonstration project that will operate in and between the cities of Yakima and Ellensburg, WA; and, WHEREAS, under the agreement, the grant will fund 50% of the total project costs, Yakima Transit will be responsible for 25% and HopeSource will be responsible for the other 25% of the project's anticipated cost of $528,000 for the two -year period with fares for this service offsetting some of the associated costs which are set at $3 for a one -way ticket or $100 for an unlimited monthly pass; and, WHEREAS, Yakima Transit provides fixed -route transit services in and through the cities of Yakima and Selah; and, WHEREAS, HopeSource, a nonprofit organization located in Ellensburg, WA, provides fixed -route transit services in and through the city of Ellensburg and portions of Kittitas County; and, WHEREAS, the Washington State Department of Transportation awarded funding on June 1, 2011; and, WHEREAS, after the funding was awarded to Yakima Transit, it was determined that state law prohibits Yakima Transit from operating the service as proposed, as a result, the WSDOT grant award has been transferred to HopeSource, our partner in this venture; and, WHEREAS, in order to facilitate the awarded grant funding, it is necessary and in the City's best interest to enter into an agreement with HopeSource for operating the service and leasing vehicles necessary to provide the service; and WHEREAS, the parties are continuing to review and negotiate provisions of the agreement relating to insurance coverage, with such insurance issues to be resolved between the parties soon; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is authorized and directed to execute an agreement with HopeSource entitled the Ellensburg — Yakima Commuter Service Contract with Vehicle Lease Agreement substantially similar to the attached documents. The City Council further authorizes minor editing changes to the attached documents as well as changes on the insurance protection for the City, said changes to be approved by the City Manager in consultation with the City Attorney. ADOPTED BY THE CITY COUNCIL at a regular meeting this 18th day of October, 2011. //pa Micah Cawley, Ma or ATTEST: Deborah Kloster, City Cl- k . ' s► ; : SE AL �� . o �� /L -aGll /S7 Ellensburg - Yakima Commuter Service Contract THIS ELLENSBURG- YAKIMA COMMUTER SERVICE CONTRACT (hereinafter "Contract ") is made and entered into by and between the City of Yakima, a Washington municipal corporation (hereinafter "City"), and HopeSource, a nonprofit 501(c)(3) corporation that operates fixed -route transit services within the City of Ellensburg (hereinafter "Contractor"). WHEREAS, Yakima Transit has determined that City of Yakima residents need public transportation services to the City of Ellensburg for education and employment; and, that residents of the City of Ellensburg need public transportation services to the City of Yakima for education, medical /health, shopping, and employment. WHEREAS, the City applied for funding through the Washington State Department of Transportation's (WSDOT) Consolidated Grant Program under a joint application with Contractor in order to provide the needed services. WHEREAS, the funding was awarded to the City of Yakima and upon further review it was determined in order to comply with Washington State statutes that the grant award needed to be transferred to Contractor and that the City contract for their portion of the services. WHEREAS, the grant award and contract are a mutual benefit to both parties and in the best interest to the City of Yakima. WHEREAS, Contractor has the experience and expertise necessary to perform the services being contracted for and has been in business since 1966. NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements setforth herein, it is agreed by and between the City and Contractor as follows: 1. Term. This Agreement shall commence upon execution of this agreement and shall terminate when the grant funding the program terminates, unless terminated earlier by either party in accordance with Section 27 of this Agreement. In no instance shall this contract go beyond the two -year grant period as stated in the grant contract between Contractor and WSDOT, unless mutually agreed to between the parties in writing. 2. Scope of Services. Contractor shall provide the City with commuter fixed -route services between the cities of Yakima and Ellensburg Monday - Friday with eight round trips (see Exhibit B - Ellensburg- Yakima Commuter Service Schedule) in conjunction with the grant contract they have with the Washington State Department of Transportation attached and incorporated as "Exhibit C — Consolidated Grant Contract." The days of operation required under this contract include every day of the weekday. Yakima Transit does not provide local fixed -route transit services on New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas Day. Service may be reduced or excluded for those days, as well as ML King Day, President's Day, Veterans Day, or the day after Thanksgiving. In the event the HopeSource driver in Yakima is sick or not able to drive, in order to maintain the reliability of the program, Yakima Transit shall drive a bus to the 15 -mile point between Ellensburg and Yakima. The scope of services may be modified by mutual written agreement of the parties. 1 3. Compensation. A. Compensation for Services. As consideration for the services performed pursuant to this Agreement, the City agrees to compensate Contractor at the rate of twenty -five percent of the total cost to provide the service less expenses for any fares provided by clients. In no event shall the amount paid by City exceed the amount paid by WSDOT for this service or exceed $132,000 in total over the two -year period. Passenger fares shall be used to reduce the total cost of the service before Contractor bills for the service provided. B. Payment for Compensation. Contractor shall provide the City with an itemized invoice /billing no later than thirty (30) calendar days from the end of each three -month quarter. In the event any of the amounts claimed are in the opinion of Yakima Transit non - compensable under the Contract, Yakima Transit shall immediately inform Contractor of it's position in this regard with specifics as to why Yakima Transit believes the amounts claimed to be non - compensable. In the event of a dispute between the parties with regard to this issue, either party may pursue damages or compensation owed, and the provisions of paragraph 27B shall apply. The City shall make payment to Contractor within thirty (30) calendar days upon receipt of each invoice /billing. In the event the City believes that the services provided by Contractor do not conform with its obligations under this Contract, the City may provide Notice of Default pursuant to paragraph 27B herein. C. Source of Funds. The source of funds used for City's portion of compensation under this agreement is through the City of Yakima's Transit sales tax revenue. Contractor shall receive any reimbursements from WSDOT under the terms of the grant contract, as well as fare revenues for the service provided. D. Vehicle Leases. As alternative compensation, the City shall, under a separate lease agreement attached as "Exhibit A - Vehicle Lease Agreement," provide vehicles necessary to operate the services rendered under this contract. E. Payment in the Event of Termination. In the event that either party terminates this Agreement pursuant to Section 27, either party shall be compensated on a pro -rata basis for services provided under this Agreement up to the effective termination date. 4. Passenger Payments. A. Fares. Fares shall be charged to each individual using the service. The fare to be charged shall be $3.00 for each one -way trip ($6.00 roundtrip). Fare amount may be adjusted /changed upon mutual agreement once service has begun. No fare changes will be made unless expressly agreed to, in writing, by the City and Contractor. B. City -to -City Service. It is mutually agreed between the parties that once the passenger pays the one -way commuter fare between the two cities, that no additional fares shall be charged to the passenger for transfers on fixed -route services within the respective cities. The City may charge $3 fares prior to the passenger boarding the commuter route and remit any payments to Contractor. A special transfer slip indicating that the fare was paid to Yakima Transit is needed in order for the Contractor to receive payment. Upon payment to the City, the City shall provide the passenger with a ticket or transfer that shall be acceptable payment for services provided. 2 C. Service in Yakima. Passengers may use the commuter service within the Yakima Area at a reduced fare when not headed to Ellensburg. The cost for that fare is $0.75 for commuter services provided between the Perry Tech location and the Firing Center location. D. Passenger Passes - Monthly. Passengers may purchase a monthly pass, which shall act as payment for services provided. The price of a monthly pass shall initially be set at $100.00 per month. Pass price may change in the future, but not until agreed to, in writing by City and Contractor. Yakima Transit shall design the passes and distribute them to Ellensburg for sale. Monthly commuter passes shall also be valid for intercity transit services. Monthly passes shall only be sold at mutually agreed upon locations and not on the bus /vehicle. 5. Marketing. The parties to this contract shall be responsible for advertising within their own jurisdiction to market the service being provided under this contract. Marketing shall be coordinated between the parties to prevent too little or too much advertising. All advertising or marketing materials for this service must be approved by the parties, in writing, prior to dissemination or distribution. Costs associated with marketing shall be considered contribution to the total amount required to be paid under the contract. 6. Reporting Requirements. The quarterly invoice submitted by the Contractor must be accompanied by progress reports for the period detailing actual vehicle miles, actual vehicle revenue miles, actual vehicle hours, actual vehicle revenue hours, unlinked passenger trips, and passenger miles traveled to provide the service rendered in performance of the contract broken down for each month. All necessary reporting must be submitted to Yakima Transit with any invoice or request for payment. Any deviation from this requirement must be specifically approved in writing by Yakima Transit's Manager in advance. 7. Coordination of the Work. The City designates the Transit Manager or a designee as its representative authorized to act on its behalf in the direction of the work under this Agreement. Contractor designates the Chief Operations Officer or a designee as its representative authorized to act on its behalf in the direction of the work under this Agreement. This authority of the designated official does not extend to issuing directives outside the scope of or contradictory to the provisions of this Agreement. Said representative shall have full authority to direct all affairs in respect to the work performed under this Agreement. Any designation beyond those specifically stated herein to act on the authority of either party shall be in writing provided to the other party and revoked in the same manner. 8. Independent Contractor Status of Contractor. Contractor and the City understand and expressly agree that Contractor and its employees are independent contractors in the performance of each and every part of this Agreement. Contractor, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the services required under this Agreement. Additionally, and as an independent contractor, Contractor and its employees shall make no claim of City employment nor make any claim against the City for any related employment benefits, social security, retirement benefits or benefits of any kind that are normally an incident of employment. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership, or agency between Contractor or any officer, employee, or agent of Contractor and the City. 9. Taxes and Assessments. Contractor shall be solely responsible for compensating its employees and for paying all related taxes, deductions, and assessments, including but not 3 limited to, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. 10. Compliance With Law. Contractor agrees to perform all services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. Contractor shall obtain all applicable and necessary licenses, permits, and approvals of any federal, state, or local government or governmental authority. 11. Federal Requirements And Changes. The Contractor shall at all times comply with all applicable Federal Transit Administration (FTA) regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement (Form FTA MA -6 dated October 1, 2001) between Yakima Transit and FTA, as they may be amended or promulgated from time to time during the term of this Agreement as well as the terms and conditions of the grant agreement (UCB1001) between Contractor and WSDOT. The Contractor's failure to so comply shall constitute a material breach of this Agreement. 12. Insurance. It is understood the City is not required to and will not maintain liability insurance for Contractor and /or its officers, employees, agents, instructors, and /or subcontractors and that such insurance is the sole responsibility of Contractor. 13. Indemnification and Hold Harmless. A. Contractor agrees to protect, defend, indemnify, exonerate, and hold harmless the City, its elected officials, agents, officers, employees from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses (including attorneys' fees and disbursements) resulting from Contractor's performance and /or nonperformance of this Agreement. B. In the event both the Contractor and the City are negligent, the Contractor's liability for indemnification of the City shall be limited to the contributory negligence for any resulting suits, actions, claims, liability, damages, judgments, costs, and expenses (including reasonable attorney's fees) that can be apportioned to the Contractor, its officers, employees, agents, and /or subcontractors. C. Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. 14. Commercial Liability Insurance. Upon this Agreement being fully executed by the parties, the Contractor shall provide the City with a certificate of insurance as proof of commercial liability insurance and umbrella liability insurance with a combined liability limit limit of Five Million Dollars ($5,000,000.00) per occurrence. . The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, "its elected officials, officers, agents, and employees as additional insureds," and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. 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. If the City is damaged by the failure of Contractor to maintain the above insurance or to so notify the City, the Contractor shall bear all costs attributable thereto. 4 15. Automobile Liability Insurance. Upon this Agreement being fully executed by the parties, the contractor shall provide the City with a certificate of Automobile Liability insurance for vehicles operated by Contractor pursuant to this Agreement with limits of Twelve Million Dollars ($12,000,000.00) per occurrence. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, "its elected officials, officers, agents, and employees as additional insureds," and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice. 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. If the City is damaged by the failure of Contractor to maintain the above insurance or to so notify the City, the Contractor shall bear all costs attributable thereto. 16. Employment Practices Liability Insurance. Before this Contract is fully executed by the parties, Contractor shall provide the City with a certificate of insurance as evidence of Employment Practices Liability Insurance with coverage of at least One Million Dollars ($1,000,000.00) per occurrence and an annual aggregate limit of at least One Million Dollars ($1,000,000.00). The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect. The insurance shall be with an insurance company rated A -VII or higher in Best's Guide. If the policy is on a claims made basis, the retroactive date of the insurance policy shall be on or before the inception date of the Contract, or shall provide full prior acts. The insurance coverage shall remain in effect during the term of this Contract and for a minimum of three (3) years following the termination of this Contract. 17. Delegation of Professional Services. The services provided for herein shall be performed by Contractor, and no person other than regular associates or employees of Contractor shall be engaged upon such work or services except upon prior written consent of the City, which consent shall not be unreasonably withheld, and except for incidental transit services for unmet demand. A. In the event that existing transit services cannot meet demand, incidental transit services (ITS) should be contracted out to a private or public provider authorized by the Washington State Utilities and Transportation Commission or the Washington State Department of Transportation to operate public transportation services in the corridor between the Cities of Yakima and Ellensburg, if feasible. B. Compensation for ITS shall not be more than $5.60 per passenger trip for the one -way distance between the Cities of Yakima and Ellensburg or $1.25 per passenger one way between the Yakima Transit Center bus stop and the Yakima Firing Center bus stop. Compensation shall not be provided for trips that begin and end within the same city. C. Contractor shall notify City when demand exceeds available services and an ITS provider has been requested to provide the service. D. Both Contractor and the ITS provider shall keep records of the trips taken, which shall include: the date, time, A -to -B destination, and compensation (including any fares received) for the trip provided. A voucher form signed by City or Contractor containing information about the trip (provided by ITS provider) shall be submitted along with invoice in order for provider to receive compensation. 5 E. When the ITS provider is enlisted to provide the service, the route the ITS provider shall take shall be the same as the existing commuter service provided under this contract, unless and until all contracted passengers have deboarded the service. 18. Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by Contractor to any other person or entity without the prior written consent of the City. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of Contractor stated herein. 19. Code of Ethics. Contractor agrees to maintain a written code or standards of conduct that shall govern the performance of its officers, employees, board members, or agents engaged in the award and administration of contracts. The code or standards shall provide that the Contractor's officers, employees; board members, or agents may neither solicit nor accept gratuities, favors, or anything of monetary value from any present or potential contractor or subrecipient. Contractor may set minimum rules where the financial interest is not substantial, or the gift is an unsolicited item of nominal intrinsic value. These codes or standards shall prohibit the Contractor's officers, employees, board members, or agents from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest or personal gain. As permitted by state or local law or regulations, such code or standards shall include penalties, sanctions, or other disciplinary actions for violations by the Contractor's officers, employees, board members, or agents, or by subcontractors or sub - recipients or their agents. A. Personal Conflict of Interest. Contractor's code or standards shall prohibit the Contractor's employees, officers, board members, or agents from participating in the selection, award, or administration of a contract supported by state funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when any of the parties set forth below has a financial or other interest in the firm or entity selected for award: 1. The employee, officer, board member or agent; 2. Any member of his or her immediate family; 3. His or her partner; or 4. An organization that employs, or is about to employ, any of the above. B. Organizational Conflict of Interest. Contractor's code or standard of conduct must include procedures for identifying and preventing real and apparent organizational conflicts of interest. An organizational conflict of interest exists when the nature of the work to be performed under a proposed third party contract may, without some restrictions on future activities, result in an unfair competitive advantage to the third party contractor or impair its objectivity in performing the contract work. 20. Accounting Records. A. Proiect;Accounts. Contractor agrees to establish and maintain for the Project either a separate set of accounts or separate accounts within the framework of an established accounting system that can be identified within the contract. Contractor agrees that all checks,„ payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the contract shall be clearly identified readily accessible and available to Yakima Transit and /or City of Yakima upon request, and, to the extent feasible, kept separate from documents not pertaining to the contract. 6 B. Documentation of Contract Costs & Income. Contractor agrees to support all costs charged to the contract, including any approved services contributed by the Contractor or others, with properly executed payroll documents, time records, invoices, or contracts describing in detail the nature and propriety of the charges. Contractor also agrees to maintain accurate records of all program income derived from contract implementation. 21. Audits, Inspection, and Retention of Records. A. Submission of Proceedings, Contracts, and Other Documents. During the course of the contract and for six years thereafter, Contractor agrees to retain intact and to provide any data, documents, reports, records, contracts, and supporting materials relating to the Contract as the City of Yakima may require and contract closeout does not alter these recording and record - keeping requirements. Should an audit, enforcement, or litigation process be commenced, but not completed, during the aforementioned six -year period then the Contractors obligations hereunder shall be extended until the conclusion of that pending audit, enforcement, or litigation process. B. General Audit Requirements. Contractor agrees to obtain any other audits required by the City of Yakima. Contract closeout will not alter the Contractor's audit responsibilities. C. Inspection. Contractor agrees to permit the City, State Auditor, or their authorized representatives, to inspect all Contractor work materials, payroll, and other data, and to audit the books, records, and accounts of the Contractor that pertain to the Project. Contractor further agrees to require each third party to permit the City, State Auditor, or their duly authorized representatives, to inspect all work, materials, payrolls, and other data and records involving third party contracts, and to audit the books, records, and accounts involving that third party contract as it affects this Agreement. 22. Incorporation of FTA Terms. The following provisions include, in part, certain standard Terms and Conditions required by DOT. All the contractual provisions required by DOT, as set forth in FTA Circular 4220.1E, dated June 19, 2003, as amended, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any Yakima Transit requests, which would cause Yakima Transit to be in violation of the FTA terms and conditions. A. Charter Service Operations - The contractor agrees to comply with 49 U.S.C. 5323(d) and 49 CFR Part 604, which provides that recipients and subrecipients of FTA assistance are prohibited from providing charter service using federally funded equipment or facilities if there is at least one private charter operator willing and able to provide the service, except under one of the exceptions at 49 CFR 604.9. Any charter service 'provided under one of the exceptions must be "incidental," i.e., it must not interfere with or detract from the provision of mass transportation. B. Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. C. Clean Water - 1. The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 7 1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. 2. The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. D. Byrd Anti - Lobbying Amendment, '31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104 -65 [to be codified at 2 U.S.C. § 1601, et seq.] or as hereinafter amended - Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer "or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non - Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient. Contractor further agrees that it has or will submit APPENDIX A, 49 CFR PART 20 -- CERTIFICATION REGARDING LOBBYING for every bid or offer submitted that exceeds $100,000 in connection with this contract or related to the services provided hereunder. E. Access To Records. 1. The Contractor agrees to provide Yakima Transit, the City of Yakima, or any of their duly authorized representatives, or government agency access to any books, documents, papers, and records of the Contractor that are directly pertinent to this Agreement for the purposes of making audits, examinations, excerpts and transcriptions. The Contractor agrees, pursuant to 49 CFR § 633.17 to provide the FTA Administrator or his /her authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined in 49 USC 5302(a)(1), which is receiving federal financial assistance through the programs described at 49 USC §§ 5307, 5309, or 5311. The Contractor also agrees to permit any of the foregoing parties (at their costs) to reproduce by any means whatsoever any excerpts and transcriptions as reasonably needed, and to permit said parties to interview Contractor's employees during work hours on the job. 2. The Contractor agrees to maintain all books, records, accounts and reports required under this Agreement for a period of not less than three (3) years after the date of termination or expiration of this Agreement, except in the event of litigation or settlement of claims arising from the performance of this Agreement, in which case the Contractor agrees to maintain same until Yakima Transit, the FTA Administrator, the Secretary of Transportation, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. F. Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed 8 directly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. G. Clean Air - 1. Th'e Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. 2. The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. H. Recovered Materials - The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. I. No Obligation by the Federal Government. 1. The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. 2. The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. J. Program Fraud And False Or Fraudulent Statements And Related Acts. 1. The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and 'U.S. DOT regulations, "Program Fraud Civil Remedies," 49 CFR Part 31, apply to its actions pertaining to this procurement. Upon execution of this Agreement, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to this Agreement or the FTA assisted project for which this Agreement is being performed. 2. The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. Part 53, the Government reserves the right to impose the penalties under 18 USC § 1001 "Fraud and False Statements" and the Program Fraud Civil Remedies 9 Act of 1986 (31 USC §§ 3801 -3812) on the Contractor, to the extent the Federal Government deems appropriate. 3. The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions under this Agreement. K. Suspension and Debarment 1. This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. 2. The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. 3. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by Yakima Transit. If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to Yakima Transit, the Federal Government may pursue available remedies, including but not limited to suspension and /or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. L. Contracts Involving Federal Privacy Act Requirements - The following requirements apply to the Contractor and its employees that administer any system of records on behalf of the Federal Government under any contract: 1. The Contractor agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a. Among other things, the Contractor agrees to obtain the express consent of the Federal Government before the Contractor or its employees operate a system of records on behalf of the Federal Government. The Contractor understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract. 2. The Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FTA. M. Civil Rights - The following requirements apply to the underlying contract: 1. Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 10 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. 2. Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: a. Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal i Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. b. Aqe - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. c. Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. 3. The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. N. Breaches and Dispute Resolution 1. Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided by mutual agreement between the parties or a mediator (mutually agreed to) if the parties cannot come to an 11 agreement. The decision of the mediator shall be final and conclusive unless within ten (10) days from the date of receipt of its copy, either party files an appeal in court of competent jurisdiction for further resolution. 2. Performance During Dispute - Unless otherwise directed by Yakima Transit, Contractor shall continue performance under this Contract while matters in dispute are being resolved. 3. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefore shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. 4. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within Washington State. 5. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by Yakima Transit or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. O. Transit Employee Protective Provisions. 1. The Contractor agrees to the comply with applicable transit employee protective requirements as follows: a. General Transit Employee Protective Requirements - To the extent that FTA determines that transit operations are involved, the Contractor agrees to carry out the transit operations work on the underlying contract in compliance with terms and conditions determined by the U.S. Secretary of Labor to be fair and equitable to protect the interests of employees employed under this contract and to meet the employee protective requirements of 49 U.S.C. A 5333(b), and U.S. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the letter of certification from the U.S. DOL to FTA applicable to the FTA Recipient's project from which Federal assistance is provided to support work on the underlying contract. The Contractor agrees to carry out that work in compliance with the conditions stated in that U.S. DOL letter. The requirements of this subsection (1), however, do not apply to any contract financed with Federal assistance provided by FTA either for projects for elderly individuals and individuals with disabilities authorized by 49 U.S.C. § 5310(a)(2), or for projects for nonurbanized areas authorized by 49 U.S.C. § 5311. Alternate provisions for those projects are set forth in subsections (b) and (c) of this clause. b. Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C. 5310(a)(2) for Elderly Individuals and Individuals with Disabilities - If the contract involves transit operations financed in whole or in part with Federal 12 assistance authorized by 49 U.S.C. § 5310(a)(2), and if the U.S. Secretary of Transportation has determined or determines in the future that the employee ,protective requirements of 49 U.S.C. § 5333(b) are necessary or appropriate for the state and the public body subrecipient for which work is performed on the underlying contract, the Contractor agrees to carry out the Project in compliance with the terms and conditions determined by the U.S. Secretary of Labor to meet the requirements of 49 U.S.C. § 5333(b), U.S. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the U.S. DOL's letter of certification to FTA, the date of which is set forth Grant Agreement or Cooperative Agreement with the state. The Contractor agrees to perform transit operations in connection with the underlying contract in compliance with the conditions stated in that U.S. DOL letter. c. Transit Employee Protective Requirements for Projects Authorized by 49 U.S.C. 5 5311 in Nonurbanized Areas - If the contract involves transit operations financed in whole or in part with Federal assistance authorized by 49 U.S.C. § 5311, the Contractor agrees to comply with the terms and conditions of the Special Warranty for the Nonurbanized Area Program agreed to by the U.S. Secretaries of Transportation and Labor, dated May 31, 1979, and the procedures implemented by U.S. DOL or any revision thereto. 2. The Contractor also agrees to include the any applicable requirements in each subcontract involving transit operations financed in whole or in part with Federal assistance provided by FTA. P. Disadvantaged Business Enterprise (DBE). 1. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10 %. Yakima Transit's overall goal for DBE participation is 0 %. A separate contract goal has not been established for this procurement. 2. The contractor shall not discriminate on the basis of race, color, national origin, or sex, in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT - assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as Yakima Transit deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR § 26.13(b)) 3. The successful bidder /offeror will be required to report its DBE participation obtained through race - neutral means throughout the period of performance. 4. The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after the contractor's receipt of payment for that work from Yakima Transit. In addition, the contractor may not hold retainage from its subcontractors. 5. The contractor must promptly notify Yakima Transit, whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, 13 and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of Yakima Transit. Q. Drug and Alcohol Testing. The contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Part 655, produce any documentation necessary to establish its compliance with Part 655, and permit any authorized representative of the USDOT or its operating administrations, the WSDOT, or Yakima Transit, to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Part 655 and review the testing process. The contractor agrees further to certify annually its compliance with Part 655 with WSDOT and the FTA, and to submit the Management Information System (MIS) reports before March 1 to WSDOT, Yakima Transit, or directly to the FTA, as applicable. To certify compliance the contractor shall use the "Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements," which is published annually in the Federal Register. 23. Property Rights. All information concerning the City and said project, which is not otherwise a matter of public record or required by law to be made public, is confidential, and the Contractor will not, in whole or part, now or at any time disclose that information without the express written consent of the City. 24. Contract Documents. This Agreement, which includes Exhibits A -C, constitutes the Contract Documents and are complementary. Specific federal and State laws and the terms of this Agreement, in that order respectively, supersede other inconsistent provisions. These Contract Documents are on file in the Office of the Purchasing Manager, 129 N. 2nd St., Yakima, Washington, 98901, and are hereby incorporated by reference into this Agreement. 25. Severability. A. If a court of competent jurisdiction holds any part, term or provision of this Agreement to be illegal, or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. B. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict, and this Agreement shall be deemed modified to conform to such statutory provision. 26. Non - Waiver. A waiver by Contractor or City of the breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by either party or prevent either party from enforcing any such provision. 