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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT , !
Item No. E.
For Meeting of: March 20, 2012
ITEM TITLE: Resolution authorizing an agreement to accept grant
funding through the Washington State Department of
Transportation to replace five vanpool vans.
SUBMITTED BY: Chris Waarvick, Director of Public Works
Ken Mehin, Transit Manager
CONTACT Ken Mehin, Transit Manager, 576 -6415
PERSON/TELEPHONE:
it SUMMARY EXPLANATION:
Yakima Transit applied for grant funding in 2011 to replace five vanpool vans. The
funds were awarded in March 2012 to replace five vanpool vehicles. The program is
funded by Washington State's Vanpool Investment Program (RCW 47.66.070) and
under that program Yakima Transit is required to provide 30% matching funds for
alternative fuel vehicles. The total grant funds available under this contract is
$96,250 (maximum), under which Yakima Transit must provide a matching portion of
$41,250 (maximum).
Resolution X Ordinance Other
(specify)
Contract: X Mail to:
Contract Term: 4 years Amount: $96,250 Expiration Date: March 20,
2016
Insurance Required? No
Washington State Department of
Funding Transportation Vanpool Investment Phone:
Source: Program & Yakima Transit's Sales Tax
Revenue
APPROVED FOR City Manager
SUBMITTAL:
STAFF RECOMMENDATION:
Adopt the resolution authorizing an agreement to accept grant funding through the
Washington State Department of Transportation to replace five vanpool vehicles. ,
BOARD /COMMISSION RECOMMENDATION:
City Council actions on prior vanpool vehicle grant contracts have been supported in
the past.
ATTACHMENTS:
Click to download
El Resolution
0 Agreement
• RESOLUTION NO. R -2012-
A RESOLUTION adopting a resolution authorizing the City Manager to enter into an
agreement to accept grant .funding to replace five vanpool vans for
Yakima Transit's vanpool program.
WHEREAS, the City of Yakima operates a vanpool program; and,
WHEREAS, the City of Yakima applied for grant funding under the Washington State
Department of Transportation's Vanpool Investment Program; and,
WHEREAS, grant funding was awarded to replace five vanpool vans; and,
WHEREAS, the Washington State Department of Transportation awarded funding March
2012; and,
WHEREAS, it is necessary for the City and the Washington State Department of
Transportation to enter into an agreement setting forth the terms, conditions, and requirements
for allocating this funding.
NOW, THEREFORE, be it resolved by the City Council of the City of Yakima, the City
Manager is hereby authorized to enter into Agreement No. GCB1134 with the Washington State
Department of Transportation for grant funding to replace five vanpool vans.
ADOPTED BY THE CITY COUNCIL at a regular meeting this 20th day of March, 2012.
Micah Cawley, Mayor
ATTEST:
City Clerk
• Federal /State Vanpool Investment Program Grant Agreement
W ashington State Department of Transportation Contractor:
Public Transportation Division Yakima Transit
310 Maple Park Avenue 2301 Fruitvale Blvd
PO Box 47387 Yakima, WA 98902
Olympia, WA 98504 -7387
WSDOT Contact: Shamus Misek 360 - 705 -7346 Contact Person: Karen Allen
Agreement Project Start Project Project Equipment Project Title
Number Date Completion Reimbursement Vanpool
GCB1134 July 1, 2011 Date End of the $96,250 Investment
Useful Life of the
• Project Program
Equipment as
identified in
Exhibit 1, 1
THIS AGREEMENT, entered into by the Washington State Department of Transportation (hereinafter
referred to as "WSDOT ") and the agency written above (hereinafter referred to as the "TRANSIT
AGENCY "), and /or individually referred to as the "PARTY" and collectively as the "PARTIES ",
WITNESSES THAT:
WHEREAS, the Transportation Budget, as set forth in Laws of 2011, chapter 367, section 220 (3)
provides funding to WSDOT for the Statewide Vanpool Investment Program;
8 WHEREAS, the Transportation Budget under authority of RCW 47.66.070 provides funding for
WSDOT to coordinate the development and implementation of the Statewide Vanpool Investment
Program (VIP);
WHEREAS, WSDOT coordinated with transit agencies statewide to develop the implementation of the
Statewide VIP; and
WHEREAS, the TRANSIT AGENCY has determined a need for one or more VIP vehicles to enhance
its vanpool program.
NOW, THEREFORE, in consideration of the terms, conditions, performances, mutual covenants herein
set forth and the attached exhibits, WSDOT and the TRANSIT AGENCY agree to the following terms
and conditions:
Section 1
Purpose of Agreement
The purpose of this AGREEMENT is for WSDOT to reimburse the TRANSIT AGENCY for capital
costs incurred for the purchase of replacement vanpool vehicles and for the purchase of vanpool vehicles
to expand vanpooling (hereinafter referred to as "Project Equipment ") in accordance with the provisions
of this AGREEMENT and Exhibit I - Scope of Work, Exhibit II - RVCT and WSRO VP Performance
Indicator Report (hereinafter referred to as the VIP Report), and Exhibit III - VIP WSDOT Funded
Vanpool Van Quarterly Fleet Update, which are attached hereto and by this reference incorporated
herein.
Section 2
Scope of Project
40 WSDOT hereby agrees to provide capital financing to the TRANSIT AGENCY to purchase Project
Equipment, for the purpose of investing in vanpooling during the Project Period. The specific number of
vanpool vehicles to be purchased is identified as set forth in Exhibit I, Scope of Work, Section 2.1.
GCB1134 Page 1 of 31
Section 3
Time of Performance
The Project Period of this AGREEMENT shall commence and end on the dates indicated on page 1 of
•
this AGREEMENT under the caption headings "Project Start Date" and "Project Completion Date" and
subject to its other provisions unless terminated by one of the PARTIES as provided herein. The caption
headings "Project Start Date" and "Project Completion Date ", including the information therein and all
caption space headings above including the information therein are by this reference incorporated into
this Agreement as if fully set forth herein.
Section 4
Inspection of Project Equipment upon Delivery
TRANSIT AGENCY shall inspect Project Equipment within fifteen calendar days of delivery to the
TRANSIT AGENCY. The TRANSIT AGENCY shall certify that it has fully inspected and
acknowledged that such Project Equipment is in good condition and repair, and that the TRANSIT
AGENCY has accepted such Project Equipment.
Section 5
Miscellaneous Charges and Conditions
The funds provided by WSDOT pursuant to this Agreement shall not be used by TRANSIT AGENCY to
pay any storage charges, parking charges, and fines, as well as any fees (including vehicle registration,
license and inspection fees), and any taxes, all of which shall be at the cost and expense of the TRANSIT
AGENCY, except that subject to submission of appropriate invoices and required supporting documents,
WSDOT shall reimburse TRANSIT AGENCY for applicable state sales or use tax, which may be
imposed with respect to the Project Equipment by a duly constituted governmental authority. All
replacements, repairs, or substitutions of parts or equipment shall be at the cost and expenses of the
TRANSIT AGENCY.
Section 6
Purchasing and Reimbursement
A. TRANSIT AGENCY will purchase Project Equipment through State of Washington Department of
General Administration's Passenger Van/Vehicle Procurement contract or other competitive
procurement process that meets the TRANSIT AGENCY's procurement policies.
B. Transit Agency agrees that Project Costs eligible for Federal participation, including any state and /or
federal funds used as match to other Federal Transit Administration (FTA) funds, must comply with the
standards of OMB Circular A -87, Revised, "Cost Principles for State and Local Governments."
C. Payment will be made by WSDOT on a reimbursable basis for actual costs less any pre - payment
discounts, rebates, and /or refunds. Payment is subject to the submission to and approval by WSDOT of
appropriate invoices and required supporting documents as identified in Exhibit I, Scope of Work, 3.1
through 3.3. In no event shall the total amount reimbursed by WSDOT exceed the state funds identified
in the caption space titled "Project Equipment Reimbursement" unless amended thereto. WSDOT shall
reimburse the TRANSIT AGENCY the invoice purchase cost of the Project Equipment not to exceed the
per vehicle unit cost specified in Exhibit I, Scope of Work, 2.1 excluding miscellaneous charges as
described in Section 5, Miscellaneous Charges and Conditions, and excluding TRANSIT AGENCY's
local match amount as set forth in Exhibit 1, Scope of Work, 4.1.
D. TRANSIT AGENCY shall request payment from WSDOT within thirty (30) days of receipt and
acceptance of the Project Equipment. The TRANSIT AGENCY shall submit an invoice by July 15,
2012, for any unreimbursed eligible expenditures incurred between July 1, 2011, and June 30,
2012. If the TRANSIT AGENCY is unable to provide an invoice by this date, the TRANSIT
AGENCY 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
GCB 1134 Page 2 of 31
be limited to the amount accrued as set forth in this section. The TRANSIT AGENCY's final
dp 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 termination of this AGREEMENT,
whichever is sooner. Any request for state funds received after July 15, 2013 will not be eligible for
reimbursement. WSDOT shall reimburse the TRANSIT AGENCY within thirty (30) days from the
receipt of the request for payment that include the aforementioned appropriate invoices and required
supporting documents.
Section 7
Vehicle Title
The Project Equipment titles shall designate WSDOT as the legal owner and the TRANSIT AGENCY as
the registered owner through the useful life of the Project Equipment, which is identified in Exhibit I,
Scope of Work, 1.1. WSDOT will release the interest of legal ownership of the Project Equipment to
TRANSIT AGENCY within thirty (30) days after the quarter in which the useful life of the Project
Equipment, which is identified in Exhibit 1, Scope of Work, 1.1 has been met.
Section 8
Contracts Under this Agreement
A. Unless otherwise authorized in advance in writing by WSDOT, the TRANSIT AGENCY shall not
assign any portion of the work to be performed under this AGREEMENT, 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. The TRANSIT AGENCY may not in any way
encumber the Project Equipment.
B. The TRANSIT AGENCY agrees to include Sections 9 through 31, 38 and 39 of this AGREEMENT
it 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 21.C, 21.D and 21E.3 of this AGREEMENT. It is further agreed that those clauses shall
not be modified, except to identify the subcontractor or other person or entity that will be subject to its
provisions. In addition, the following provision shall be included in any advertisement or invitation to bid
for any procurement by the TRANSIT AGENCY 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 9
Performance and Reporting
A. The TRANSIT AGENCY shall submit to WSDOT, or WSDOT's designated agent, a monthly VIP
performance report for each AGREEMENT in a format as set forth in Exhibit II, RVCT and WSRO VP
Performance Indicator Report. TRANSIT AGENCY is required to submit the monthly VIP Report to
WSDOT, or WSDOT's designated agent, no later than the end of the current month for the previous
month of operation. The report will enable WSDOT to accurately record the performance of the VIP. The
TRANSIT AGENCY shall also submit to WSDOT a quarterly fleet update in a format as set forth in
Exhibit III, VIP WSDOT- Funded Vanpool Van Quarterly Fleet Update, which shall include specific
information related to WSDOT funded Project Equipment vans used in the TRANSIT AGENCY's
vanpool program. The quarterly fleet report will enable WSDOT to track when WSDOT funded Project
Equipment is placed into service as well as when the TRANSIT AGENCY surpluses or disposes of
0 vehicles that were replaced by WSDOT funded Project Equipment. TRANSIT AGENCY shall submit,
the quarterly fleet report to WSDOT until such time as all Project Equipment acquired under this
agreement has been placed in service and all TRANSIT AGENCY vanpool vehicles, that have been
replaced by WSDOT funded Project Equipment, have been disposed of. The quarterly fleet report is due
GCB 1134 Page 3 of 31
to WSDOT by the 30 day of October, January, April, and July for the 1s
2 and 4 quarters of the
state fiscal year, respectively. TRANSIT AGENCY's failure to meet any of the above identified report
submittal timelines can result in the TRANSIT AGENCY being considered to be in breach of contract
which may prevent TRANSIT AGENCY from receiving future VIP grant funds in the next biennium. •
B. The TRANSIT AGENCY shall also supply financial statements, data, records, contracts, and other
documents related to the Project as may be necessary and requested by FTA.
Section 10
Use of Project Equipment
A. The TRANSIT AGENCY agrees that the Project Equipment shall be used for commuter ridesharing
as defined in RCW 46.74.010(1). Personal use of the van by the driver will be permitted if the
TRANSIT AGENCY's vanpool program policies allow this usage.
B. TRANSIT AGENCY will operate the Project Equipment as part of the TRANSIT AGENCY's
vanpool program placing the Expansion Project Equipment into service within nine (9) months and
placing the Replacement Project Equipment into service within three (3) months, respectively, from
acceptance date. The TRANSIT AGENCY may have up to a twenty percent (20 %) spare ratio. For every
five (5), vanpool vehicles purchased, one (1) may be operated as a spare vehicle. If the Project
Equipment, excluding a twenty percent (20 %) spare ratio, is not placed in use within the time frame
identified above from receipt and acceptance date, or if the Project Equipment is being used for purposes
other than vanpool activities, the actions and remedies regarding the Project Equipment as described in
Exhibit I, 5.1 will apply.
C. The TRANSIT AGENCY further agrees that it will not (1) use or permit the use of the Project
Equipment in a manner inconsistent with the TRANSIT AGENCY's policies, so as to void any insurance
covering the Project Equipment; or (2) knowingly use the Project Equipment in a negligent manner; or
(3) permit the Project Equipment to become subject to any liens, charges, or encumbrances. The
TRANSIT AGENCY shall keep records with regard to the use of the Project Equipment, consistent with
TRANSIT AGENCY's records keeping and retention policies, and shall submit to WSDOT upon request
such information as is required in order to assure compliance with this section. TRANSIT AGENCY
shall immediately notify WSDOT in writing during the Project Period if any Project Equipment funded
by the WSDOT is used in a manner substantially different from that described in this AGREEMENT.
Section 11
Remedies for Misuse or Noncompliance
The TRANSIT AGENCY shall not use any Project Equipment in a manner that varies from the use
described in Section 2, Scope of Project and Section 10, Use of Project Equipment of this
AGREEMENT. If the WSDOT determines that the Project Equipment has been used in a manner
different from that described in Section 2 and Section 10 of this AGREEMENT, the WSDOT will
terminate this AGREEMENT and the TRANSIT AGENCY shall be liable for damages for the breach of
this AGREEMENT, and any other remedies included in this AGREEMENT. If any participation and
funding, whether state or federal, is either reduced or cancelled as a result of a breach by the TRANSIT
AGENCY, the TRANSIT AGENCY is then liable for all damages from the breach, even though those
damages may exceed the price payable under this AGREEMENT.
Section 12
Maintenance of Project Equipment
The TRANSIT AGENCY shall maintain the Project Equipment in good repair at all times. All services,
materials, and repairs in connection with the use and operation of the Project Equipment are at the
TRANSIT AGENCY's expense. The TRANSIT AGENCY agrees to service the Project Equipment and
replace parts at intervals recommended in the manual provided by the manufacturer of such equipment, or
sooner if consistent with the TRANSIT AGENCY's maintenance plans. TRANSIT AGENCY must have
a Transit Asset Management Plan certified by WSDOT. WSDOT and FTA shall not be liable for repairs,
nor shall any such repairs be charged to either entity. The TRANSIT AGENCY shall comply with the
GCB 1134 Page 4 of 31
Equipment management requirements identified in 49 CFR Part 18.32(d), and any reference therein to
• "grantee" shall mean the TRANSIT AGENCY. The TRANSIT AGENCY shall retain records of all
maintenance and parts replacement performed on the Project Equipment. Maintenance and service
records of Project Equipment shall be kept on file for each vehicle in the Project Equipment inventory and
be made available to WSDOT and /or FTA upon request. WSDOT and /or FTA personnel may
periodically inspect the Project Equipment. Failure to follow correct maintenance procedures during the
Project Period may be grounds for termination of this AGREEMENT. WSDOT and /or FTA must
approve modifications to the Project Equipment or the installation of additional equipment in advance and
in writing.