27. Termination. A. Termination for Convenience. Either party may terminate this Agreement, in whole or in part, at any time by written notice to the other party. The Contractor shall be paid its compensation, in accordance with the terms of this Agreement, up to the time of termination. The Contractor shall promptly submit its termination claim to the City of Yakima Purchasing Manager for final payment. If the Contractor has any property in its 14 possession belonging to Yakima Transit, the Contractor will account for the same, and return it to Yakima Transit or dispose of it in the manner Yakima Transit directs. B. Termination for Default, Breach or Cause. If either party fails to perform in the manner called for in this Agreement, or if either party fails to comply with any other provisions of this Agreement, the other party shall give written notice to said party of said default. The party in default shall then have ninety (90) days in which to remedy the breach or default and provide proof thereof to the other party. In the event the defaulting party fails to remedy the breach or default of any of the terms, covenants, or conditions of this Agreement within the 90 -day period, and provide proof thereof to the other party, the non - defaulting party shall have the right to terminate this Agreement without any further obligation to the other party, and to pursue damages, compensation, and /or to pursue damages, compensation, and /or any other legal remedies. C. Waiver of Remedies for any Breach. In the event that Yakima Transit elects to waive its remedies for any Contractor breach of any covenant, term, or condition of this Agreement, such waiver shall not limit Yakima Transit's legal remedies for any succeeding breach of that or any other term, covenant, or condition of this Agreement. 28. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent to the parties to their addresses as follows: TO CITY: TO CONTRACTOR: Ken Mehin, Transit Manager James Pappas, President Yakima Transit HopeSource 3201 Fruitvale Blvd. 700 E Mountain View, Ste 501 Yakima, WA 98901 Ellensburg, WA 98926 or to such other addresses as the parties may hereafter designate in writing. Notices and /or demands shall be sent by registered or certified mail, postage prepaid or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 29. Survival. Any provision of this Agreement that imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this agreement and shall be binding on the parties to this Agreement. 30. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 31. Venue and Attorneys Fees. If a party is required to bring or maintain any action which refers this document to an attorney for the enforcement of any of the terms and conditions of this Contract, the prevailing party in such action shall, in addition to all other payments required, receive from the other all the costs incurred by the prevailing party, including reasonable attorney fees and such costs and reasonable attorney fees which the prevailing party may incur on any appeal. The venue for any action to enforce or interpret this Agreement shall be laid in the Superior Court of Washington for Kittitas County, Washington 32. Authority. The person executing this Agreement on behalf of Contractor represents and warrants that he /she has been fully authorized by Contractor to execute this Agreement on its behalf and to legally bind Contractor to all the terms, performances and provisions of this Agreement. 15 CITY OF YAKIMA CONTRACTOR By: By: onald B. Cooper, ity Manager James Pappas, President Date: ///99x4' Date: (04 ATTEST: By: a c. 1- I )- Date: ( r /Z-R /i Deborah Kloster, City Clerk ' iryP 11 1 .SEAL %a '' I1 h gSHING 16 Exhibit A - VEHICLE LEASE AGREEMENT THIS VEHICLE LEASE, hereinafter "Lease" is made and entered by and between the City of Yakima, a Washington municipal corporation, (hereinafter "City ") and HopeSource Ellensburg (hereinafter "Contractor"). WHEREAS, City has entered into an agreement with Contractor for the Contractor to provide fixed -route commuter transportation services in and between the cities of Ellensburg and Yakima. WHEREAS, the City finds it to be in the best interests of the public to lease vehicles to Contractor in accordance with the following terms and conditions in order for Contractor to provide such public services. NOW, THEREFORE, in consideration of the mutual covenants, promises, and conditions set forth herein, it is agreed by and between the City and Contractor as follows: A. Vehicles. The City hereby agrees to lease to Contractor those vehicles that are identified in EXHIBIT A, which is attached to this Lease and incorporated herein by this reference, for use by Contractor to provide fixed -route commuter service pursuant to an agreement between City and Contractor. Vehicles may be added to and stricken from this list upon mutual written agreement. The City of Yakima's Transit Manager shall have the authority on behalf of the City of Yakima and HopeSource's Chief Operating Officer, or equivalent, shall have the authority on behalf of HopeSource to modify Exhibit A. B. Contractual Payment. Contractor agrees to pay the City a monthly rental charge of One Hundred Dollars ($100.00) per month per vehicle during the term of this Lease for any cutaways leased and Four Hundred Dollars ($400.00) per month per vehicle during the term of this Lease for any buses (thirty foot or larger) leased. The lease amount shall be deducted from any payments the City makes to contractor under the Ellensburg- Yakima Commuter Service Contract. In the event that the lease amount is more than what City owes Contractor, City shall invoice Contractor quarterly under the same terms and conditions stated in the Ellensburg- Yakima Commuter Service Contract and Contractor shall pay the City within thirty (30) calendar days of receipt of the invoice. The monthly rental charge for each vehicle shall be prorated in the first and last month of use based on when the vehicle is picked up or returned. C. Term. This Lease shall be effective when executed by the parties and shall continue in existence so long as the Ellensburg- Yakima Commuter Service Contract is in effect, unless terminated earlier as provided by Section U of this lease. D. Licensing and Titling. The vehicle titles shall show the City as legal and registered owner. All vehicles shall have exempt license plates. City shall be responsible for their portion of the lease under the terms of the Ellensburg- Yakima Commuter Service Contract § 3. E. Use of Vehicles. Contractor shall use the vehicles solely for commuter transportation under the scope of the Ellensburg- Yakima Commuter Service Contract between the parties and for no other purpose. Contractor agrees that it will not use or permit the use of the vehicles so as to void any insurance covering same, or in a negligent manner, or permit the vehicles to become subject to any liens, charges, or encumbrances. Contractor shall keep vehicle maintenance and use records and shall submit to the City upon request such information as 17 is required in order to assure compliance with this section. Contractor shall immediately notify the City if, during the term of this Lease, any vehicle is not used in the above - described manner, is used in a manner different from that described in this Lease, or is withdrawn from service. Contractor shall not sublease vehicles. F. Maintenance of Vehicles. 1. Contractor shall maintain vehicles in good repair at all times. All services, materials, and repairs required in connection with the use and operation of the vehicles, including but not limited to tires, brake shoes, belts, oil, and other fluids shall be performed at Contractor's sole expense, provided however that if Contractor has maintained the vehicles as required by this Lease, then major repairs to the engine, transmission, and axles over $5,000 shall be at the City's sole expense. A condition inspection shall be conducted by Contractor, or its designated agent, prior to vehicle delivery, and said inspection shall be detailed in writing and agreed to and signed off on by both parties prior to Contractor taking delivery of each vehicle. 2. The City requires the vehicles to be regularly serviced, including routine preventative maintenance every 5,000 miles. At no time will the vehicle maintenance be less than the service recommended by the manufacturer. Contractor will provide the City the mileage for each of the vehicles by the tenth (10th) day of the month following along with copies of weekly vehicle status checklists of the vehicles' fluid levels and tire status. 3. Contractor agrees to inspect and service vehicles and replace parts, if necessary, at intervals and according to the requirements contained in the manufacturer's maintenance schedule with the exception that repairs to the engine, transmission, and axles shall be at the City's sole expense if Contractor has maintained the vehicles as required by this Lease. Contractor shall take the vehicles to an appropriate service and repair facility for any service and repairs required, or use their own facilities if such facilities can be proven to be equivalent to a commercial shop. 4. Maintenance and service records, including original invoices (if applicable), shall be kept on file for each of the vehicles and be provided to the City upon the expiration or termination of this Lease. A copy of the work order shall be submitted to the City after each routine preventive maintenance work performed by Contractor. Copies of other service records shall be provided to the City upon request at any time. 5. Inspections are an important part of each vehicle's maintenance routine. Doing daily, weekly, and monthly inspections will allow early detection of problems. Contractor assumes the responsibility to ensure that scheduled inspections, at a minimum, are performed in accordance with the manufacturer's recommendations. 6. Any modification to the vehicles or the installation of additional equipment that requires mounting must be approved by the City in writing prior to installation. G. Vehicle Appearance and Body Damage. Vehicles must be maintained to have no apparent body or interior damage. 1. Body Damage. All damage to vehicles shall be repaired within thirty (30) days of the occurrence in a high - quality manner. Any deviation from this timeline must be requested in writing from Yakima Transit and approved prior to the expiration of the 30 -day timeline. Body damage repairs include all dents, rips or tears in the body, damage to frame or unit construction, bent or collapsed bumpers, broken or missing lights, glass, windows, windshields, vents, steps, seats, seatbelts, any and all additional accessories added to the vehicle body, inside and out. Body damage shall also include cosmetic 18 repairs, excluding minor door dings. In summary, all damage that could determine an unsafe operational condition for passengers and operator and /or lessen the value of such vehicle or otherwise cause a misrepresentation of the safety, quality and professionalism of the Contractor and City. 2. Maintenance. A. Vehicles utilized to provide service under this agreement shall be kept in optimal operating condition and maintained according to manufacturer's recommendations as a minimum standard to minimize breakdowns and decrease the possibility of accidents. A permanent record shall be kept of all maintenance and repairs. Maintenance records must be available for inspection upon request. B. Vehicles interior and exteriors must be clean and have exteriors free of broken mirrors, windows, grime, rust, chipped paint or major dents which detract from the overall appearance of the vehicle. Vehicle exteriors shall be washed at least twice each week on non - consecutive days and within one day after each rain /snowfall, and before being operated on any day if necessary to maintain a clean appearance. C. The passenger compartments must be clean, dust -free, without torn upholstery or floor coverings, damaged or broken seats and protruding sharp edges. Vehicle interiors shall be swept and emptied of trash at least once daily and windows shall be washed at least once a week. All vehicles shall be detailed thoroughly at least once a month. The interior shall be free of dirt, odors, oil, grease or litter. The seatbelts shall be clean and in proper working order. D. Each vehicle will be expected to be maintained in compliance with the Minimum Periodic Inspection Standards that have been established and that are in compliance with the Federal Motor Carrier Safety Regulations, Pocketbook edition. Contractors are encouraged to obtain a current copy of the Federal Motor Carrier Safety Regulations, Pocketbook edition if they do not already have one. 3. Vehicle Safety Equipment. Service vehicles shall be equipped with the following minimum safety equipment, which shall be the Contractor's sole responsibility, after taking possession of the vehicles: A. Two -way communications with Contractor base station. B. Fire extinguisher, U.L. approved, appropriate for size and type of vehicle. C. First aid kit (approved for capacity of vehicle). D. Sterile gloves and Mouth to Mouth Barriers. E. Reflective triangles or other similar warning device. F. Flashlight. G. Tire chains, sand or other traction devices (seasonal). H. Seatbelt cutters. I. Blood -borne pathogens kit. J. Accident report forms and witness statement forms. K. Secured storage for fare payments. L. The safety equipment shall be properly maintained and kept in fully functional condition. No vehicle shall be used to provide the service without functioning 19 seatbelts (if equipped), passenger lift, vehicle safety equipment, heater, and air conditioning. M. Passenger restraint equipment shall be used in accordance with Washington State law. All passengers in wheelchairs shall be transported facing forward and shall be secured with a minimum four -point ADA- certified securement system, which includes a lap belt capable of being secured to the floor. All seatbelts and mobility device securements must be used in accordance with manufacturers' specifications. N. Passenger lifts shall, at a minimum, meet all ADA requirements including size and lift capacity. Lifts shall be tested to insure ability to lift minimum weight required by the ADA in accordance with federal regulations. 4. Vehicle Inspection. The City retains the right to inspect any and all vehicles utilized in service under this contract (including maintenance and license records) at any time. 5. Failed Vehicle Inspections. If a vehicle fails a vehicle inspection, that vehicle MAY NOT be utilized in for the service until the appropriate repair or correction has been made, the vehicle has been re- inspected and passed. Any vehicle that receives a notation of "Needs Attention" may continue to remain in contract service since the fault is not judged to be a safety issue, however the fault must be corrected before that vehicle is re- inspected in either a scheduled or random inspection. Failure to correct a fault within a reasonable time (20 days) is considered a material breach of the lease. H. Graphics. The vehicle signs /decals shall be installed by City at the City's expense. I. Pick -up of Vehicles. It shall be the responsibility of Contractor to pick up the vehicles at the City's Public Works Facility on or before the date the service is to be provided under the terms of this contract. The vehicles shall have full fuel tanks at the time of pick up. Contractor shall provide proof of insurance at the time of pick up as specified in this Lease. J. Requirements at Expiration or Termination. At the expiration or termination of this Lease, Contractor shall return the vehicles to the location specified by the City with full fuel tanks and with the maintenance records for the rental period including original service and repair invoices or internal work orders. Contractor shall return the vehicles in the same condition as they were in at the inception of the Lease, ordinary wear and tear excepted. In the event a vehicle is not returned in such same condition, ordinary wear and tear excepted, Contractor shall pay the City for the cost of restoring any vehicle to said condition. The City shall charge Contractor its cost of fuel to fill the tank(s) if the tanks are not filled. K. Vehicles Provided "As Is" and "With All Faults." The vehicles that are the subject of this Lease shall be provided on an "AS IS" and "WITH ALL FAULTS" basis. The City makes no warranties of any kind whatsoever, express or implied, as to said vehicles and ALL WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED AND EXCLUDED. Notwithstanding any provision to the contrary, the terms of this section shall survive any expiration or termination of this Lease. A condition inspection shall be conducted by Contractor, or its designated agent, prior to taking delivery of each vehicle and said inspection shall be detailed in writing and agreed to and signed off on by both parties prior to Contractor taking delivery of each vehicle. L. Liability. 1. The City shall not be liable to Contractor or to anyone else for any liability, loss or damage of any kind, however caused or alleged to be caused, directly or indirectly by 20 any of the vehicles; or as a result of the repair, maintenance, or equipment thereof, by any inadequacy thereof, or defect therein or by any incident in connection therewith, or interruption of service or use of any vehicle provided pursuant to this Lease, or from any liability of any nature growing out of performance of this Lease on the part of Contractor, its officers, employees, contractors, or subcontractors unless said liability is caused by the negligence of the City, it's agents, or it's employees. 2. To the maximum extent permitted by law, Contractor shall protect, indemnify, hold harmless and defend the City and its officials, agents, officers, and employees from all claims, actions, costs, damages and expenses of any nature whatsoever, including attorneys' fees, arising out of, resulting from or connected with the acts, errors or omissions of Contractor, its officials, assignees, agents, principals, sublessees, contractors, subcontractors, licensees, invitees, employees, or any person whomsoever under this Lease. 