Section 13
General Compliance Assurance
The TRANSIT AGENCY agrees to give reasonable guarantees that it and its subcontractors or 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 TRANSIT AGENCY agrees to comply
with the provisions of 49 CFR Part 18 and cost principles as defined in OMB Circular A -87. The
TRANSIT AGENCY 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
TRANSIT AGENCY 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 TRANSIT AGENCY with the
provisions of this assurance, but also have the right to seek judicial enforcement with regard to any matter
arising under the Federal transit laws and regulations, and this Assurance. It is understood by the
TRANSIT AGENCY that this assurance obligates the TRANSIT AGENCY and any transferee of the
TRANSIT AGENCY, or said transferee's successor(s), for the useful life of the Project Equipment.
8 Section 14
P rocurement
T he TRANSIT AGENCY shall make purchases of any Project Equipment pursuant to this AGREEMENT
through procurement procedures approved in advance by WSDOT and consistent with the following
provisions:
A. General Procurement Requirements. The TRANSIT AGENCY 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 U.S. DOT third party procurement regulations of 49 CFR § 18.36 and other
applicable Federal Regulations pertaining to third party procurements and subsequent amendments
thereto. The TRANSIT AGENCY shall also comply with the provisions of FTA Circular 4220.1.F, "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 TRANSIT AGENCY. The TRANSIT AGENCY agrees that it may not use FTA
assistance to support its third party procurements unless there is satisfactory compliance with Federal laws
and regulations.
B. Full and Open Competition. In accordance with 49 USC § 5325(a), the TRANSIT AGENCY agrees
to conduct all procurement transactions in a manner that provides full and open competition as determined
by FTA.
C. Exclusionary or Discriminatory Specifications. Apart from inconsistent requirements imposed by
Federal laws or regulations, the TRANSIT AGENCY agrees to comply with the requirements of 49 USC
§ 5325(h) by not expending or otherwise using any Federal assistance awarded from FTA funds to
support a procurement using exclusionary or discriminatory specifications.
D. Method of Acquisition. In compliance with 49 USC§ 5325(0, the TRANSIT AGENCY agrees that
i any third party contract award made for rolling stock will be based on initial capital costs, or on
performance, standardization, life cycle costs, and other factors, or on a competitive procurement process.
GCB 1134 Page 5 of 31
E. Preference for United States Products and Services. To the extent applicable, the TRANSIT
AGENCY agrees to comply with the following U.S. preference requirements:
1. Buy America. The TRANSIT AGENCY 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 TRANSIT AGENCY 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 TRANSIT AGENCY 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.
F. Bus Testing. To the extent applicable, the TRANSIT AGENCY agrees to comply with the
requirements of 49 USC § 5318(e) and FTA regulations, "Bus Testing," 49 CFR Part 665, and any
revisions thereto.
G. Pre -Award and Post - Delivery Requirements. The TRANSIT AGENCY agrees to comply with the
requirements of 49 USC § 5323(m) and FTA regulations, "Pre -Award and Post - Delivery Audits of
Rolling Stock Purchases," 49 CFR Part 663, and any revisions thereto.
H. Geographic Restrictions. The TRANSIT AGENCY agrees to not use any state or local geographic
preference, except those expressly mandated or encouraged by Federal statute or as permitted by FTA.
I. In -State Bus Dealer Restrictions. In accordance with 49 USC § 5325(i), the TRANSIT AGENCY
agrees that any State law requiring buses to be purchased through in -State dealers will not apply to
acquisitions of vehicles financed with Federal assistance authorized under 49 USC Chapter 53. This
provision does not preclude States from requiring dealers from satisfying State imposed dealer licensing
requirements.
J. Preference for Recycled Products. To the extent applicable, The TRANSIT AGENCY 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 TRANSIT AGENCY 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.
K. National Intelligent Transportation Systems Architecture and Standards. To the extent
applicable, the TRANSIT AGENCY agrees to conform to the National Intelligent Transportation Systems
(ITS) Architecture and Standards as required by SAFETEA -LU § 5307(c), 23 USC§ 512 note, and follow
the provisions of FTA Notice, "FTA National ITS Architecture Policy on Transit Projects," 66 Fed. Reg.
1455 et seq., January 8, 2001, and any other implementing directives FTA may issue at a later date,
except to the extent FTA determines otherwise in writing.
L. 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
TRANSIT AGENCY 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 15
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
GCB 1134 Page 6 of 31
required by FTA as set forth in FTA. Circular 4220.1 F are hereby incorporated by reference. Anything to
0 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 TRANSIT AGENCY 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 TRANSIT AGENCY 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
TRANSIT AGENCY's failure to so comply shall constitute a material breach of this AGREEMENT.
Section 16
No Obligation by the Federal Government
A. WSDOT and the TRANSIT AGENCY 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 TRANSIT AGENCY,
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 TRANSIT AGENCY 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 TRANSIT
AGENCY hereby agrees to include this provision in all contracts it enters into for the employment of any
8 individuals, procurement of any materials, or the performance of any work to be accomplished under this
AGREEMENT.
Section 17
Ethics
A. Code of Ethics. The TRANSIT AGENCY 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, sub - agreements, leases, third party contracts, or other
arrangements supported by Federal assistance. The code or standards shall provide that the TRANSIT
AGENCY'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 TRANSIT AGENCY 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 TRANSIT AGENCY'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 TRANSIT AGENCY's officers, employees, board members, or agents, or by
subcontractors, lessees or sub - recipients, other participants or their agents. The TRANSIT AGENCY
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 TRANSIT AGENCY's code or standards shall prohibit the
TRANSIT AGENCY'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
ill 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;
GCB 1134 Page 7 of 31
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 TRANSIT AGENCY'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 third party contractor or
impair its objectivity in performing the work under this AGREEMENT.
B. Debarment and Suspension. The TRANSIT AGENCY 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 Government -wide Debarment and
Suspension (Non- procurement) ", 2 CFR Part 180. The TRANSIT AGENCY 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 List System" at http: / /epls.gov/ before entering into any third subagreement, lease,
third party contract, or other arrangement in connection with the Project.
C. Bonus or Commission. The TRANSIT AGENCY affirms that it has not paid, and agrees not to pay,
any bonus or commission to obtain approval of its application for financial assistance for this Project.
D. Relationships with Employees and Officers of WSDOT. The TRANSIT AGENCY shall not
extend any loan, gratuity or gift of money in any form whatsoever to any employee or officer of WSDOT,
nor shall the TRANSIT AGENCY rent or purchase any equipment and materials from any employee or
officer of WSDOT.
E. Employment of Former WSDOT Employees. The TRANSIT AGENCY 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 TRANSIT AGENCY agrees to:
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 legislature on legislation or
appropriations, except through proper, official channels.
G. Employee Political Activity. To the extent applicable, the TRANSIT AGENCY agrees to comply
with the provisions of the Hatch Act, 5 USC §§ 1501 through 1508, and §§ 7324 through 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
GCB 1134 Page 8 of 31
assistance pursuant to the SAFETEA -LU provisions and /or receiving FTA assistance to whom the Hatch
4110 Act does not otherwise apply.
H. False or Fraudulent Statements or Claims. The TRANSIT AGENCY 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 TRANSIT AGENCY
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 TRANSIT AGENCY 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
TRANSIT AGENCY to the extent the Federal Government deems appropriate.
2. Criminal Fraud: If the TRANSIT AGENCY 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 TRANSIT AGENCY the penalties of 49 USC § 5323(1), 18 USC § 1001 or other
applicable Federal Law to the extent the Federal Government deems appropriate.
I. Trafficking in Persons. To the extent applicable, the TRANSIT AGENCY agrees to comply with,
and assures the compliance of each sub - recipient 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
so of 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, and accessible
at http: / /www.fta.dot.gov /documents /TEAM Master Agreement 2011 17- Master.pdf consistent with U.S.
OMB guidance, "Trafficking in Persons: Grants and Cooperative Agreements," 2 CFR Part 175.