3. In the event that any lien is placed upon property of the City or any of its officers, principals, agents, or employees as a result of the acts, errors or omissions of Contractor or its officials, assignees, agents, sublessees, contractors, subcontractors, licensees, invitees, or employees, Contractor shall at once cause the same to be dissolved and discharged by giving bond or otherwise. The City will be notified in writing immediately of any such lien. Notwithstanding any provision to the contrary, the terms of this section shall survive any expiration or termination of this Lease, M. Insurance. Contractor shall provide Commercial Liability Insurance, Automobile Liability Insurance, and Employment Practices Liability Insurance in accordance with Sections 14, 15 and 16 of the "Ellensburg- Yakima Commuter Service Contract" between the parties executed in conjunction with this Vehicle Lease Agreement. N. Safety. Contractor shall ensure that the vehicles are maintained and operated in a safe and prudent manner and that all drivers comply with existing state, federal, and local laws regarding the operation of motor vehicles on the streets, roads, and highways of the state. Contractor shall comply with all FTA drug and alcohol testing requirements. O. Independent Contractor. Contractor and City understand and agree that Contractor is an independent contractor in the performance of each and every part of this Lease. As such, Contractor and its employees shall make no claim of City employment nor shall claim against the City any related employment benefits, social security, and /or retirement benefits. Nothing contained herein shall be interpreted as creating a servant, employee, partnership, or agency relationship between Contractor and City. P. Remedies Cumulative. All remedies provided in this Lease are distinct and cumulative to any other right or remedy under this Lease or afforded by law or equity and may be exercised independently, concurrently, or successively. Q. No Conflict of Interest. Contractor represents that it does not have any interest and shall not hereafter acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Lease. Contractor further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Lease. R. No City Obligation to Third Parties. No contract between Contractor and its contractors or subcontractors shall create any obligation or liability for the City with regard to this Lease 21 without the City's specific written consent of such obligation or liability, notwithstanding its concurrence in, or approval of, or the awareness of any contract or subcontract or the solicitation thereof. Contractor hereby agrees to include this provision in all contracts it enters into for the employment of any individuals, procurement of any materials, or the performance of any work to be accomplished under this Lease. S. Integration and Supersession. This Lease sets forth all of the terms and conditions relative to the lease of vehicles as provided herein. No amendment or modification of this Lease shall be effective unless reduced to writing and executed by the parties. T. Severability. 1. If a court of competent jurisdiction holds any part, term or provision of this Lease to be illegal, or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Lease did not contain the particular provision held to be invalid. 2. If any provision of this Lease is in direct conflict with any statutory provision of the State of Washington, that provision shall be deemed inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. 3. No controversy concerning any covenant or provision shall delay the performance of any other covenant or provision except as herein allowed. U. Termination. Either party may terminate this Lease with or without cause upon ninety (90) days written notice to the other party. Contractor shall be liable for any payments due up to the effective date of termination. V. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent to the parties to their addresses as follows: TO CITY: TO CONTRACTOR: Ken Mehin, Transit Manager James Pappas, President Yakima Transit HopeSource 3201 Fruitvale Blvd. 700 E Mountain View Ste 501 Yakima, WA 98901 Ellensburg, WA 98926 or to such other addresses as the parties may hereafter designate in writing. Notices and /or demands shall be sent by registered or certified mail, postage prepaid or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. W. Non - Waiver. The waiver by Contractor or the City of the breach of any provision of this Lease by the other party shall not operate or be construed as a waiver of any subsequent breach by either party or prevent either party from thereafter enforcing any such provision. X. Survival. Any provision of this Lease that imposes an obligation after termination or expiration of this Lease shall survive the term or expiration of this Lease and shall be binding on the parties to this Lease Y. Governing Law. This Lease shall be governed by and construed in accordance with the laws of the State of Washington 22 Z. Venue. The venue for any action to enforce or interpret this Lease shall lie in the Superior Court of Washington for Kittitas County, Washington AA.Authority. The person executing this Lease on behalf of Contractor represents and warrants that they are fully authorized by Contractor to execute this Lease on its behalf and to legally bind Contractor to all terms, performances, and provisions of this Lease. BB.Attorney Fee Provision. If a party is required to bring or maintain any action which refers this document to an attorney for the enforcement of any of the terms and conditions of this Lease, the prevailing party in such action shall, in addition to all other payments required, receive from the other all the costs incurred by the prevailing party, including reasonable attorney fees and such costs and reasonable attorney fees which the prevailing party may incur on any appeal. CC. Execution. CITY OF YAKIMA HOPESOURCE By: // By: •onald B. Cooper, t ty Manager James Pappas, President Dated: /i7 (ii/ Dated: (Dla 41 - >D 6r ;( ►k ATTEST: �� *® .' ► , AL By: &LL ' ' � •. i 1 Date: / y 29 / /i Deborah K. Kloster, , M I N07 o _ City Contract No. dal Resolution No. 2 - a01I -IS/ LEASED VEHICLE LIST Veh. ID Year Make Model VIN Lift Equip. Active TBD 2003 Ford E -450 1 FDXE45S83HA90453 Yes Vehicles TBD 2003 Ford E-450 1 FDXE45SX3HA90454 Yes TBD Bus Yes TBD Bus Yes Spare 3256 2001 Ford E -450 SD 1 FDFE45S89DA90674 Yes Vehicles 3257 2001 Ford E -450 SD 1 FDXE45F91 HA88047 Yes 3258 2001 Ford E -450 SD 1 FDXE45F71 HB88048 Yes 23 Exhibit B - ELLENSBURG COMMUTER SERVICE SCHEDULE Exhibit B Ellensburg- Yakima Commuter Service Schedule Northbound Departure Location - Yakima 1 2 3 4 5 6 7 8 Perry Techical College /Airport 6:25 AM 7:55 AM 9:25 AM 10:55 AM 12:55 PM 2:25 PM 3:55 PM 5:25 PM Yakima Valley Community College 6:35 AM 8:05 AM 9:35 AM 11:05 AM 1:05 PM 2:35 PM 4:05 PM 5:35 PM Yakima Transit Center 6:45 AM 8:15 AM 9:45 AM 11:15 AM 1:15 PM 2:45 PM 4:15 PM 5:45 PM Yakima Firing Center (Selah) 7:00 AM 8:30 AM 10:00 AM 11:30 AM 1:30 PM 3:00 PM 4:30 PM 6:00 PM Ellensburg (southside) 7:25 AM 8:55 AM 10:25 AM 11:55 AM 1:55 PM 3:25 PM 4:55 PM 6:25 PM Central Washington University 7:40 AM 9:10 AM 10:40 AM 12:10 PM 2:10 PM 3:40 PM 5:10 PM 6:40 PM Southbound Departure Location - Ellensburg 1 2 3 4 5 6 7 8 Central Washington University 6:15 AM 7:45 AM 9:15 AM 10:45 AM 12:45 PM 2:15 PM 3:45 PM 5:15 PM Ellensburg (southside) 6:30 AM 8:00 AM 9:30 AM 11:00 AM 1:00 PM 2:30 PM 4:00 PM 5:30 PM Yakima Firing Center ( Selah) 7:00 AM 8:30 AM 10:00 AM 11:30 AM 1:30 PM 3:00 PM 4:30 PM 6:00 PM Yakima Transit Center 7:15 AM 8:45 AM 10:15 AM 11:45 AM 1:45 PM 3:15 PM 4:45 PM 6:15 PM Yakima Valley Community College 7:25 AM 8:55 AM 10:25 AM 11:55 AM 1:55 PM 3:25 PM 4:55 PM 6:25 PM Perry Techical College /Airport 7:30 AM 9:00 AM 10:30 AM 12:00 PM 2:00 PM 3:30 PM 5:00 PM 6:30 PM 24 Exhibit C - CONSOLIDATED GRANT CONTRACT 25 Federal/State Operating Grant Agreement Washington State Department of Transportation Contractor: Public Transportation Division HopeSource 310 Maple Park Avenue SE 700 E. Mountainview Ave, Suite 501 PO Box 47387 Ellensburg, WA 98073 Olympia, WA 98504 -7387 WSDOT Contact: Tom Hanson 509- 667 -3029 Contact Person: Geoff Crump 509- 925 -1448 Term of Project: July 1, 2011 through June 30, 2013 Federal ID #: SW00029540 0 Scope of Project: Scope of Project as set forth in Project Title: Operating funding assistance as . Exhibit I, Scope of Work and Budget. described in Exhibit I, Scope of Work and Budget CFDA: 20.509 (5311' Service Area: As defined in attached Exhibit I Project Costs: Federal Funds $66,000 State Funds $132,000 Agreement Number: UCB1001 Contractor Funds $264,000 Total Project Cost $462,000 THIS AGREEMENT, entered into by the Washington State Department of Transportation, hereinafter "WSDOT," and the above Contractor, hereinafter "CONTRACTOR," individually the "PARTY" and collectively the "PARTIES," WITNESSETH THAT: WHEREAS, Federal funding is authorized under 49 USC chapter 53; Title 23 USC (Highways); the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFE1EA -LU) enacted as Public Law 109 -59, August 10, 2005; as amended by SAFETEA -LU Technical Corrections Act, 2008, Pub. L. 110 -244, June 6, 2008; the Transportation Equity Act for the 21st Century (TEA -21) enacted as Public law 105 -178, June 9, 1998, as amended, the National Capital Transportation Act of 1969, D.C. Official Code, §§ 9- 1111.01 et seq.; or other Federal laws the Federal Transit Administration (FTA) administers to the extent FTA so determines; WHEREAS, the State of Washington in its Sessions Laws of 2011, chapter 367, section 220 provides Rural Mobility, Paratransit/Special Needs, and other special proviso funding through the multi -modal transportation account and rural mobility grant program account, as identified in the budget through its 2011 -2013 biennial appropriations to WSDOT; WHEREAS, funding is authorized under 49 USC § 5311; and any subsequent amendments and resolutions thereto; WHEREAS, WSDOT's Public Transportation Division administers the Rural Mobility Grant Program funds to provide transportation related support of persons in non - urbanized and small urban areas; NOW, THEREFORE, in consideration of the terms, conditions, performances and mutual covenants herein set forth and the attached Exhibit I "Scope of Work and Budget," IT IS MUTUALLY AGREED AS FOLLOWS: • UCB1001 Page 1 of 19 Section 1 Purpose of Agreement The purpose of this AGREEMENT is for WSDOT to provide operating funds to the CONTRACTOR for public transportation services that meet the needs of persons in the State of Washington, hereinafter referred to as the "Project" Section 2 Scope of Project The CONTRACTOR shall undertake and complete the Project as detailed in Exhibit I, "Scope of Work and Budget", which is by this reference fully incorporated herein as if fully set out in this AGREEMENT, and to operate the service within the area described in the caption space header titled "Service Area," in accordance with the terms and conditions of this AGREEMENT. The caption space header titled "Service Area" and all caption space headers are by this reference incorporated herein as if fully set out in this AGREEMENT. Section 3 Term of Project The CONTRACTOR shall commence, perform, and complete the Project within the period of time defined in the caption space header titled "Term of Project" on this AGREEMENT regardless of the date of signature and execution of this AGREEMENT, unless terminated as provided herein. Section 4 Contractor's Share of Project Costs The total Project cost shall not exceed the amounts detailed in the caption space header titled "Project Costs." The CONTRACTOR agrees to expend eligible funds, together with any "Contractor Funds" allocated for the Project in an amount sufficient to complete the Project as detailed in Exhibit 1, "Scope of Work and Budget." The CONTRACTOR further agrees that there shall be no reduction in any amount specified as the Contractor's Funds unless there is a concurrent proportional reduction in the Federal and /or State Funds, or WSDOT pre- approves the reduction in writing. If at any time the CONTRACTOR becomes aware that the cost which it expects to incur in the performance of this AGREEMENT will exceed or be less than the amount identified as "Total Project Cost" in the caption space header titled "Project Costs," the CONTRACTOR shall notify WSDOT in writing within three (3) business days of making that determination. The CONTRACTOR agrees that "Project Costs" eligible for federal participation, including State Funds and Contractor Funds used as match to other FTA funds, must comply with the standards of OMB Circular A -87, Revised, "Cost Principles for State and Local Governments ", or OMB Circular A- 122, Revised, "Cost Principles for Non - Profit Organizations ", or Federal Acquisition Regulation (FAR), 48 CFR Chapter 1, subpart 31.2, "Contracts with Commercial Organizations," whichever is appropriate. Section 5 Payment A. WSDOT, using FTA funds and /or State funds, shall reimburse the CONTRACTOR for allowable expenses incurred in completing the Project described in Exhibit I, "Scope of Work and Budget." Allowable Project expenses shall be determined by WSDOT as described in WSDOT's Guide to Managing Your Public Transportation Grant 2011 version, and any amendments thereto, which by this reference is fully incorporated herein. In no event shall the total amount reimbursed by WSDOT exceed the "Federal Funds" or "State Funds" identified in the caption space header titled "Project Costs," above. B. Payment will be made by WSDOT on a reimbursable basis for actual net project costs incurred within the timeframe in the caption space header titled "Term of Project." Such costs to be reimbursed shall be calculated as described in WSDOT's Guide to Managing Your Public Transportation Grant, 2011 version, and any amendments thereto. WSDOT shall make no payments for costs incurred prior to the beginning date or after the ending date shown. The CONTRACTOR shall submit an invoice detailing and supporting the costs incurred: Such invoices may be submitted no more than once a month and no less than once per quarter. If approved by WSDOT, said invoices shall be paid by WSDOT within thirty (30) days of receipt of the invoice. Payment is subject to the submission to and approval by WSDOT of appropriate invoices, reports, and financial summaries. Any financial summaries submitted to WSDOT must include a record of the actual costs. C. The CONTRACTOR shall submit an invoice by July 15, 2012, for any unreimbursed eligible expenditures incurred between July 1, 2011, and June 30, 2012. If the CONTRACTOR is unable to provide an invoice by this date, the CONTRACTOR shall provide an estimate of the charges to be billed so WSDOT may accrue the expenditures in the proper fiscal period. Any subsequent reimbursement request submitted will be limited to the amount accrued as set forth in this section. The CONTRACTOR' s final payment request must be received by WSDOT by July 15, 2013, within thirty (30) days of the completion of the Project, or within thirty (30) days of the UCB 1001 Page 2 of 19 termination of this AGREEMENT, whichever is sooner. Any payment request received after July 15, 2013 will not be eligible for reimbursement. Section 6 Assignments and Subcontracts A. Unless otherwise authorized in advance and in writing by WSDOT, the CONTRACTOR will not assign any portion of the Project or execute any contract, amendment, or change order thereto, or obligate itself in any manner with any third party with respect to its rights and responsibilities under this AGREEMENT. B. The CONTRACTOR agrees to include sections 8 through 26 and Section 34 of this AGREEMENT in each subcontract financed in whole or in part with federal assistance provided by FTA; and in all contracts it enters into for the employment of any individuals, procurement of any materials, or the performance of any work to be accomplished under this AGREEMENT, subject to the limitations set forth in Sections I9.E.3 of this AGREEMENT. It is further agreed that those clauses shall not be modified in any such subcontract, except to identify the subcontractor or other person or entity that will be subject to its provisions. In addition, the following provision shall be included in any advertisement or invitation to bid for any procurement by the CONTRACTOR under this AGREEMENT: Statement of Financial Assistance: "This AGREEMENT is subject to a financial assistance contract between the Washington State Department of Transportation and the Federal Transit Administration and the appropriations of the State of Washington." Section 7 Reports A. The CONTRACTOR shall prepare quarterly reports regarding services provided pursuant to this AGREEMENT and other related information as prescribed in WSDOT's Guide to Managing Your Transportation Grant, 2011 version, and any amendments thereto, or as requested by WSDOT. Due to Legislative and Department reporting requirements, quarterly progress reports shall be submitted for the duration of the AGREEMENT period regardless of whether the underlying funding sources have been exhausted. Post -grant annual performance reporting may also be required as prescribed in the aforementioned guidebook. These reports may include, but are not limited to: 1. Passenger Trips provided 2. Project Revenue Hours provided 3. Project Revenue Miles provided 4. Narrative Progress Report 5. Financial status of the project 6. Drug Abuse and Alcohol Abuse Testing compliance reports as required in this AGREEMENT 7. Goods and services purchased from Disadvantaged Business Enterprises (DBE's) B. Program Income. The CONTRACTOR shall comply with Program Income provisions in 49 CFR § 18.25 or 49 CFR § 19.24, whichever is applicable, and prepare a quarterly report of the gross income, as defined in WSDOT's Guide to Managing Your Public Transportation Grant, 2011 version, and any amendments thereto received by CONTRACTOR that is directly generated by the Project activity supported by the funding in this AGREEMENT. Section 8 • General Compliance Assurance The CONTRACTOR agrees to give reasonable guarantees that it and its subcontractors, lessees and any third -party contractors under this AGREEMENT, will comply with all requirements imposed by, or pursuant to, 49 USC chapter 53 and other applicable Federal regulations. The CONTRACTOR agrees to comply with the provisions of 49 CFR Part 18 or 49 CFR Part 19 or FAR, 48 CFR Chapter 1, subpart 31 whichever is applicable, and cost principles as defined in OMB circulars A -87 and A -122. The CONTRACTOR agrees to comply with all instructions as prescribed in WSDOT's Guide to Managing Your Public Transportation Grant, 2011 version, and any amendments thereto. The CONTRACTOR agrees that the United States, any agency thereof, WSDOT and any of WSDOT's representatives, have not only the right to monitor the compliance of the CONTRACTOR with the provisions of this Assurance, but also have the right to seek judicial enforcement with regard to any matter arising under Federal transit laws and regulations, and this Assurance. Section 9 Procurement The CONTRACTOR shall make purchases of any incidental goods or supplies essential to this AGREEMENT through procurement procedures approved in advance by WSDOT and consistent with the following provisions: UCB1001 Page 3 of 19 A. General Procurement Requirements. The CONTRACTOR shall comply with third -party procurement requirements of 49 USC chapter 53 and other applicable Federal laws in effect now or as subsequently enacted; with the United States Department of Transportation (U.S. DOT) third -party procurement regulations of 49 CFR § 18.36 or 49 CFR § I9.40 through 19.48 and other applicable Federal regulations pertaining to third -party procurements and subsequent amendments thereto. The CONTRACTOR shall also comply with the provisions of FTA Circular 4220.1F, "Third Party Contracting Guidance," November 1, 2008, and any later revision thereto, except to the extent FTA determines otherwise in writing, which by this reference are incorporated herein; and any reference therein to "Grantee" shall mean CONTRACTOR. B. Full and Open Competition. In accordance with 49 USC § 5325(a), the CONTRACTOR agrees to conduct all procurement transactions in a manner that provides full and open competition as determined by FTA. C. Preference for United States Products and Services. To the extent applicable, the CONTRACTOR agrees to comply with the following U.S. preference requirements: 1. Buy America. The CONTRACTOR agrees to comply with 49 USC § 5323(j), with FTA regulations, "Buy America Requirements," 49 CFR Part 661, and any later amendments thereto. 