Section 18
Compliance with Laws and Regulations
The TRANSIT AGENCY 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 TRANSIT AGENCY will adhere to
all of the nondiscrimination provisions in chapter 49.60 RCW.
Section 19
Civil Rights
The TRANSIT AGENCY shall comply with all applicable civil rights laws, regulations and directives
except to the extent that the Federal Government determines otherwise in writing. These include but are
not limited to, the following:
A. Nondiscrimination in Federal Transit Programs. The TRANSIT AGENCY agrees to comply, and
assures compliance by each third party contractor, lessee or other participant at any tier, with the
provisions of 49 USC §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 TRANSIT AGENCY agrees to comply,
and assure compliance by each third party contractor at any tier, with all provisions prohibiting
on the basis of race, color, or national origin, of Title VI of the Civil Rights Act of 1964, as
• discrimination 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 TRANSIT AGENCY also agrees
GCB 1134 Page 9 of 31
to follow all applicable provisions 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 TRANSIT AGENCY agrees to comply, and assures
compliance by each third party contractor, lessee or other participant at any tier of the Project, with all
equal employment opportunity (EEO) provisions of 49 USC § 5332, with requirements of Title VII of the
Civil Rights Act of 1964, as amended, 42 USC § 2000e et seq, and any implementing Federal Regulations
and any subsequent amendments thereto. Except to the extent FTA determines otherwise in writing, the
TRANSIT AGENCY also agrees to comply with any applicable Federal EEO directives that may be
issued. Accordingly:
1. The TRANSIT AGENCY 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 TRANSIT
AGENCY 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 TRANSIT AGENCY shall also comply with any
implementing requirements FTA may issue.
2. If the TRANSIT AGENCY 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 TRANSIT AGENCY to carry out the terms of that EEO
program shall be treated as a violation of this AGREEMENT. Upon notification to the TRANSIT
AGENCY 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 TRANSIT AGENCY's eligibility to obtain future Federal financial
assistance for transportation projects.
D. Nondiscrimination on the Basis of Sex. The TRANSIT AGENCY 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 TRANSIT AGENCY 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 TRANSIT AGENCY 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 TRANSIT AGENCY agrees to comply with any implementing
requirements FTA may issue.
G. Disabilities- Access. The TRANSIT AGENCY 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 TRANSIT AGENCY
GCB 1134 Page 10 of 31
also agrees to comply with all applicable requirements of section 504 of the Rehabilitation Act of 1973, as
410 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 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 TRANSIT
AGENCY 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. ATBCB regulations, "Electronic and Information
Technology Accessibility Standards," 36 CFR Part 1194; FTA regulations, "Transportation for Elderly
8 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.
H. Drug or Alcohol Abuse. Confidentiality and Other Civil Rights Protections. The TRANSIT
AGENCY agrees to comply with the confidentiality and other civil rights provisions of the Drug Abuse
Office and Treatment Act of 1972, as amended 21 USC §§ 1101 et seq.; with the Comprehensive Alcohol
Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, as amended; 42 USC §§
4541 et seq.; and comply with the Public Health Service Act of 1912, as amended, 42 USC §§ 290dd
through 290dd -2, and any subsequent amendments to these laws. The TRANSIT AGENCY 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.
I. Access to Services for Persons with Limited English Proficiency. The TRANSIT AGENCY
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.
J. Environmental Justice. The TRANSIT AGENCY 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.
0 K. Other Nondiscrimination Statutes. The TRANSIT AGENCY 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.
GCB 1134 Page 11 of 31
Section 20
Participation of Disadvantaged Business Enterprises
The TRANSIT AGENCY shall take the following measures to facilitate participation by disadvantaged
•
business enterprises (DBE) in the Project:
A. The TRANSIT AGENCY 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 TRANSIT AGENCY 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 TRANSIT AGENCY 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 Federal assistance derived from the U.S. DOT. The
TRANSIT AGENCY'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 TRANSIT AGENCY 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 §§ 3 801 et seq.
Section 21
Energy Conservation and
Environmental Requirements
D. Energy Conservation. The TRANSIT AGENCY 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 TRANSIT AGENCY agrees to comply with all applicable
requirements of the National Environmental Policy Act (NEPA) of 1969, as amended, 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 TRANSIT AGENCY 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
funds, identified in "Project Equipment Reimbursement" of this AGREEMENT, exceeds $100,000, the
TRANSIT AGENCY shall 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,
GCB 1134 Page 12 of 31
do and 40 CFR parts 85, 86, 93 and 600, any revisions thereto. in the event that the funds, identified in
"Project Equipment Reimbursement" exceeds $100,000, the TRANSIT AGENCY 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 TRANSIT AGENCY 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 22
Accounting Records -
A. Project Accounts. The TRANSIT AGENCY 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 TRANSIT AGENCY 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 TRANSIT AGENCY agrees to deposit in
a financial institution, all Project payments it receives from the Federal Government and record in the
8 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 (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 and Program Income. The TRANSIT AGENCY agrees to
support all costs charged to the Project, including any approved services contributed by the TRANSIT
AGENCY or others, with properly executed payrolls, time records; invoices, contracts, or vouchers
describing in detail the nature and propriety of the charges. The TRANSIT AGENCY also agrees to
maintain accurate records of all program income derived from implementing the Project, except certain
income determined by FTA to be exempt from Federal program income requirements.
D. Checks, Orders, and Vouchers. The TRANSIT AGENCY 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 23
Audits, Inspection, and Retention of Records
A. Submission of Proceedings, Agreements, and Other Documents. During the course of the Project
and for six (6) years thereafter, the TRANSIT AGENCY 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. 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
TRANSIT AGENCY's obligations hereunder shall be extended until the conclusion of that pending audit,
0 enforcement, or litigation process.
B. General Audit Requirements. The TRANSIT AGENCY agrees to perform the financial and
compliance audits required by the Single Audit Act Amendments of 1996, 31 USC §§ 7501 et seq. As
GCB 1134 Page 13 of 31
provided by 49 CFR § 18.26, these financial and compliance audits must comply with the provisions of
OMB Circular A -133, Revised, "Audits of States, Local Governments, and Non - Profit Organizations,"
the latest OMB A -133 Compliance Supplement for U.S. DOT, and any further revision or supplement
thereto. The TRANSIT AGENCY also agrees to obtain any other audits required by the Federal
Government. The TRANSIT AGENCY agrees that audits will be carried out in accordance with U.S.
General Accounting Office "Government Auditing Standards." The TRANSIT AGENCY agrees to
obtain any other audits required by WSDOT. Project closeout will not alter the TRANSIT AGENCY's
audit responsibilities.
C. Inspection. The TRANSIT AGENCY 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, maintenance records, and other data, and to
audit the books, records, and accounts of the TRANSIT AGENCY and its contractors pertaining to the
Project. The TRANSIT AGENCY 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 24
Labor Provisions
A. Contract Work Hours and Safety Standards Act. The TRANSIT AGENCY 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 U.S. DOL 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 TRANSIT AGENCY 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 TRANSIT AGENCY 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 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 forty (40)
hours in such workweek.
D. Payrolls and Basic Records. Payrolls and basic records relating thereto shall be maintained by the
TRANSIT AGENCY during the course of the work and preserved for a period of six (6) years thereafter
for all laborers and mechanics working at the site of the work (or under the United States Housing Act of
1937, or under the Housing Act of 1949, in the construction or development of the Project). Such records
shall contain the name, address, and social security number of each such worker, his or her correct •
classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona
fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -
GCB 1134 Page 14 of 31
Bacon Act, Public -Law 88 -349, as amended by 40 USC § 3141 et seq., and pursuant to 49 USC § 5333(a)
• et seq., daily and weekly number of hours worked, deductions made and actual wages paid. Whenever
the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic
include the amount of any costs reasonably anticipated in providing benefits under a plan or program
described in section 1(b)(2)(B) of the Davis -Bacon Act, Public Law 88 -349, as amended by 40 USC §
3141 et seq. and pursuant to 49 USC §5333(a), the TRANSIT AGENCY 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. TRANSIT AGENCY'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 TRANSIT AGENCY and any subcontractor
responsible therefore shall be liable for the unpaid wages. In addition, such TRANSIT AGENCY 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 TRANSIT AGENCY shall upon its
0 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 TRANSIT
AGENCY or subcontractor under any such contract or any other Federal contract with the same prime
TRANSIT AGENCY, or any other federally- assisted contract subject to the Contract Work Hours and
Safety Standards Act, which is held by the same prime TRANSIT AGENCY, such sums as may be
determined to be necessary to satisfy any liabilities of such TRANSIT AGENCY 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 TRANSIT AGENCY 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 U. S. DOL guidelines, "Section 5333(b), Federal Transit Law," 29 CFR Part 215 and
any amendments thereto. These terms and conditions are identified in U.S. DOL's certification of public
transportation employee protective arrangements to FTA. The TRANSIT AGENCY agrees to implement
the Project in accordance with the conditions stated in that U.S. DOL certification, which certification and
any documents cited therein are incorporated by reference and made part of this AGREEMENT. The
TRANSIT AGENCY 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 U.S. DOL for application to the Project, in
accordance with U.S. DOL guidelines, "Section 5333(b), Federal Transit Law," 29 CFR Part 215, and any
revision thereto.
Section 25
Planning and Private Enterprise
FTA Requirements. The TRANSIT AGENCY agrees to implement the Project in a manner consistent
ill with the plans developed in compliance with the applicable planning and private enterprise provisions of
49 USC §§ 5303, 5304, 5306, and 5323(a)(I); joint Federal Highway Administration (FHWA) /FTA
regulations, "Statewide Transportation Planning: Metropolitan Transportation Planning," 23 CFR Part
GCB 1134 Page 15 of 31
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 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 TRANSIT
•
AGENCY 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
TRANSIT AGENCY 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 26
Substance Abuse
A. Drug -free Workplace. To the extent applicable, the TRANSIT AGENCY 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.
B. Privacy Act. The TRANSIT AGENCY 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 27
Federal "$1 Coin" Requirements
To the extent required by the Federal Government, the TRANSIT AGENCY agrees to comply with the
provisions of section 104 of the Presidential $1 Coin Act of 2005, 31 USC § 5112(p), so that the
TRANSIT AGENCY'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 TRANSIT AGENCY
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 28
Liens on Equipment
WSDOT shall hold legal title to all vehicles the TRANSIT AGENCY acquires and have legal ownership
to any non - vehicle Project Equipment the TRANSIT AGENCY acquires or modifies using the funds
identified in the caption space of this AGREEMENT titled "Project Equipment Reimbursement ". The
TRANSIT AGENCY accepts WSDOT's legal ownership of the Project Equipment during its useful life
and agrees that it shall not use the Project Equipment as collateral, nor shall the TRANSIT AGENCY
encumber the Project Equipment in any way. The TRANSIT AGENCY shall follow the terms stated in
Section 10 regarding the use of all Project Equipment. For non - vehicle Project Equipment, WSDOT's
lien shall equal the proportional funded share, as identified in this AGREEMENT, of the disposable value
of the Project Equipment. Satisfaction of WSDOT's lien may be satisfied only by proper disposal of the
Project Equipment in a manner determined by WSDOT.
Section 29
Loss or Damage to Project Equipment and Procedures
A. Until such time that WSDOT releases legal ownership in said Project Equipment to the TRANSIT
AGENCY, the TRANSIT AGENCY, at its own expense, shall cover any loss, theft, damage, or
destruction of the Project Equipment using either of the following methods:
GCB 1134 Page 16 of 31
1. The TRANSIT AGENCY shall maintain Comprehensive and Collision insurance adequate to
0 cover the value of the Project Equipment; the TRANSIT AGENCY shall supply a copy of the Certificate
of Insurance specifying such coverage to WSDOT before operating or moving any Project Equipment; or
2. The TRANSIT AGENCY shall provide a written certificate of self - insurance to WSDOT before
operating or moving any Project Equipment. The TRANSIT AGENCY will cover from its own resources
the costs of repairing or replacing any Project Equipment, if it is stolen, damaged, or destroyed in any
manner.
B. If the damage to the Project Equipment does not result in a total loss, payments for damage shall be
paid directly to the TRANSIT AGENCY. The TRANSIT AGENCY shall, within thirty (30) days, either:
1. Devote all of the insurance proceeds received to repair the Project Equipment and place it back in
service, and the TRANSIT AGENCY shall, at its own expense, pay any portion of the cost of repair
which is not covered by insurance; or
2. In the event the TRANSIT AGENCY certified to self - insurance, devote all funds necessary to
repair the Project Equipment and place it back into service.
C. The TRANSIT AGENCY will notify WSDOT within five (5) working days of an accident or incident
when Project Equipment is damaged and sustains disabling damage which requires said Project
Equipment to be:
1. Removed from service beyond ten (10) working days for repairs; or,
2. Permanently removed (due to being declared a total loss) from service.
Failure by the TRANSIT AGENCY to notify WSDOT within the prescribed timeframe identified above
will result in the TRANSIT AGENCY being deemed to be in breach of contract which may result in
TRANSIT AGENCY being ineligible to receive future VIP funds.
D. If the Project Equipment is a total loss, either by theft 'or :damage, the insurance proceeds or equivalent
shall be paid directly to WSDOT. The TRANSIT AGENCY shall 'within sixty (60) days of loss, theft, or
damage, notify WSDOT that it either:
1. Intends to replace the lost Project Equipment; or
2. Does not intend to replace the lost Project Equipment.
Failure by the TRANSIT AGENCY to notify WSDOT within the prescribed timeframe identified above
will result in the TRANSIT AGENCY being deemed to be in breach of contract which may result in
TRANSIT AGENCY being ineligible to receive future VIP funds.
E. The TRANSIT AGENCY shall maintain a file on site that includes copies of all accident records,
including but not limited to copies of completed local law official accident/incident records, involving
Project Equipment accidents. In addition, if the Project Equipment has been declared a total loss by the
insurance company, the TRANSIT AGENCY will maintain a total loss vehicle file which includes copies
of all accident and loss related documentation including but not limited to the following:
• A copy of all completed local law official accident reports;
• Passenger statements;
• Vanpool vehicle odometer reading at the time of the accident; and,
• Copies of any written communication(s) and correspondence the TRANSIT AGENCY received
from or sent to; WSDOT, Washington State Transit Insurance Pool (WSTIP), insurance
companies, loss /subrogation companies, attorneys, injured parties, law enforcement agencies, etc.
Failure by the TRANSITsAGENCY to notify WSDOT within the prescribed timeframe identified above
iii will result in the TRANSIT AGENCY being deemed to be in breach of contract which may result in
TRANSIT AGENCY being ineligible to receive future VIP funds.
GCB 1134 Page 17 of 31
F. Should the TRANSIT AGENCY decide to replace the damaged Project Equipment declared a total
loss during the project period and upon completion of the Project Equipment total Loss settlement, the
TRANSIT AGENCY shall either:
•
1. Purchase a new or used replacement vehicle for the Project Equipment loss within five (5) months'
from receipt of the total loss settlement proceeds. Said new or used purchased replacement
vehicle must be:
a. Similar to the type of Project Equipment being replaced, including but not limited to mini
or maxi van, model type, model year, features and equipment, mileage; and,
b. Be equal to or more than the National Automobile Dealers Association Northwest -
determined value of the Project equipment at the time of the accident.
2. Replace the Project Equipment with one of its own purchased. vehicles.
G. Prior approval from WSDOT is required if the TRANSIT' AGENCY plans to replace the Project
Equipment with one of its own purchased vehicles. Said replacement vehicles must be:
1. Similar to the type of Project Equipment being replaced, including but not limited to mini or maxi
van, model type, model year, features and equipment, mileage; and,
2. Be equal to or more than the National Automobile Dealers Association Northwest- determined
value of the Project equipment at the time of the accident.
Once the TRANSIT AGENCY receives the purchased replacement vehicle, the. TRANSIT AGENCY
must submit to WSDOT within 30 days of vehicle acceptance a copy of the vendor invoice and the
registration showing WSDOT as the legal owner.