2. Cargo Preference —Use of United States -Flag Vessels. The CONTRACTOR agrees to comply with 46 USC § 55305 and U.S. Maritime Administration regulations, "Cargo Preference — U.S. -Flag Vessels," 46 CFR Part 381, to the extent those regulations apply to the Project. 3. Fly America. The CONTRACTOR understands and agrees that the Federal Government will not participate in the costs of international air transportation of any persons involved in or property acquired for the Project unless that air transportation is provided by U.S. -flag air careers to the extent service by U.S. -flag air carriers is available, in accordance with the International Air Transportation Fair Competitive Practices Act of 1974, as amended, 49 USC § 40118, and with U.S. GSA regulations, "Use of United States Flag Air Carriers," 41 CFR §§ 301 - 10.131 through 301 - 10.143. D. Preference for Recycled Products. To the extent applicable, The CONTRACTOR agrees to comply with U.S. Environmental Protection Agency (U.S. EPA), "Comprehensive Procurement Guideline for Products Containing Recovered Materials ", 40 CFR Part 247, which implements section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 as amended, 42 USC § 6962. Accordingly, the CONTRACTOR agrees to provide a competitive preference for products and services that conserve natural resources, protect the environment, and are energy efficient, except to the extent that the Federal Government determines otherwise in writing. E. Geographic Restrictions. The CONTRACTOR agrees to not use any state or local geographic preference, except those expressly mandated or encouraged by federal statute or as permitted by FTA. F. Government Orders. In case any lawful government authority shall make any order with respect to the Project or Project Equipment, or any part thereof, or the PARTIES hereto or either PARTY, the CONTRACTOR shall cooperate with WSDOT in carrying out such order and will arrange its operation and business so as to enable WSDOT to comply with the terms of the order. Section 10 Charter Service Operations The CONTRACTOR agrees that neither it nor any public transportation operator performing work in connection with a Project financed under 49 USC chapter 53 or under 23 USC §§ 133 or 142, will engage in charter service operations, except as authorized by 49 USC § 5323(d) and FTA regulations, "Charter Service," 49 CFR Part 604, and any Charter Service regulations or FTA directives that may be issued, except to the extent that FTA determines otherwise in writing. The Charter Service Agreement the CONTRACTOR has selected in its latest annual Certifications and Assurances is incorporated by reference and made part of the Grant Agreement or Cooperative Agreement for the Project. If the CONTRACTOR has failed to select the Charter Service Agreement in its latest annual Certifications and Assurances to FTA and does conduct charter service operations prohibited by FTA's Charter Service regulations, the CONTRACTOR understands and agrees that: (1) the requirements of FTA's Charter Service regulations and any amendments thereto will apply to any charter service it or its subrecipients, lessees, third -party contractors, or other participants in the Project provide; (2) the definitions of FTA's Charter Service regulations will apply to the CONTRACTOR's charter operations, and (3) a pattern of violations of FTA's Charter Service regulations may require corrective measures and imposition of remedies, including barring the CONTRACTOR, subrecipient, lessee, third -party contractor, or other participant in the Project operating public transportation under the Project from receiving Federal financial assistance from FTA, or withholding an amount of Federal assistance as set forth in Appendix D to ETA's Charter Service regulations. UCB 1001 Page 4 of 19 Section 11 School Bus Operations The CONTRACTOR agrees that neither it nor any public transportation operator performing work in connection . with a Project financed under 49 USC chapter 53 or under 23 USC §§ 133 or 142, will engage in school transportation operations for the transportation of students or school personnel exclusively in competition with private school transportation operators, except as authorized by 49 USC §§ 5323(f) or (g), as applicable, and FTA regulations, "School Bus Operations," 49 CFR Part 605 to the extent consistent with 49 USC §§ 5323(f) or (g), in accordance with any School Transportation Operations regulations or FTA directives that may be issued at a later date, except to the extent that FTA determines otherwise in writing. The School Transportation Operations Agreement the CONTRACTOR has selected in its latest annual Certifications and Assurances is incorporated by reference and made part of the Grant Agreement or Cooperative Agreement for the Project. If the CONTRACTOR has failed to select the School Transportation Agreement in its latest annual Certifications and Assurances to FTA and does conduct school transportation operations prohibited by FTA's School Bus Operations regulations, 49 CFR Part 605, to the extent those regulations are consistent with 49 USC §§ 5323(0 or (g), the CONTRACTOR understands and agrees that (1) the requirements of FTA's School Bus Operations regulations, 49 CFR Part 605, to the extent consistent with 49 USC §§ 5323(f) or (g), will apply to any school transportation service it or its subrecipients, lessees, third -party contractors, or other participants in the project provide, (2) the definitions of FTA's School Bus Operations regulations will apply to the CONTRACTOR's school transportation operations, and (3) if there is a violation of FTA's School Bus Operations regulations to the extent consistent with 49 USC §§ 5323(0 or (g), FTA will bar the CONTRACTOR, subrecipient, lessee, third -party contractor, or other Project participant operating public transportation that has violated FTA's School Bus Operations regulations, 49 CFR Part 605, to the extent consistent with 49 USC §§ 5323(0 or (g), from receiving Federal transit assistance in an amount FTA considers appropriate. Section 12 Incorporation of Federal Terms A. Purchasing. This AGREEMENT's provisions include, in part, certain Standard Terms and Conditions required by FTA, whether or not expressly set forth herein. All contractual provisions required by FTA, as set forth in FTA Circular 4220.1F, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this AGREEMENT. The CONTRACTOR shall not perform any act, fail to perform any act, or refuse to comply with any WSDOT request, which would cause WSDOT to be in violation of any FTA term or condition. B. Federal Changes. The CONTRACTOR shall at all times comply with all applicable FTA regulations, policies, procedures and directives, whether or not they are referenced in this AGREEMENT and include any amendments promulgated by the FTA, during the term of this AGREEMENT. The CONTRACTOR's failure to so comply shall constitute a material breach of this AGREEMENT. Section 13 No Obligation by the Federal Government A. WSDOT and the CONTRACTOR acknowledge and agree that regardless of any concurrence or approval by the Federal Government of the solicitation or award of this AGREEMENT, the Federal Government is not a party to this AGREEMENT unless it provides its express written consent. The Federal Government shall not be subject to any obligations or liabilities to the CONTRACTOR, subcontractor, lessee, or any other participant at any tier of the project (whether or not a PARTY to this AGREEMENT) pertaining to any matter resulting from this AGREEMENT. B. No contract between the CONTRACTOR and its subcontractors, lessees, or any other participant at any tier of the project shall create any obligation or liability of WSDOT with regard to this AGREEMENT without WSDOT's specific written consent, notwithstanding its concurrence in, or approval of, the award of any contract or subcontract or the solicitations thereof. The CONTRACTOR hereby agrees to include this provision in all contracts it enters into for the employment of any individuals, procurement of any materials, or the performance of any . work to be accomplished under this AGREEMENT. Section 14 Personal Liability of Public Officers No officer or employee of WSDOT shall be personally liable for any acts or failure to act in connection with this AGREEMENT, it being understood that in such matters they are acting solely as agents of WSDOT. UCB 1001 Page 5 of 19 • Section 15 Ethics A. Code of Ethics. The CONTRACTOR agrees to maintain a written code or standards of conduct that shall govern the performance of its officers, employees, board members, or agents engaged in the award and administration of contracts, subagreements, leases, third-party contracts, or other arrangements supported by federal assistance. The code or standards shall provide that the CONTRACTOR's officers, employees, board members, or agents may neither solicit nor accept gratuities, favors, or anything of monetary value from any present or potential subcontractor, lessee, sub - recipient, or participant at any tier of the Project, or agent thereof. The CONTRACTOR may set de minimis rules where the financial interest is not substantial, or the gift is an unsolicited item of nominal intrinsic value. These codes or standards shall prohibit the CONTRACTOR's officers, employees, board members, or agents from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest or personal gain. As permitted by state or local law or regulations, such code or standards shall include penalties, sanctions, or other disciplinary actions for violations by the CONTRACTOR's officers, employees, board members, or agents, or by subcontractors, lessees, sub - recipients, other participants, or their agents. The CONTRACTOR must fully comply with all the requirements and obligations of chapter 42.52 RCW that govern ethics in state and local governments. 1. Personal Conflict of Interest. The CONTRACTOR's code or standards shall prohibit the CONTRACTOR's employees, officers, board members, or agents from participating in the selection, award, or administration of a contract supported by Federal Funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when any of the PARTIES set forth below has a financial or other interest in the firm or entity selected for award: a. The employee, officer, board member, or agent; b. Any member of his or her immediate family; c. His or her partner; or d. An organization that employs, or is about to employ, any of the above. 2. Organizational Conflict of Interest. The CONTRACTOR's code or standard of conduct must include procedures for identifying and preventing real and apparent organizational conflicts of interest. An organizational conflict of interest exists when the nature of the work to be performed under a proposed third -party contract, subagreement, lease, or other arrangement at any tier may, without some restrictions on future activities, result in an unfair competitive advantage to the subrecipient, lessee, third -party contractor, or other participant ant any tier of the Project or impair its objectivity in performing the work under this AGREEMENT. B. Debarment and Suspension. The CONTRACTOR agrees to comply, and assures the compliance of each sub - recipient, lessee, third -party contractor, or other participant at any tier of the project, with the requirements of Executive Orders Numbers 12549 and 12689, "Debarment and Suspension, "31 USC § 6101 note, and U.S. DOT regulations, "Non- procurement Suspension and Debarment" 2 CFR Part 1200, which adopts and supplements the provisions of U.S. Office of Management and Budget (U.S. OMB) "Guidelines to Agencies on Governmentwide Debarment and Suspension (Non- procurement)," 2 CFR Part 180. The CONTRACTOR agrees to, and assures that its subrecipients, lessees, third -party contractors, and other participants at any tier of the Project will, review the "Excluded Parties Listing System" at http: / /epls.gov/ before entering into any third subagreement, lease, third -party contract, or other arrangement in connection with the Project, and will include a similar term or condition in each of its lower -tier covered' transactions. C. Bonus or Commission. The CONTRACTOR affirms that it has not paid, and agrees not to pay, any bonus or commission to obtain approval of its application for federal financial assistance for this Project. D. Relationships with Employees and Officers of WSDOT. The CONTRACTOR shall not extend any loan, gratuity or gift of money in any form whatsoever to any employee or officer of WSDOT, nor shall the CONTRACTOR rent or purchase any equipment and materials from any employee or officer of WSDOT. E. Employment of Former WSDOT Employees. The CONTRACTOR hereby warrants that it shall not engage on a full -time, part-time, or other basis during the period of this AGREEMENT, any professional or technical personnel who are, or have been, at any time during the period of this AGREEMENT, in the employ of WSDOT without written consent of WSDOT. F. Restrictions on Lobbying. The CONTRACTOR agrees to: UCB 1001 Page 6 of 19 1. Comply with 31 USC § 1352(a) and will not use Federal assistance to pay the costs of influencing any officer or employee of a Federal agency, Member of Congress, officer of Congress or employee of a member of Congress, in connection with making or extending the Grant AGREEMENT or Cooperative Agreement; and 2. Comply, and assure compliance by each subcontractor at any tier, each lessee at any tier and each sub - recipient at any tier, with applicable requirements of U.S. DOT regulations, "New Restriction on Lobbying," 49 CFR Part 20, modified as necessary by 31 USC § 1352; and 3. Comply with federal statutory provisions to the extent applicable prohibiting the use of Federal assistance Funds for activities designed to influence Congress or a state Iegislature on legislation or appropriations, except through proper, official channels. G. Employee Political Activity. To the extent applicable, the CONTRACTOR agrees to comply with the provisions of the Hatch Act, 5 USC §§ 1501 through 1508, and §§ 7324through 7326, and Office of Personnel Management regulations, "Political Activity of State or Local Officers or Employees," 5 CFR Part 151. The Hatch Act limits the political activities of state and local agencies and their officers and employees, whose principal employment activities are financed in whole or in part with Federal Funds including a loan, grant, or cooperative agreement. Nevertheless, in accordance with 49 USC § 5307 (k)(2)(B) and 23 USC § 142(g), the Hatch Act does not apply to a non - supervisory employee of a public transportation system (or of any other agency or entity performing related functions) receiving assistance pursuant to the SAFETEA -LU provisions and/or receiving FTA assistance to whom the Hatch Act does not otherwise apply. H. False or Fraudulent Statements or Claims. The CONTRACTOR acknowledges and agrees that: 1. Civil Fraud: The Program Fraud Civil Remedies Act of 1986, as amended, 31 USC §§ 3801 et seq., and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 CFR Part 31, apply to its activities in connection with the Project. Accordingly, by executing this AGREEMENT, the CONTRACTOR certifies or affirms the truthfulness and accuracy of each statement it has made, it makes, or it may make in connection with the Project covered by this AGREEMENT. In addition to other penalties that may apply, the CONTRACTOR also acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986, as amended, on the CONTRACTOR to the extent the Federal Government deems appropriate. 2. Criminal Fraud: If the CONTRACTOR makes a false, fictitious, or fraudulent claim, statement, submission, certification, assurance, or representation to the Federal Government or includes a false, fictitious, or fraudulent statement or representation in any agreement in connection with this Project authorized under 49 USC Chapter 53 or any other federal law, the Federal Government reserves the right to impose on the CONTRACTOR the penalties of 49 USC §5323(1), 18 USC § 1001 or other applicable Federal law to the extent the Federal Government deems appropriate. 