Failure by the TRANSIT AGENCY to submit the documentation as set forth above to WSDOT within the
prescribed timeframe identified above will result in the TRANSIT AGENCY being deemed to be in
breach of contract which may result in TRANSIT AGENCY being ineligible to receive future VIP funds.
H. If WSDOT determines that the total loss occurred under circumstances in :which the TRANSIT
AGENCY fulfilled its obligations under this AGREEMENT, WSDOT would either payy or rebate to the
TRANSIT AGENCY its proportionate share of such proceeds received.
WSDOT will not reimburse the TRANSIT AGENCY for any Project Equipment replacement cost or any
miscellaneous cost as identified in Section 5, Miscellaneous Charges and Conditions.
Section 30
International Travel
International travel, including but not limited to travel to and from Canada, will not be allowed.
Section 31
Limitation of Liability
WSDOT shall not be liable to the TRANSIT AGENCY or to anyone else, including vanpool van drivers
and riders for any liability, loss, or damage of any kind and however caused or alleged to be caused
directly or indirectly by the Project Equipment; or 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 Project Equipment provided pursuant to this AGREEMENT, or from any liability
of any nature growing out of performance of this AGREEMENT or Project Equipment on the part of the
TRANSIT AGENCY, its officers, employees, agents or subcontractors. To the maximum extent
permitted by law, the TRANSIT AGENCY shall indemnify, hold harmless and defend WSDOT and all
authorized agents, and employees from all claims, actions, costs, damages, both to persons and property,
or expenses of any nature whatsoever by reason of the acts or omissions of the TRANSIT AGENCY, its
assignees, agents contractors, licensees, invitees, employees or any person whomsoever, arising out of or
in connection with any acts or activities under this AGREEMENT. The TRANSIT AGENCY further
agrees to defend WSDOT, its agent or employees in any litigation, including payment of any costs or
GCB 1134 Page 18 of 31
attorney's fees, for any claim or action commenced, arising out of or in connection with any acts or
ip activities authorized by this AGREEMENT. This obligation shall not include such claims, costs, or
damages or expenses, which may be caused by the sole or concurrent negligence of WSDOT or its
authorized agents or employees. In the event that any lien is placed upon property of WSDOT or any of
its officers, principals, agents, or employees as a result of the negligent acts, errors, or omissions of the
TRANSIT AGENCY, its officers, employees, agents, subcontractors, vanpool drivers and /or riders, the
TRANSIT AGENCY shall at once cause the same to be dissolved and discharged by giving bond or
otherwise. TRANSIT AGENCY waives its immunity under Title 51 RCW to the extent it is
required to indemnify, defend and hold harmless WSDOT and its officers, principals, agents or
employees.
Section 32
Insurance
The TRANSIT AGENCY shall obtain and keep in force throughout the Project Period, public liability
and property damage insurance in amounts and with companies acceptable to WSDOT. The TRANSIT
AGENCY shall provide WSDOT a Certificate of Insurance or a declaration of self - insurance as
identified in Exhibit I, Scope of Work, 3.3.2 or 3.3.3, as applicable, with TRANSIT AGENCY's request
for reimbursement. Any declaration of self - insurance must include a description of how the self -
insurance pool is funded. WSDOT shall be specifically named as an additional insured in the
insurance policy, which insures the TRANSIT AGENCY. The coverage shall be not less than
$5,000,000 single limit bodily injury and property damage per occurrence. As required by Section 29
the Transit Agency shall maintain Collision and Comprehensive insurance and WSDOT shall be named
as loss payee on any insurance purchased covering collision and comprehensive over the life of the
Project Equipment. The TRANSIT AGENCY agrees to give WSDOT thirty (30) days advance written
it notice of cancellation or substantial change in its insurance coverage. Coverage in the minimum amount
set forth herein shall not be construed to relieve the TRANSIT AGENCY from liability in excess of such
coverage. Further, WSDOT reserves all claims or rights of action against the TRANSIT AGENCY as if
WSDOT were not named in the subject policy.
Section 33
Charter Service Operations
The TRANSIT AGENCY agrees that neither it nor any public transportation operator performing work in
connection with a Project financed under 49 U.S.C. chapter 53 or under 23 U.S.C. §§ 133 or 142, will
engage in charter service operations, except as authorized by 49 U.S.C. § 5323(d) and FTA regulations,
"Charter Service," 49 C.F.R. 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
TRANSIT AGENCY has selected in its latest annual Certifications and Assurances is incorporated by
reference and made part of this Agreement for the Project. If the TRANSIT AGENCY 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 TRANSIT AGENCY
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 TRANSIT AGENCY'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 TRANSIT AGENCY, 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 those regulations.
• Section 34
S chool Bus Operations
The TRANSIT AGENCY agrees that neither it nor any public transportation operator performing work in
connection with a Project financed under 49 U.S.C. chapter 53 or under 23 U.S.C. §§ 133 or 142, will
GCB 1134 Page 19 of 31
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 U.S.C.
§§ 5323(0 or (g), as applicable, and FTA regulations, "School Bus Operations," 49 C.F.R. Part 605 to the
•
extent consistent with 49 U.S.C. §§ 5323(0 or (g), in accordance with any School Transportation
Operations regulations or FTA directives that may be issued at a later date, except to the extent that FTA
determines otherwise in writing. The School Transportation Operations Agreement the TRANSIT
AGENCY 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 TRANSIT AGENCY
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 C.F.R. Part 605, to the extent those regulations are consistent with 49 U.S.C. §§ 5323(0 or
(g), the TRANSIT AGENCY understands and agrees that: (1) the requirements of FTA's School Bus
Operations regulations, 49 C.F.R. Part 605, to the extent consistent with 49 U.S.C. §§ 5323(0 or (g), will
apply to any school transportation service it or its sub - recipients, lessees, third party contractor, or other
participants in the project provide, (2) the definitions of FTA's School Bus Operations regulations will
apply to the TRANSIT AGENCY's school transportation operations, and (3) if there is a violation of
FTA's School Bus Operations regulations to the extent consistent with 49 U.S.C. §§ 5323(0 or (g ), FTA
will bar the TRANSIT AGENCY, sub - recipient, lessee, third party contractor, or other Project participant
operating public transportation that has violated FTA's School Bus Operations regulations, 49 C.F.R. Part
605, to the extent consistent with 49 U.S.C. §§ 5323(0 or (g), from receiving Federal transit assistance in
an amount FTA considers appropriate.
Section 35
Freedom of Information Act
TRANSIT AGENCY 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 TRANSIT AGENCY 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.
Section 36
Universal Identifier
TRANSIT AGENCY 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 37
Agreement Modifications
Either PARTY may request changes in these provisions. Such changes, which are mutually agreed upon
shall be incorporated as written amendments to this AGREEMENT. No variation or alteration of the
terms of this AGREEMENT shall be valid unless and until such variation or alteration is made in writing
and signed by authorized representatives of the PARTIES thereto.
Section 38
Termination
A. Termination for Convenience. WSDOT and /or the TRANSIT AGENCY may suspend or terminate
this AGREEMENT, in whole or in part, by written notice to the other PARTY in accordance with 49
CFR Part 18 § 18.44. WSDOT and the CONTRACTOR shall agree upon the AGREEMENT termination
provisions including but not limited to the terms and conditions applicable to the termination, and in the
case of partial termination the portion to be terminated, and Project Equipment disposal. 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
GCB 1134 Page 20 of 31
was made WSDOT may terminate the award in its entirety. WSDOT.may suspend all or any part of the
0 financial assistance provided herein, at any time by written notice to the TRANSIT AGENCY and the
PARTIES may terminate this AGREEMENT for convenience for reasons including, but not limited to,
the following:
1. WSDOT determines, in its sole discretion, that the continuation of the Project would not produce
beneficial results commensurate with the further expenditure of funds;
2. The TRANSIT AGENCY 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;
3. The TRANSIT AGENCY 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 TRANSIT AGENCY;
4. 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 financial assistance for the
Project; or
5. The Federal Government terminates this AGREEMENT due to a determination that the TRANSIT
AGENCY 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,
It the TRANSIT AGENCY 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.