1. Trafficking in Persons. To the extent applicable, the CONTRACTOR agrees to comply with, and assures the compliance of each subrecipient with, the requirements of the subsection 106(g) of the Trafficking Victims Protection Act of 2000 (TVPA), as amended, 22 USC § 7104(g), and the provisions of this Subsection 3.g of FTA Master Agreement (17) dated October 1, 2010, which by this reference is incorporated herein as if fully set out in this AGREEMENT, and any amendments thereto, which is accessible at h . : l /www.fta.dot._ov /documents/TEAM Master A eement 2011_17- Master..df consistent with U.S. OMB guidance, "Trafficking in Persons: Grants and Cooperative Agreements," 2 CFR Part 175. Section 16 Compliance with Laws and Regulations The CONTRACTOR agrees to abide by all applicable state and federal laws and regulations including but not limited to, those concerning employment, equal opportunity employment, nondiscrimination assurances, Project record keeping necessary to evidence compliance, with such federal and state laws and regulations, and retention of all such records. The CONTRACTOR will adhere to all of the nondiscrimination provisions in chapter 49.60 RCW. Section 17 Civil Rights The CONTRACTOR shall comply with all applicable civil rights laws, regulations and directives, except to the extent that the Federal Government determines otherwise in writing. These include, but are not limited to, the fo I lowing: A. Nondiscrimination in Federal Transit Programs. The CONTRACTOR agrees to comply, and assures compliance by each third-party contractor, lessee or other participant at any tier, with the provisions of 49 USC § UCB 1001 Page 7 of 19 5332, which prohibits discrimination on the basis of race, color, creed, national origin, sex, or age, and prohibits discrimination in employment or business opportunity; B. Nondiscrimination -Title VI of the Civil Rights Act. The CONTRACTOR agrees to comply, and assure compliance by each third -party contractor at any tier, with all provisions prohibiting discrimination on the basis of race, color, or national origin of Title VI of the Civil Rights Act of 1964, as amended, 42 USC §§ 2000d et seq.; and U.S. DOT regulations, "Nondiscrimination in Federally - Assisted Programs of the Department of Transportation- - Effectuation of Title VI of the Civil Rights Act", 49 CFR Part 21. Except to the extent FTA determines otherwise in writing, the CONTRACTOR also agrees to follow all applicable provisions of the most recent edition of FTA Circular 4702.1A, "Title VI and Title VI- Dependent Guidelines for Federal Transit Assistance Recipients," and any other applicable Federal directives that may be issued; C. Equal Employment Opportunity. The CONTRACTOR agrees to comply, and assures compliance by each third -party contractor, lessee or other participant at any tier of the Project, with all equal employment opportunity (EEO) provisions of 49 USC §5332, with requirements of Title VII of the Civil Rights At of 1964, as amended, 42 USC § 2000e et seq., and any implementing Federal regulations and any subsequent amendments thereto. Except to the extent FTA determines otherwise in writing, the CONTRACTOR also agrees to comply with any applicable Federal EEO directives that may be issued. Accordingly: 1. The CONTRACTOR agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, sex, disability, age, or national origin. The CONTRACTOR agrees to take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, creed, sex, disability, age, or national origin. Such action shall include, but not be limited to, employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The CONTRACTOR shall also comply with any implementing requirements FTA may issue. 2. If the CONTRACTOR is required to submit and obtain Federal Government approval of its EEO program, that EEO program approved by the Federal Government is incorporated by reference and made part of this AGREEMENT. Failure by the CONTRACTOR to carry out the terms of that EEO program shall be treated as a violation of this AGREEMENT. Upon notification to the CONTRACTOR of its failure to carry out the approved EEO program, the Federal Government may impose such remedies, as it considers appropriate, including termination of federal financial assistance, or other measures that may affect the CONTRACTOR's eligibility to obtain future federal financial assistance for transportation projects. D. Nondiscrimination on the Basis of Sex. The CONTRACTOR agrees to comply with all applicable requirements of Title IX of the Education Amendments of 1972, as amended, 20 USC §§ 1681 et seq. and with any implementing Federal regulations that prohibit discrimination on the basis of sex that may be applicable. E. Nondiscrimination on the basis of Age. The CONTRACTOR agrees to comply with applicable requirements of: 1. The Age Discrimination Act of 1975, as amended, 42 USC §§ 6101 et seq., and with implementing U.S. Health and Human Services regulations, "Nondiscrimination on the Basis of Age in Programs and Activities Receiving Federal Financial Assistance ", 45 CFR Part 90, which prohibits discrimination on the basis of age. 2. The Age Discrimination in Employment Act (ADEA) 29 USC §§ 621 through 634 and with implementing U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, "Age Discrimination in Employment Act" 29 CFR Part 1625. F. Disabilities - Employment. In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 USC § 12112, the CONTRACTOR agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630, pertaining to employment of persons with disabilities. In addition, the CONTRACTOR agrees to comply with any implementing requirements FTA may issue. G. Disabilities- Access. The CONTRACTOR agrees to comply with the requirements of 49 USC § 5301(d) which state the Federal policy that the elderly and persons with disabilities have the same rights as other persons to use mass transportation service and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement said policy. The CONTRACTOR also agrees to comply with all applicable requirements of section 504 of the Rehabilitation Act of 1973, as amended, 29 USC § 794, which prohibit discrimination on the basis of handicap; with the Americans with Disabilities Act of 1990 (ADA), as amended, 42 USC §§ 12101 et seq., which requires the provision of accessible facilities and services to be made available to persons with disabilities; and the Architectural Barriers Act of 1968, as amended, 42 USC §§ 4151 et seq, which UCB1001 Page 8 of 19 requires that buildings and public accommodations be accessible to persons with disabilities and with other laws and amendments thereto pertaining to access for individuals with disabilities that may be applicable. In addition, the Recipient agrees to comply with applicable implementing Federal regulations and any later amendments thereto, and agrees to follow applicable Federal directives except to the extent FTA approves otherwise in writing. Among those regulations and directives are the following: U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 CFR Part 37; U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance," 49 CFR Part 27; Joint U.S. Architectural and Transportation Barriers Compliance Board U.S. DOT regulations; "Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 CFR Part 1192 and 49 CFR Part 38; U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 CFR Part 35; U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 CFR Part 36; U.S. GSA regulations, "Accommodations for the Physically Handicapped," 41 CFR Subpart 101 -19; U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630; U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Custom Premises Equipment for the Hearing and Speech Disabled," 47 CFR Part 64, Subpart F; U.S. Architectural and Transportation Barriers Compliance Board (ATBCB) regulations, "Electronic and Information Technology Accessibility Standards" 36 CFR Part 1194; FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 CFR Part 609; and Federal civil rights and nondiscrimination directives implementing the foregoing regulations, except to the extent the Federal Government determines otherwise in writing. G. Drug or Alcohol Abuse. Confidentiality and Other Civil Rights Protections. The CONTRACTOR agrees to comply with the confidentiality and other civil rights provisions of the Drug Abuse Office and Treatment Act of 1972, as amended 21 USC §§ 1101 et seq.; with the Comprehensive AIcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, as amended; 42 USC §§ 4541 et seq.; and comply with the Public Health Service Act of 19I2, as amended, 42 USC §§ 290dd through 290dd -2, and any amendments to these laws. The CONTRACTOR understands the requirements of confidentiality concerning persons covered and/or receiving services and/or treatment regarding alcohol and drug abuse, as defined in the aforementioned acts as applicable, including any civil and criminal penalties for not complying with the requirements of confidentiality and that failure to comply with such requirements may result in termination of this AGREEMENT. H. Access to Services for Persons with Limited English Proficiency. The CONTRACTOR agrees to comply with the policies of Executive Order No. 13166, "Improving Access to Services for Persons with Limited English Proficiency," 42 USC § 2000d -1 note, and with provisions of U.S. DOT Notice "DOT Policy Guidance Concerning Recipients' Responsibilities to Limited English Proficiency (LEP) Persons," 70 Fed. Reg. 74087, December 14, 2005. I. Environmental Justice. The CONTRACTOR agrees to comply with the policies of Executive Order No. 12898, "Federal Actions to Address Environmental Justice in Minority populations and Low - Income Populations ", 42 USC § 4321 note; and DOT Order 5620.3, "Department of Transportation Actions to address Environmental Justice in Minority Populations and Low - Income Populations," 62 Fed. Reg. 18377 et seq., April 15, 1997, except to the extent that the Federal Government determines otherwise in writing. J. Other Nondiscrimination Statutes. The CONTRACTOR agrees to comply with all applicable provisions of other Federal laws, regulations, and directives pertaining to and prohibiting discrimination and other nondiscrimination statute(s) that may apply to the Project including chapter 49.60 RCW. Section 18 Participation of Disadvantaged Business Enterprises To the extent applicable, the CONTRACTOR shall take the following measures to facilitate participation by disadvantaged business enterprises (DBE) in the Project: A. The CONTRACTOR agrees to comply with section 1101(b) of SAFETEA -LU, 23 USC §101 note, and U.S. DOT regulations, "Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs," 49 CFR Part 26; and B. The CONTRACTOR agrees that it shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any third -party contract, or sub - agreement supported with federal assistance derived from the U.S. DOT or in the administration of its DBE program or the requirements of 49 CFR Part 26. The CONTRACTOR agrees to take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of all third -party contracts and sub- agreements supported with UCB1001 Page 9 of 19 federal assistance derived from the U.S. DOT. The CONTRACTOR's DBE program, as required by 49 CFR Part 26 and approved by the U.S. DOT, is incorporated by reference and made part of this AGREEMENT. Implementation of the DBE program is a legal obligation, and failure to carry out its terms shall be treated as violation of this AGREEMENT. Upon notification to the CONTRACTOR of its failure to implement its approved DBE program, the U.S. DOT may impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 USC § 1001, and/or the Program Fraud Civil Remedies Act, 31 USC §§ 3801 et seq. Section 19 Energy Conservation and Environmental Requirements A. Energy Conservation. The CONTRACTOR shall comply with the mandatory standards and policies relating to energy efficiency standards and policies within the Washington State energy conservation plan issued in compliance with the Energy Policy and Conservation Act, 42 USC §§ 6321 et seq., and any amendments thereto. B. Environmental Protection. The CONTRACTOR agrees to comply with all applicable requirements of the National Environmental Policy Act of I969, as amended (NEPA), 42 USC §§ 4321 through 4335; Executive Order No. 11514, as amended, "Protection and Enhancement of Environmental Quality," 42 USC § 4321 note; FTA statutory requirements at 49 USC § 5324(b); U.S. Council on Environmental Quality regulations imposing requirements for compliance with the National Environmental Policy Act of 1969, as amended, 40 CFR Part 1500 through 1508; joint Federal Highway Administration (FHWA)/FTA regulations, "Environmental Impact and Related Procedures," 23 CFR Part 771 and 49 CFR Part 622, and subsequent Federal environmental protection regulations that may be promulgated. The CONTRACTOR agrees to comply with 23 USC §§ 139 and 326 as applicable, and implement those requirements in accordance with the provisions of joint FHWA/FTA final guidance, "SAFETEA -LU Environmental Review Process (Public Law 109 -59)," 71 Fed. Reg. 66576 et seq., November 15, 2006, and any applicable Federal directives that may be issued at a later date, except to the extent that FTA determines otherwise in writing. C. Clean Water. The recipient agrees to comply with all applicable Federal laws and regulations and follow Federal directives implementing the Clean Water Act, as amended, 33 USC §§ 1251 through 1377, 42 USC §§ 300f through 300j -6, and 42 USC § 7606 , including any revisions thereto. In the event that the Federal Funds identified in the caption space header of this AGREEMENT entitled "Project Cost ", exceed $100,000, the CONTRACTOR agrees to comply with all applicable standards, orders, or regulations issued pursuant to Section 508 of the Clean Water Act, as amended, 33 USC § 1368, and other applicable requirements of the Clean Water Act. D. Clean Air. The recipient agrees to comply with all applicable Federal laws and regulations and follow Federal directives implementing the Clean Air Act, as amended, 42 USC §§ 7401 through 7671q and 40 CFR parts 85, 86, 93 and 600, and any revisions thereto. In the event that the federal share, identified in "Project Cost" of this AGREEMENT exceeds $100,000, the CONTRACTOR shall comply with all applicable standards, orders or regulations issued pursuant to Section 306 of the Clean Air Act, as amended, 42 USC § 7606, and other applicable provisions of the Clean Air Act . E. Violating Facilities. The CONTRACTOR agrees to: 1. Refrain from using any violating facilities,. 2. Report each violation to WSDOT and understands and agrees that WSDOT will, in turn, report each violation to the FTA and to the appropriate EPA Regional Office. 3. Include these requirements in each subcontract exceeding $100,000 financed in whole or in part with federal assistance provided by FTA. Section 20 Accounting Records A. Project Accounts. The CONTRACTOR agrees to establish and maintain for the Project either a separate set of accounts or separate accounts within the framework of an established accounting system that can be identified with the Project, in accordance with applicable federal regulations and other requirements that FTA may impose. The CONTRACTOR agrees that all checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible, and available to WSDOT and FTA upon request, and, to the extent feasible, kept separate from documents not pertaining to the Project. B. Funds Received or Made Available for the Project. The CONTRACTOR agrees to deposit in a financial institution, all Project payments it receives from the Federal Government and record in the Project Account all amounts provided by the Federal Government in support of this Grant AGREEMENT or Cooperative AGREEMENT and all other funds provided for, accruing to, or otherwise received on account of the Project UCB1001 Page 10 of 19 (Project funds) in accordance with applicable Federal regulations and other requirements FTA may impose. Use of financial institutions owned at Least 50 percent by minority group members is encouraged. C. Documentation of Project Costs. The CONTRACTOR agrees to support all allowable costs charged to the Project, including any approved services contributed by the CONTRACTOR or others, with properly executed payrolls, time records, invoices, contracts, or vouchers describing in detail the nature and propriety of the charges. D. Checks, Orders, and Vouchers. The CONTRACTOR agrees to refrain from drawing checks, drafts, or orders for goods or services to be charged against the Project Account until it has received and filed a properly signed voucher describing in proper detail the purpose for the expenditure. Section 21 Audits, Inspection, and Retention of Records A. Submission of Proceedings, Contracts, Agreements, and Other Documents. During the course of the Project and for six (6) years thereafter, the CONTRACTOR agrees to retain intact and to provide any data, documents, reports, records, contracts, and supporting materials relating to the Project as WSDOT may require. Reporting and record - keeping requirements are set forth in 49 CFR Part 18 or 19, whichever is applicable. Project closeout does not alter these recording and record - keeping requirements. Should an audit, enforcement, or litigation process be commenced, but not completed, during the aforementioned six -year period then the CONTRACTOR's obligations hereunder shalt be extended until the conclusion of that pending audit, enforcement, or litigation process. B. General Audit Requirements. The CONTRACTOR agrees to perform the financial and compliance audits required by the Single Audit Act Amendments of 1996, 31 USC §§ 7501 et seq. As provided by 49 CFR § 18.26 or 19.26, whichever is applicable, these audits must comply with OMB Circular A -133, Revised, "Audits of States, Local Governments, and Non - Profit Organizations," and the latest applicable OMB A -133 Compliance Supplement provisions for the U.S. DOT, and any further revision or supplement thereto. The CONTRACTOR agrees that audits will be carried out in accordance with U.S. General Accounting Office "Government Auditing Standards ". The CONTRACTOR agrees to obtain any other audits required by the Federal Government or WSDOT. Project closeout will not alter the CONTRACTOR's audit responsibilities. C. Inspection. The CONTRACTOR agrees to permit WSDOT, the State Auditor, the United States Department of Transportation, and the Comptroller General of the United States, or their authorized representatives, to inspect all Project work materials, payrolls, and other data and records, and to audit the books, records, and accounts of the CONTRACTOR and its subcontractors pertaining to the Project. The CONTRACTOR agrees to require each third - party contractor whose contract award is not based on competitive bidding procedures as defined by the United States Department of Transportation to permit WSDOT, the State Auditor, the United States Department of Transportation, and the Comptroller General of the United States, or their duly authorized representatives, to inspect all work, materials, payrolls, and other data and records involving that third -party contract, and to audit the books, records, and accounts involving that third -party contract as it affects the Project as required by 49 USC § 5325(g). Section 22 Labor Provisions A. Contract Work Hours and Safety Standards Act. The CONTRACTOR shall comply with, and shall require the compliance by each subcontractor at any tier, any applicable employee protection requirements for non - construction employees as defined by the Contract Work Hours and Safety Standards Act, as amended, 40 USC § 3701 et seq., and specifically, the wage and hour requirements of section 102 of that Act at 40 USC § 3702 and USDOL regulations, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction (also Labor Standards Provisions Applicable to Non - construction Contracts Subject to the Contract Work Hours and Safety Standards Act)" at 29 CFR. Part 5; and the safety requirements of section 107 of that Act at 40 USC § 3704, and implementing U.S. DOL regulations, "Safety and Health Regulations for Construction," 29 CFR Part 1926. B. Fair Labor Standards Act. The CONTRACTOR agrees that the minimum wage and overtime provisions of the Fair Labor Standards Act, as amended, 29 USC §§ 201 et seq., apply to employees performing work involving commerce, and apply to any local government employees that are public transit authority employees. The CONTRACTOR shall comply with the Fair Labor Standards Act's minimum wage and overtime requirements for employees performing work in connection with the Project. C. Overtime Requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or UCB1001 Page 11 of 19 mechanic in any workweek in which he or she is employed on such work to work in excess of forty (40) hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of 40 hours in such workweek. D. Payrolls and Basic Records. Payrolls and basic records relating thereto shall be maintained by the CONTRACTOR during the course of the work and preserved for a period of six (6) years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the Project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section I(b)(2)(B) of the Davis -Bacon Act, Public Law 88 -349 as amended by 40 USC §§ 3141 et seq., and pursuant to 49 USC §5333(a) et seq., daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(I)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, Public Law 88 -349, as amended by 40 USC § 3141 et seq. and pursuant to 49 USC § 5333(a), the CONTRACTOR shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. CONTRACTOR's employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. E. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (A) of this section the CONTRACTOR and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such CONTRACTOR and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (A) of this section, in the sum of ten dollars ($10) for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty (40) hours without payment of the overtime wages required by the clause set forth in paragraph (C) of this section. F. Withholding for unpaid wages and liquidated damages. The CONTRACTOR shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the CONTRACTOR or subcontractor under any such contract or any other federal contract with the same prime CONTRACTOR, or any other federally- assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime CONTRACTOR, such sums as may be determined to be necessary to satisfy any liabilities of such CONTRACTOR or subcontractor for unpaid wages and Liquidated damages as provided in the clause set forth in paragraph (E) of this section. G. Public Transportation Employee Protective Agreement. To the extent required by Federal Law, the CONTRACTOR agrees to implement the Project in accordance with the terms and conditions that the U.S. Secretary of Labor has determined to be fair and equitable to protect the interests of any employees affected by the Project and that comply with the requirements of 49 USC § 5333 (b), in accordance with the USDOL guidelines, "Section 5333(b), Federal Transit Law," 29 CFR Part 215 and any amendments thereto. These terms and conditions are identified in USDOL's certification of public transportation employee protective arrangements to FTA. The CONTRACTOR agrees to implement the Project in accordance with the conditions stated in that USDOL certification, which certification and any documents cited therein are incorporated by reference and made part of this AGREEMENT. The CONTRACTOR also agrees to comply with the terms and conditions of the Special Warranty for the Non - urbanized Area Program that is most current as of the date of execution of this AGREEMENT and any alternative comparable arrangements specified by USDOL for application to the Project, in accordance with USDOL guidelines, "Section 5333(b), Federal Transit Law," 29 CFR Part 215, and any revision thereto. Section 23 Planning and Private Enterprise FTA Requirements. The CONTRACTOR agrees to implement the Project in a manner consistent with the plans developed in compliance with the applicable planning and private enterprise provisions of 49 USC §§ 5303, 5304, 5306, and 5323(a)(1); joint Federal Highway Administration (FHWA)/ FTA regulations, "Statewide Transportation Planning: Metropolitan Transportation Planning," 23 CFR Part 450 and 49 CFR Part 613; and any amendments thereto, and with FTA regulations, "Major Capital Investment Projects," 49 CFR Part 611, to the extent that these UCB 1 001 Page 12 of 19 regulations are consistent with the SAFETEA -LU amendments to the public transportation planning and private enterprise laws, and when promulgated, any subsequent amendments to those regulations. To the extent feasible, the CONTRACTOR agrees to comply with the provisions of 49 USC § 5323(k), which afford governmental agencies and non - profit organizations that receive Federal assistance for non - emergency transportation from Federal Government sources (other than U.S. DOT) an opportunity to be included in the design, coordination, and planning of transportation services. During the implementation of the Project, the CONTRACTOR agrees to take into consideration the recommendations of Executive Order No. 12803, "Infrastructure Privatization," 31 USC § 501 note, and Executive Order No 12893, "Principles for Federal Infrastructure Investments," 31 USC § 501 note. Section 24 Substance Abuse A. Drug and Alcohol Testing. If receiving FTA 5309 and/or FTA 5311 funding, CONTRACTOR agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Part 655, produce any documentation necessary to establish its compliance with Part 655, and permit any authorized representative of the U.S. DOT or its operating administrations and WSDOT to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Part 655 and review the testing process. The CONTRACTOR agrees further to submit annually the Management Information System (MIS) reports to WSDOT each year during the term identified in the caption space header above titled "the Term of Project" B. Drug -free Workplace. To the extent applicable, the CONTRACTOR agrees to comply with the Federal regulations and guidance related to the Drug Free Workplace Act of 1988, 41 USC §§ 701 et seq., and any amendments thereto, 2 CFR Part 182, and 49 CFR Part 32, and to FTA regulations, "Prevention of Alcohol Misuse and Prohibited Drug Use in Transit Operations," 49 CFR Part 655 and 49 USC § 5331. C. Privacy Act. The CONTRACTOR agrees to comply with the confidentiality and other civil rights provisions pertaining to substance abuse contained in the Civil Rights clause of this AGREEMENT. Section 25 Federal "$1 Coin" Requirements To the extent required by the Federal Government, the CONTRACTOR agrees to comply with the provisions of section 104 of the Presidential $1 Coin Act of 2005, 31 USC § 5112(p), so that the CONTRACTOR's equipment and facilities requiring the use of coins or currency will be fully capable of accepting and dispensing $1 coins in the connection with that use. The CONTRACTOR also agrees to display signs and notices denoting the capability of its equipment and facilities on its premises where coins or currency are accepted or dispensed, including on each vending machine. Section 26 Safe Operation of Motor Vehicles As applicable, CONTRACTOR is encouraged to comply with the following provisions: A. Executive Order No. 13043, "Increasing Seat Belt Use in the United States," 23 USC § 402 note. CONTRACTOR is encouraged to adopt and promote on-the-job seat belt use policies and programs for personnel that operate company -owned vehicles. B. Executive Order No. 13513, "Federal Leadership on Reducing Text Messaging While Driving," and DOT Order 3902.10, "Text Messaging While Driving." CONTRACTOR is encouraged to adopt and enforce workplace safety policies to decrease crashes caused by distracted drivers including policies to ban text messaging while driving. CONTRACTOR is also encouraged to conduct workplace safety initiatives in a manner commensurate with its size. Section 27 Freedom of Information Act CONTRACTOR understands and agrees that the Freedom of Information Act (FOIA), 5 USC § 552, applies to the information and documents, both paper and electronic, submitted to WSDOT, FTA and U.S. DOT. The CONTRACTOR should therefore be aware that all applications and materials submitted that are related to PROJECT will become agency records and are subject to public release through individual FOIA or state public disclosure requests. UCB 1 001 Page 13 of 19 Section 28 Coordination of Special Needs Transportation It is the policy of WSDOT to actively support coordination of special needs transportation in the State. As a condition of assistance, the CONTRACTOR is required to participate in local coordinated planning as led by CONTRACTOR's relevant Metropolitan Planning Organization (MPO) and/or Regional Transportation Planning Organization (RTPO). Persons with special transportation needs means those persons, including their personal attendants, who because of physical or mental disability, income status, or age are unable to transport themselves or purchase transportation. Section 29 Agreement Modifications Either PARTY may request changes to this AGREEMENT. Any changes to the terms of this AGREEMENT must be mutually agreed upon and incorporated by written amendment to this AGREEMENT. Such amendments shall not be binding or valid unless signed by the persons authorized to bind each of the PARTIES. Section 30 Changed Conditions Affecting Performance The CONTRACTOR hereby agrees to immediately notify WSDOT in writing of any change in conditions or law, or of any other event, including any current or prospective dispute, which may adversely affect WSDOT's interst in the PROJECT or affect CONTRACTOR's ability to perform the Project in accordance with the provisions of this AGREEMENT. Section 31 Universal Identifier CONTRACTOR shall, in accordance with 2 CFR Part 25, obtain a Dun and Bradstreet Data Universal Numbering System (DUNS) number as a univeral identifier for Federal financial asistance recipients. Section 32 Disputes A. Disputes. Disputes, arising in the performance of this AGREEMENT, which are not resolved by agreement of the PARTIES, shall be decided in writing by the WSDOT Public Transportation Assistant Director or 'Assistant Director's designee. This decision shall be final and conclusive unless within ten (10) days from the date of the CONTRACTOR's receipt of WSDOT's written decision, the CONTRACTOR mails or otherwise furnishes a written appeal to the Director of the Public Transportation Division or the Director's designee. The CONTRACTOR's appeal shall be decided in writing by the Director of the Public Transportation Division within thirty (30) days of receipt of the appeal by the Director of Public Transportation Division or Director's designee. The decision shall be binding upon the CONTRACTOR and the CONTRACTOR shall abide by the decision. B. Performance During Dispute. Unless otherwise directed by WSDOT, CONTRACTOR shall continue performance under this AGREEMENT while matters in dispute are being resolved. C. Claims for Damages. Should either PARTY to this AGREEMENT suffer injury or damage to person, property, or right because of any act or omission of the other PARTY or any of that PARTY's employees, agents or others for whose acts it is legally liable, a claim for damages therefore shall be made in writing to such other PARTY within thirty (30) days after the first observance of such injury or damage. D. Rights and Remedies. All remedies provided in this AGREEMENT are distinct and cumulative to any other right or remedy under this document or afforded by law or equity, and may be exercised independently, concurrently, or successively and shall not be construed to be a limitation of any duties, obligations, rights and remedies of the PARTIES hereto. No action or failure to act by the WSDOT or CONTRACTOR shall constitute a waiver of any right or duty afforded any of them under this AGREEMENT, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. Section 33 State and Local Law Except when a Federal statute or regulation pre -empts state and/or local law, regulation or ordinance, no provision of this AGREEMENT shall require the CONTRACTOR to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of state or local law, regulation or ordinance. Thus if any provision or compliance with any provision of this AGREEMENT violate state or local law, regulation or ordinance, or would require the CONTRACTOR to violate state or local law, regulation or ordinance, the UCB 1 001 Page 14 of 19 CONTRACTOR agrees to notify WSDOT immediately in writing. Should this occur, WSDOT and the CONTRACTOR agree to make appropriate arrangements to proceed with or, if necessary, expeditiously, terminate the Project. Section 34 Termination A. Termination for Convenience. WSDOT and/or the CONTRACTOR may suspend or terminate this AGREEMENT, in whole or in part, and all or any part of the federal and/or state financial assistance provided herein, at any time by written notice to the other PARTY in accordance with 49 CFR Part 18 § 18.44 or 49 CFR Part 19 § 19.61, whichever is applicable. WSDOT and the CONTRACTOR shall agree upon the AGREEMENT termination provisions including but not limited to the settlement terms, conditions, and in the case of partial termination the portion to be terminated. Written notification must set forth the reasons for such termination, the effective date, and in case of a partial termination, the portion to be terminated. However, if, in the case of partial termination, WSDOT determines that the remaining portion of the award will not accomplish the purposes for which the award was made WSDOT may terminate the award in its entirety. WSDOT and/or the CONTRACTOR may terminate this AGREEMENT for convenience for reasons including, but not limited to, the following: 1. The requisite federal and/or state funding becomes unavailable through failure of appropriation or otherwise; 2. WSDOT determines, in its sole discretion, that the continuation of the Project would not produce beneficial results commensurate with the further expenditure of federal and/or state funds; 3. The CONTRACTOR is prevented from proceeding with the Project as a direct result of an Executive Order of the President with respect to the prosecution of war or in the interest of national defense; or an Executive Order of the President or Governor of the State with respect to the preservation of energy resources; 4. The CONTRACTOR is prevented from proceeding with the Project by reason of a temporary preliminary, special, or permanent restraining order or injunction of a court of competent jurisdiction where the issuance of such order or injunction is primarily caused by the acts or omissions of persons or agencies other than the CONTRACTOR; 5. The Federal Government and/or State Government determines that the purposes of the statute authorizing the Project would not be adequately served by the continuation of federal and/or state financial assistance for the Project; or 6. The Federal Government terminates this AGREEMENT due to a determination that the CONTRACTOR has: (a) willfully misused Federal assistance Funds by failing to make adequate progress on the Project, (b) failed to make reasonable and appropriate use of the Project real property, facilities, or equipment, or (c) failed to comply with the terms of this AGREEMENT. In the event of a termination under this subsection, and the Federal Government exercises its right to require WSDOT to refund any or all of the Federal Funds provided for the Project, the CONTRACTOR shall return all monies reimbursed to it by WSDOT, in the amount required by the Federal Government, within sixty (60) days of its receipt of a certified letter from WSDOT. 7. In the case of termination for convenience under subsections A.lthrough A.5 above, WSDOT shall reimburse the CONTRACTOR for all costs payable under this AGREEMENT which the CONTRACTOR properly incurred prior to termination. The CONTRACTOR shall promptly submit its claim for reimbursement to WSDOT. If the CONTRACTOR has any property in its possession belonging to WSDOT, the CONTRACTOR will account for the same, and dispose of it in the manner WSDOT directs. B. Termination for Default. WSDOT may suspend or terminate this AGREEMENT for default, in whole or in part, and all or any part of the federal financial assistance provided herein, at any time by written notice to the CONTRACTOR, if the CONTRACTOR materially breaches or fails to perform any of the requirements of this AGREEMENT, including: 1. Takes any action pertaining to this AGREEMENT without the approval of WSDOT, which under the procedures of this AGREEMENT would have required the approval of WSDOT; 2. Jeopardizes its ability to perform pursuant to the AGREEMENT, United States of America Iaws, Washington state laws, or local governmental laws under which the CONTRACTOR operates. 