6. In the case of termination for convenience under subsections A.1 -4 above, WSDOT shall
reimburse the TRANSIT AGENCY for all costs payable under this AGREEMENT which the TRANSIT
AGENCY properly incurred prior to termination. The TRANSIT AGENCY shall promptly submit its
claim for reimbursement to WSDOT. If the TRANSIT AGENCY has any property in its possession
belonging to WSDOT, the TRANSIT AGENCY will account for the same, and dispose of it in the
manner WSDOT directs.
B. Termination for Default. WSDOT may suspend or terminate this AGREEMENT for default, in
whole or in part, and all or any part of the financial assistance provided herein, at any time by written
notice to the TRANSIT AGENCY, if the TRANSIT AGENCY materially breaches or fails to perform
any of the requirements of this AGREEMENT, including:
1. Takes any action pertaining to this AGREEMENT without the approval of WSDOT, which under
the procedures of this AGREEMENT would have required the approval of WSDOT;
2. Jeopardizes its ability to perform pursuant to this AGREEMENT, United States of America laws,
Washington State Laws, or local governmental laws under which the TRANSIT AGENCY operates;
3. Abuses or misuses the Project Equipment, including, but not limited to:
a. Failure to maintain a vehicle according to the manufacturer's standards;
b. Failure to repair damages or replace defective or broken parts in a timely manner;
c. Failure to take any action which could affect the ability of the Project Equipment to perform
its designated function or takes any action which could shorten its useful life for Project use
or otherwise; or.
d. Failure to make reasonable and appropriate use of the Project Equipment, real property, or
facilities.
GCB1134 Page 21 of31
4. Fails to make reasonable progress on the Project or other violation of this AGREEMENT that
endangers substantial performance of the Project; or
5. Fails to perform in the manner called for in this AGREEMENT, or fails, to comply with, or is in
•
violation of any provision of this AGREEMENT including but not limited to:
a. The TRANSIT AGENCY discontinues the use of the Project Equipment for the purpose of
vanpooling;
b. The TRANSIT AGENCY does not use the Project Equipment within the first nine (9)
months from receipt and acceptance or uses the Project Equipment for a non - authorized use at
any time.
WSDOT shall serve a notice of termination on the TRANSIT AGENCY setting forth the manner in
which the TRANSIT AGENCY is in default hereunder. If it is later determined by WSDOT that the
TRANSIT AGENCY had an excusable reason for not performing, such as events which are not the fault
of or are beyond the control of the TRANSIT AGENCY, such as a strike, fire or flood, WSDOT may:
a. Allow the TRANSIT AGENCY to 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
TRANSIT AGENCY 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 TRANSIT AGENCY 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 TRANSIT AGENCY. Any such termination for default shall not in any way operate to preclude
WSDOT from also pursuing all available remedies against TRANSIT AGENCY and its sureties for said
breach or default including, but not limited to, demanding the return of some or all of the funds paid
under this AGREEMENT.
D. In the event that WSDOT elects to waive its remedies for any breach by TRANSIT AGENCY 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 39
Safety
The TRANSIT AGENCY shall ensure, to the best of its ability, that all Project Equipment is maintained
and operated in a safe, prudent manner and that all drivers and riders comply with existing state laws
regarding the operation of motor vehicles on the streets, roads, and highways of the state. As
applicable, TRANSIT AGENCY 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. TRANSIT
AGENCY 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." TRANSIT AGENCY is encouraged to adopt and enforce
workplace safety policies to decrease crashes caused by distracted drivers including policies to ban text messaging
while driving. TRANSIT AGENCY is also encouraged to conduct workplace safety initiatives in a manner
commensurate with its size.
GCB 1134 Page 22 of 31
Section 40
' Personal Liability of Public Officers
No officer or employee of WSDOT shall be personally liable for any act or failure to act in connection
with this AGREEMENT, it being understood that in such matters they are acting solely as agents of
WSDOT.
Section 41
No Government Obligations to Third Parties
No contract between the TRANSIT AGENCY and its contractors and /or material -men and /or laborers
and /or their subcontractors shall create any obligations or liability of WSDOT with regard to this
AGREEMENT without WSDOT's specific written consent of such obligation or liability,
notwithstanding WSDOT's concurrence in, or approval of, the award of any contract or subcontract or
the solicitation thereof. The TRANSIT AGENCY 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 42
Independent Contractors
The TRANSIT AGENCY shall be deemed an independent contractor for all purposes, and the employees
of the TRANSIT AGENCY or any of its subcontractors, and the employees thereof shall not in any
manner be deemed to be an employee of WSDOT. Nothing in this AGREEMENT shall be taken as
creating or increasing any right of any third party to recovery by way of damages or otherwise against
either the TRANSIT AGENCY or WSDOT.
0 Section 43
F orbearance by WSDOT Not a Waiver
A ny 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 44
Changed Conditions Affecting Performance
The TRANSIT AGENCY hereby agrees to immediately notify WSDOT in writing of any change in
conditions or law, or of any other event, which may significantly affect its ability to perform the Project
in accordance with the provisions of this AGREEMENT.
Section 45
WSDOT Advice
The TRANSIT AGENCY bears complete responsibility for the administration and success of the Project
as it is defined by this AGREEMENT and any amendments thereto. If the TRANSIT AGENCY seeks
the advice of WSDOT on problems that may arise, the offering of WSDOT advice shall not shift the
responsibility of the TRANSIT AGENCY for the correct administration and success of the Project, and
WSDOT shall not be held liable for offering advice to the TRANSIT AGENCY.
Section 46
Severability
If any covenant or provision or part of this AGREEMENT is judged void, or held to be invalid, such
adjudication or holding shall not affect the validity or obligation of performance of any other covenant or
provision, or part thereof, which in itself is valid, if such remainder conforms to the terms and
requirements of applicable law and with the intent of this AGREEMENT. No controversy concerning
is any covenant or provision shall delay the performance of any other covenant or provision except as
herein allowed.
GCB 1134 Page 23 of 31
Section 47
Notices
Any notice, request, consent, demand, report, statement, or submission which is required or permitted to
•
be given pursuant to this AGREEMENT shall be in writing and shall be delivered personally to the
respective PARTIES set forth below or mailed by first class United States mail, postage prepaid, to the
respective PARTIES at the addresses set forth in the caption area of this AGREEMENT unless a
different address has been designated in writing and delivered to the other PARTY. The date of receipt
of any such notice, demand, request, or submission shall be presumed to be the date of delivery if served
personally, or if mailed as aforesaid, on the fifth business day following the date of such mailing.
Section 48
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 WSDOT's authorized representative. If the
PARTIES cannot resolve a dispute by agreement of the PARTIES, the TRANSIT AGENCY may submit
in writing a detailed description of the dispute to the WSDOT Public Transportation Division, Urban
Programs Manager or his/her designee, who will issue a written decision within ten (10) business days of
WSDOT's receipt of the TRANSIT AGENCY's written description of the dispute. This decision shall be
final and conclusive unless within ten (10) business days from the date of the TRANSIT AGENCY's
receipt of WSDOT's written decision , the TRANSIT AGENCY mails or otherwise furnishes a written
appeal to the WSDOT Public Transportation Division Director or his /her designee. In connection with
any such appeal, the TRANSIT AGENCY shall be afforded an opportunity to submit additional
documents in support of its position. The decision of the WSDOT Public Transportation Division
Director or designee shall be binding upon the TRANSIT AGENCY and the TRANSIT AGENCY shall
abide by the decision.
B. Performance During Dispute. Unless otherwise directed by WSDOT, TRANSIT AGENCY shall
continue performance under this Contract while matters in dispute are being resolved.
C. Claims for Damages. Should either PARTY to the 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 a reasonable time after the first observance of such injury for
damage.
D. Rights and Remedies. All remedies provided in the 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 WSDOT or
TRANSIT AGENCY shall constitute a waiver of any right or duty afforded any of them under the
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 49
Remedies Cumulative
All remedies provided in this AGREEMENT are distinct and cumulative to any other right or remedy
under this AGREEMENT or afforded by law or equity and may be exercised independently,
concurrently, or successively.
Section 50
Venue
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 such action shall be •
GCB 1134 Page 24 of 31
initiated in the Superior Court of the State of Washington situated in Thurston County and that
dp0
Washington State law shall apply.
Section 51
Section Headings
All section headings are inserted for convenience only and shall not affect any construction or
interpretation of this AGREEMENT.
Section 52
Binding Agreement
The undersigned acknowledge that they are authorized to execute this AGREEMENT and bind their
respective agencies to the obligations set forth herein.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT on the day and
year last written below.
WASHINGTON STATE TRANSIT AGENCY:
DEPARTMENT OF TRANSPORTATION CITY OF YAKIMA
By: By:
Brian Lagerberg, Director Michael A. Morales,
Public Transportation Division Interim City Manager
Date: Date:
APPROVED AS TO FORM ATTEST:
By: Susan Cruise .
Assistant Attorney General
Date: December 29, 2011 City Clerk
IIII
_ ,
GCB 11 Page 25 of 31
Exhibit I
•
Scope of Work
This Scope of Work governs the purchase of Project Equipment, under this Agreement, which will
be used by the TRANSIT AGENCY for its vanpool program. The following information and
rules pertain to both expansion and replacement vehicles purchased with WSDOT VIP grant
funds.
1. Determination of Project Completion Date and Useful Life:
1.1 The "Project Completion Date" is determined by applying the useful life of the Project
Equipment to the date of receipt and acceptance of Project Equipment. The useful life of the
Project Equipment is determined to be four (4) years from that date for this AGREEMENT.
2. Project Equipment:
TRANSIT AGENCY shall purchase, during the project period, up to:
Five (5) alternative fuel replacement vanpool vehicles
For each vanpool vehicle purchased under this AGREEMENT, the amount that WSDOT shall
reimburse the TRANSIT AGENCY shall not exceed $22,000 (80% of the maximum allowable
per vehicle unit cost of $27,500). The total amount that WSDOT shall reimburse the TRANSIT
AGENCY is subject to the TRANSIT AGENCY's compliance with the terms of this
AGREEMENT and is set forth on page 1 of this AGREEMENT under the caption heading
"Project Equipment Reimbursement ".
3. Invoices and Required Supporting Documents:
3.1 WSDOT will provide the TRANSIT AGENCY, following execution of this AGREEMENT,
with a Reimbursement Request Form, a copy of which is attached hereto as Exhibit TV to this
Agreement, and by this reference incorporated into the Agreement. The TRANSIT AGENCY
is required to use this form when requesting reimbursement for Project Equipment purchased
under this agreement. . A completed Reimbursement Request Form must contain an original
signature from the TRANSIT AGENCY's authorized signatory or his/her designee, and it must
be submitted within thirty (30) days of Project Equipment acceptance. Reimbursement Request
Forms shall identify and include any and all manufacturer discounts and rebates received for
each unit purchased. A completed form shall include, but not be limited to, the following
information:
3.1.1 Year and Make and Model
3.1.2 Vehicle Identification Number (VIN)
3.1.3 Grantee Vehicle Number and Vehicle License Number
3.1.4 Seating Capacity and ADA Accessibility
3.1.5 Date Vehicle is Accepted
3.1.6 Vehicle Per Unit Cost
3.1.7 Equipment Description (if applicable)
3.1.8 Equipment Cost
3.2 Reimbursement Request Forms shall be supported with a copy of the vendor invoice(s)
documenting the Project Equipment and associated Project Equipment expenditures. Eligible
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• expenditures include, but are not limited to, cost of the vehicle, vehicle signage /logos, vehicle
bicycle racks, emergency roadside safety equipment, telematics equipment, and first aid kits.
3.3 Additional supporting documentation required to be submitted by the TRANSIT AGENCY with
a Reimbursement Request Form (s) includes the following:
3.3.1 Copy of vehicle registration listing WSDOT as Legal Owner and TRANSIT AGENCY
as Registered Owner.
3.3.2 Copy of insurance certificate showing WSDOT as additional insured and the loss payee.
3.3.3 A TRANSIT AGENCY that self - insures must provide WSDOT with a declaration of
self - insurance, including a description of how the self - insurance pool is funded.
Insurance must meet the requirements as outlined in Section 32 — Insurance.
3.3.4 Copy of the Project Equipment acceptance letter to the vendor certifying that the Project
Equipment has been inspected and is in good condition and repair as outlined in Section
4 — Inspection of Project Equipment upon Delivery.
3.3.5 Copies of invoices /receipts for associated Project Equipment (e.g. logos /signage, bicycle
racks, telematics equipment, safety and first aid -kits, etc.) expenditures.
4. WSDOT Reimbursement & Local Cash Match Requirements:
A) Expansion Project Equipment
4.1 (A) Each gas - powered expansion vehicle is funded 80% by WSDOT and require local cash
match of 20 %.
4.2 (A) Each alternative fuel expansion vehicle purchased is funded 90% by WSDOT and
requires a local cash match of 10 %.
B) Replacement Project Equipment
4.1 (B) Each gas - powered replacement vehicle purchased is funded 60% by WSDOT and
requires a local cash match of 40 %.
4.2 (B) Each alternative fuel replacement vehicle purchased is funded 70% by WSDOT and
requires a local cash match of 30 %.
C) In the event the total individual cost of Project Equipment exceeds $27, 500, the TRANSIT
AGENCY's local cash match amount will be greater than the percentage amounts identified above.
5. Project Equipment In- Service Requirements:
A) Expansion Vehicles
5.1 (A) TRANSIT AGENCY is required to place expansion vehicles received into service
within nine (9) months of vehicle acceptance date. Failure by the TRANSIT AGENCY
to meet this requirement will result in WSDOT (at its discretion) to:
* transfer any vehicles not placed in service to an alternative TRANSIT
AGENCY in need of a vehicle for its vanpool program (TRANSIT AGENCY
shall forfeit its local cash match for any vehicles transferred to another
TRANSIT AGENCY); or
* allow the vehicle to remain with the TRANSIT AGENCY to replace one of its
• existing in service vanpool vehicles and have the TRANSIT AGENCY
reimburse WSDOT (within 45 days from WSDOT notification) 25% of
WSDOT's original VIP grant fund reimbursement for the vehicle.
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5.2 (B) TRANSIT AGENCY shall notify and report to WSDOT (via the WSDOT VIP Funded
Vanpool Van Quarterly Fleet Update Report) by the end of the month for the previous
•
quarter, when a replacement vehicle purchased by WSDOT is placed into service.
6. Retired TRANSIT AGENCY Vanpool Vehicle Disposal Timeframe
6.1 (A) TRANSIT AGENCY is required to dispose (sell, donate, or surplus) a retired TRANSIT
AGENCY vanpool vehicle within three (3) months from the time a replacement
WSDOT funded vanpool vehicle is accepted to replace the TRANSIT AGENCY retired
vanpool vehicle.
6.2 (B) TRANSIT AGENCY shall notify and report to WSDOT (via the WSDOT VIP Funded
Vanpool Van Quarterly Fleet Update Report) by the end of the month for the previous
quarter, when a retired TRANSIT AGENCY vanpool vehicle that has been replaced by a
WSDOT VIP funded vehicle is disposed (sold, donated or surplused).
7. Vans purchased for JBLM through the 2011 -2013 VIP
Transit agencies that received 2011 -2013 VIP funds to purchase vans to serve military or civilian
personnel at JBLM will be required to the following (as long as WSDOT holds title to the van):
• Use these vans only to implement new vanpools at JBLM;
• Assign a JBLM terminated vanpool van only to a new vanpool group at JBLM;
• Not use a JBLM terminated vanpool van to replace an existing JBLM vanpool van; and,
• Separately report each month to KCM, in the same format as the RVCT/WSRO Vanpool
Report, JBLM monthly vanpool operational statistical information.
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