3. Fails to make reasonable progress on the Project or other violation of this AGREEMENT that endangers substantial performance of the Project; or 4. Fails to perform in the manner called for in this AGREEMENT or fails to comply with, or is in violation of, any provision of this AGREEMENT. WSDOT shall serve a notice of termination on the CONTRACTOR setting forth the mariner in which the CONTRACTOR is in default hereunder. If it is later determined by WSDOT that the CONTRACTOR had an excusable reason for not performing, such as events which are not the fault of or are beyond the control of the CONTRACTOR, such as a strike, fire or flood, WSDOT may: (a) allow the CONTRACTOR to UCB 1001 Page 15 of 19 continue work after setting up a new delivery of performance schedule, or (b) treat the termination as a termination for convenience. C. WSDOT, in its sole discretion may, in the case of a termination for breach or default, allow the CONTRACTOR ten (10) business days, or such longer period as determined by WSDOT, in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions. If the CONTRACTOR fails to remedy to WSDOT's satisfaction the breach or default within the timeframe and under the conditions set forth in the notice of termination, WSDOT shall have the right to terminate this AGREEMENT without any further obligation to CONTRACTOR. Any such termination for default shall not in any way operate to preclude WSDOT from also pursuing all available remedies against CONTRACTOR and its sureties for said breach or default. D. In the event that WSDOT elects to waive its remedies for any breach by CONTRACTOR of any covenant, term or condition of this AGREEMENT, such waiver by WSDOT shall not limit WSDOT's remedies for any succeeding breach of that or of any other term, covenant, or condition of this AGREEMENT. Section 35 Forbearance by WSDOT Not a Waiver Any forbearance by WSDOT in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. Section 36 Lack of Waiver In no event shall any WSDOT payment of grant funds to the CONTRACTOR constitute or be construed as a waiver by WSDOT of any CONTRACTOR breach or default. Such payment shall in no way impair or prejudice any right or remedy available to WSDOT with respect to any breach or default. Section 37 Limitation of Liability A. The CONTRACTOR shall indemnify and hold harmless WSDOT, its agents, employees, and officers and • process and defend at its own expense any and all claims, demands, suits at law or equity, actions, penalties, losses, damages, or costs (hereinafter referred to collectively as "claims "), of whatsoever kind or nature brought against WSDOT arising out of, in connection with or incident to the execution of this AGREEMENT and /or the CONTRACTOR's performance or failure to perform any aspect of this AGREEMENT: This indemnity provision applies to all claims against WSDOT, its agents, employees and officers, and subcontractors arising out of, in connection with or incident to the negligent acts omissions of the CONTRACTOR, its agents, employees and officers. Provided, however, that nothing herein shall require the CONTRACTOR to indemnify and hold harmless or defend the WSDOT, its agents, employees or officers to the extent that claims are caused by the negligent acts or omissions of the WSDOT, its agents, employees or officers. The indemnification and hold harmless provision shall survive termination of this AGREEMENT. B. The CONTRACTOR shall be deemed an independent CONTRACTOR for all purposes, and the employees of the CONTRACTOR or its subcontractors and the employees thereof, shall not in any manner be deemed to be the employees of WSDOT. C. The CONTRACTOR specifically assumes potential liability for actions brought by CONTRACTOR's employees and /or subcontractors and solely for the purposes of this indemnification and defense, the CONTRACTOR specifically waives any immunity under the State Industrial Insurance Law, Title 51 Revised Code of Washington. D. In the event either the CONTRACTOR or WSDOT incurs attomey's fees, costs or other legal expenses to enforce the provisions of this section of the AGREEMENT against the other PARTY, all such fees, costs and expenses shall be recoverable by the prevailing PARTY. Section 38 WSDOT Advice The CONTRACTOR bears complete responsibility for the administration and success of the Project as it is defined by this AGREEMENT and any amendments thereto. If the CONTRACTOR solicits advice of WSDOT on problems that may arise, the offering of WSDOT advice shall not shift the responsibility of the CONTRACTOR for the UCB 1001 Page 16 of 19 correct administration and success of the Project, and WSDOT shall not be held liable for offering advice to the CONTRACTOR. Section 39 Venue and Process In the event that either PARTY deems it necessary to institute legal action or proceedings to enforce any right or obligation under this AGREEMENT, the PARTIES hereto agree that any such action shall be initiated in the Superior Court of the State of Washington situated in Thurston County. The CONTRACTOR hereby accepts the issuing and service of process by registered mail at the mailing address shown in the caption space headers above of this AGREEMENT titled CONTRACTOR and Washington State Department of Transportation. The PARTIES agree that the laws of the state of Washington shall apply. Section 40 Subrogation A. Prior to Subrogation. WSDOT may require the CONTRACTOR to take such action as may be necessary or appropriate to preserve the CONTRACTOR's right to recover damages from any person or organization alleged to be legally responsible for injury to any equipment, property, or transportation program in which WSDOT has a financial interest. B. Subrogation. WSDOT may require the CONTRACTOR to assign to it all right of recovery against any person or organization for loss, to the extent of WSDOT's loss. Upon assignment, the CONTRACTOR shall execute, deliver, and do whatever else necessary to secure WSDOT's rights. The CONTRACTOR shall do nothing after any loss to prejudice the rights of WSDOT. C. Duties of the CONTRACTOR. If WSDOT has exercised its right of subrogation, the CONTRACTOR shall cooperate with WSDOT and, upon. WSDOT's request, assist in the prosecution of suits and enforce any right against any person or organization who may be liable to WSDOT. The CONTRACTOR shall attend hearings and trials as requested by WSDOT, assist in securing and giving evidence as requested by WSDOT, and obtain the attendance of witnesses as requested by WSDOT. Section 41 Counterparts This AGREEMENT may be simultaneously executed in several counterparts, each of which shall be deemed to be an original having identical legal effect. The CONTRACTOR does hereby ratify and adopt all statements, representations, warranties, covenants, and agreements and their supporting materials contained and/or mentioned herein, and does hereby accept WSDOT's grant and agrees to all of the terms and conditions thereof. Section 42 Complete Agreement This document contains all covenants, stipulations, and provisions agreed upon by WSDOT. No agent or representative of WSDOT has authority to make, and WSDOT shall not be bound by or be liable for, any statement, representation, promise, or agreement not set forth herein or made by written amendment hereto. Section 43 Severability If any covenant or of this AGREEMENT shall be adjudged void, such adjudication shall not affect the validity or obligation of performance of any other covenant or provision, or any part thereof, which in itself is valid if such remainder conforms to the terms and requirements of applicable law and the intent of this AGREEMENT. No controversy concerning any covenant or provision shall delay the performance of any other covenant or provision except as herein allowed. Section 44 Section Headings All section headings are inserted for convenience only and shall not affect any construction or interpretation of this AGREEMENT. Section 45 Execution This AGREEMENT is executed by the Director, Public Transportation Division, State of Washington, Department of Transportation or the Director's designee, not as an individual incurring personal obligation and liability, but UCB 1 001 Page 17 of 19 solely by, for, and on behalf of the State of Washington, Department of Transportation, in the capacity as Director, Public Transportation Division, or as a designee. Section 46 Binding Agreement The undersigned acknowledge that they are authorized to execute this AGREEMENT and bind their respective agencies or entities to the obligations set forth herein. IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and year last written below. WASHINGTON STATE CONTRACTOR DEPARTMENT OF TRANSPORTATION By: . P� By: Vtd :Han Lagerbe D rector Authorized Representative } Public Transpo ation Division Title: C- Print Name: S " $ 4 P' L Date: YV / 5 / .9_-01. I Date: g' 11 1 APPROVED AS TO FORM By: Susan Cruise Assistant Attorney General Date: June 6, 2011 UCB 1001 Page 18 of 19 Exhibit I SCOPE OF WORK AND BUDGET Total Project Cost Federal Funds $66,000 State Funds $132,000 Contractor Funds $264,000 Total Project Cost $462,000 Funding by Project PROJECT A Scope of Work: Provide operating funding assistance to expand service to provide a coordinated route between Ellensburg and Yakima. Funding Percentage Current Projected Totals 2011 -2012 2012 -2013 FTA 5311 14% $66,000 $66,000 $132,000 Rural Mobility 29% $132,000 $132,000 Competitive Contractor Funds 57% $264,000 $264,000 Total Project Cost 100% $462,000 $528,000 Budget: Funding and percentages identified reflect cunrent project funds for 2011 -2012. 2012 -2013 Projected funds are subject to renegotiation based on availability of funds and will be added by amendment when available. UCB 1001 Page 19 of 19 • A BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. ''' I For Meeting of: October 18, 2011 ITEM TITLE: Resolution authorizing and directing the City Manager of the City of Yakima to execute the two -year commuter service contract and vehicle lease agreement with HopeSource to provide service between the cities of Yakima and Ellensburg, WA. SUBMITTED BY: Chris Waarvick, Public Works Director, 576 -6411 CONTACT PERSON/TELEPHONE: Ken Mehin, Transit Manager, 576 -6415 SUMMARY EXPLANATION: Yakima Transit obtained grant funding from the Washington State Department of Transportation for a demonstration project to provide commuter transit services between the cities of Yakima and Ellensburg, WA. The program is a partnership between Yakima Transit and HopeSource. HopeSource provides fixed -route transit services in Ellensburg under a contract with Central Washington University. Central Washington University is funding HopeSource's portion of the match for the grant. October 31, 2011, is the anticipated start date for the service, which will last for two years. Resolution X Ordinance Contract X Other_(Specify) Funding Source Transit Sales Tax APPROVAL FOR SUBMITTAL: XV�4./#6 City Manager STAFF RECOMMENDATION: Adopt the resolution authorizing and directing the City Manager to enter into an operating contract and lease agreement with HopeSource to provide fixed -route commuter service. BOARD RECOMMENDATION: The Council Transportation - Utilities Committee supports the partnership. COUNCIL ACTION: //1_ Client #: 10867 HOPESOU ACORDr. CERTIFICATE OF LIABILITY INSURANCE I DATE (MM /DDIYYYY) 04/16/2012 THIS CERTIFICATE IS ISSUED AS A OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS ' CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE'OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in Ileu of such endorsement(s). , PRODUCER •CONTACT , NAME: _ 'Bell- Anderson Ins - Eburg C/L PH °IVE 425:291-5200 A,� N 425 291 -5100 _ No Extl: _, ., 1206 N Dolarway,.Suite 118 £ -MAIL :Ellensburg, WA 98926 hDDRES5._ . 509 962 -9825 INSUR RES) AFFORDING COVERAGE NAIL P „ 33333 IINSURERA •Philadelphia :Indemnity Ins INSURED ; INSURER B Philadelphia Indemnity Ins HopeSource — __ . _ __, _., ...... • INSURER C :.... .... ..... ... ... .. . _ 700 E Mountain View Ave Suite 501 Ellensburg, WA 98926 INSURER D �€ INSURER�E � We..� S INSURER F:. COVERAGES _. 'CERTIFICATE NUMBER: -. REVISION NUMBER: THIS' IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED' NAMED ABOVE FOR THE POLICY:PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER .DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE 'BEEN REDUCED BY PAID CLAIMS INSR __._. IADDLISUBR: ' • POLICY EFF 'POLICY EXP• w. m ” " LTR TYPE•OF INSURANCE ,_, liNSR WVQ; POLICY NUMBER (MMIDD/YYYY) (MMIDD/YYYYY 3 LIMITS A GENERAL LIABILITY x j PHPK689462 03/01/2012 03/01/2013 EACH OCCURRENCE $1000 I':AMfa GE'1'O RE'N'TED X COMMERCIAL GENERAL LIABILITY nrz; f.�IS pgcp•rnnCn $100 CLAIMS -MADE 1 XI.00CUR ..MED EXP (Any one person) S5,000 ' • • ' ' PERSONAL &ADVINJURY $1,000,000 GENERAL AGGREGATE $2,000,000 , GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS.- COMP /OPAGG $2,000,000 . • ,- POLICY,I .9 —_ ._fl LOC A 3 AUTOMOBILE LIABILITY CaUtZt SiNGia LIMit _ E x PHPK689462 .0310112012 03/01/2013 (FT a,,,denll . _ Xi ANY'AUTO I BODILY- person) ( $1,000,000 'I•ALL OWNED ' — . SCHEDULED I - BODILY INJURY (Per acadenl) $1,000,000 AUTOS 'AUTOS . P ..._. : ...... . .. �.. ? AUTOS WNED ' PROPERTY DAMAGf: X HIRED AUTOS X 'AUTOS !Per Rccl¢er!II -$ F A UMBRELLA LIAR , X • OCCUR ! PHUB337423 :03/01/2012 03/01/2013, EACH OCCURRENCE $11,000,000 X "EXCESS LIAR CLAIMS -MADE 999 AGGREGATE $11 I .,. c oal .X RETENTION $10000 WORKERS COMPENSATION IWC STA I. ' ,ICI1I AND EMPLOYERS' LIABILITY T el ` 1.141tI7e° I „.ilwli; -: ANY PROPRIETORI7ARTNERIEXECUTIVE Y;t N • OFFICER/MEMBER EXCLUDED? . NIA EL EACH ACCIDENT S . • • (Mandatory In NI-I) E,L, DISEASE -,EA EMPLOYEE S . If yes, describe under. _ DESCRIPTION OR OPERATIONS below. _ I ... .... . E L DISEASE - POLICY Y LIMIT .$ B Professional PHSD704663 03/01/2012 03/01/2013 $1,000,000 includes EPLI DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACDRD 101, Additional Remarks Schedule. If more space Is required) The City of Yakima, its elected and appointed officials, officers, agents, and employees are included as additional insureds for general liability and auto liability, per endorsement CG2026 0704 & CA2028 0704. This certificate cancels and replaces previously issued•one on 3/2/2012. • CERTIFICATE HOLDER CANCELLATION City of Yakima SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Attn Ken Mehin,Transit Division Manager ACCORDANCE WITH THE POLICY PROVISIONS. 2301 Fruitvale Blvd . - Yakima, WA 98902 AUTHORIZED REPRESENTATIVE © 1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) 1 of 1 The ACORD name and logo are registered marks of ACORD #S 381328/M371918 CLS • POLICY NUMBER: PHPK836941 COMMERCIAL AUTO CA 20 48 02 99 THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. DESIGNATED INSURED This endorsement modifies insurance provided under the:following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modi- fied by this endorsement. This endorsement identifies person(s) or organization(s) who are "insureds" under the Who Is An Insured Provi- sion of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form. This endorsement changes the policy effective an the Inception date of the policy unless another date is indicated below. Endorsement Effective: 03/01/2012 • Counters' . °c= Named Insured: Hopesource (Authorized Re presentative) • SCHEDULE of Yakima, its elected and appointed officials, officers, cl (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to the endorsement.) • Each person or organization shown in the Schedule is an "insured" for Liability Coverage, but only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured Provision contained in Section tI of the Coverage Form. • ( CA 20 48 02 99 Copyright, insurance Services Office, Inc„ 1998 Page 1 of 1 ❑ °I e { 1 POLICY NUMBER. PHPK836941 COMMERCIAL GENERAL LIABILITY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) The City of Yakima, its elected officials, officers, agents and employees Information required to complete this Schedule, if not shown above, will be shown in the Declarations Section II — Who Is An Insured is amended to in- clude as an additional insured the person(s) or or- ganization(s) shown in the Schedule, but only with respect to liability for "bodily injury', "property dam- age" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: A. In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you. CG 20 26 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 ❑ EXHIBIT "B" Ellensburg- Yakima Commuter Service Contract AMENDMENT NO. 2 THIS AMENDMENT NO. 2 is entered into by and between the City of Yakima, a municipal corporation, and HopeSource, a nonprofit corporation providing transit services in and for the City of Ellensburg, for the uses and purposes set forth below. I. Recitals A. City of Yakima (hereafter "City ") is a municipal corporation of the State of Washington with City Hall located at 129 North 2 Street, Yakima, Washington. Yakima Transit is a division of the City providing fixed route and commuter transit services, including the commuter transit services authorized pursuant to the Ellensburg- Yakima Commuter Service Contract with HopeSource. B. HopeSource is a nonprofit corporation organized and existing under the laws of the State of Washington, with IRC 501(c)(3) charitable organization status. C. The parties have previously entered into an agreement for mutual provision of passenger commuter service between the Cities of Yakima and Ellensburg, which agreement is the "Ellensburg- Yakima Commuter Service Contract" dated November 28, 2011. D. The parties desire to amend the agreement to allow HopeSource to utilize Yakima Transit's membership in the Washington State Insurance Pool (WSTIP) and to amend the agreement to allow HopeSource to take advantage of Yakima Transit's fueling rates. II. Amendment WHEREFORE, in consideration of the mutual conditions, covenants and promises herein, the parties agree as follows: • Section 1. Section 12 of the Ellensburg- Yakima Commuter Service Contract is hereby amended and Section 31 of the Ellensburg- Yakima Commuter Service Contract is hereby added to read as follows: 12. Insurance. It is understood the City is not required to and will not maintain liability insurance for Contractor and /or its officers, employees, agents, instructors, and /or subcontractors and that such insurance is the sole responsibility of Contractor. Contractor may take advantage of insurance pricing through City's membership in the Washington State Transit Insurance Pool (WSTIP). Contractor may purchase this type of insurance through City. City shall bill Contractor annually, typically in the month of January. Said billing shall be paid within 30 days of receipt. As a condition to use WSTIP insurance, Contractor agrees to participate in WSTIP's monitoring program (Envision) and pay any fees associated with that program. City retains the right to revoke the WSTIP option at any time for any reason. 31. Fueling. In an effort to reduce expenses related to operating the service, Contractor may fuel vehicles used for operating the Yakima - Ellensburg Commuter at a City fueling station. 1 Contractor shall pay the cost of the fuel, billed on a monthly basis. Only a City employee may fuel the vehicle at a City fueling station. Contractor, their employees, agents, or drivers shall not fuel the vehicles at a City fueling station. City controls pricing, which may include administrative or environmental fees. City shall notify Contractor in writing at least 30 days prior to billing of any anticipated fees beyond the fuel price City pays. Section 2. EFFECTIVE DATE upon signing. Section 3. Except as amended herein, the provisions of the Ellensbur- Yakima Commuter Service Contract shall remain unchanged. WHEREFORE, this Amer % ent 1 o. • is executed and effective this 7 day of J a 2013. CITY OF AKIMA HOP : • URCE N,_,_ 4 4 4t. ndlill B i .� .I 1.. y ony O'' • e, City Manager ies Pappas, 'rest: .-nt i ■ ATTEST: _ . ... N Ol e� 1 s O * } f , wa , �k t ti !! By: dri . , f� 4 ` � 'S4 Sonya Claa ee, City Clerk i .•. N. , . i 2