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HomeMy WebLinkAboutKobussen Buses, Ltd AGREEMENT THIS AGREEMENT, made on the 3rd day of May, 2012, by and between the CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, and Kobussen Buses, Ltd., W914 County Road CE, Kaukauna, WI 54130, hereinafter referred to as the CONTRACTOR, WITNESSETH: That the City and the Contractor, for the consideration hereinafter named, agree as follows: ARTICLE I. KEY EMPLOYEE A. Assignment of Key Employee. The Contractor shall assign the following individual to manage the service described in this contract: Joe Kobussen, President B. Changes in Key Employee. The City shall have the right to approve or disapprove of any proposed change from the individual named above as Key Employee. The City shall be provided with a resume or other information for any proposed substitute and shall be given the opportunity to interview that person prior to any proposed change. ARTICLE II. CITY REPRESENTATIVE The City shall assign the following individual to manage the service described in this contract: Jan Knapp, Operations Supervisor ARTICLE III. SCOPE OF WORK The Contractor shall provide intercity bus transportation services between the City of Oshkosh and the City of Neenah. The scope of services is described in more detail in the Request for Proposals (RFP) document, and in the Contractor's proposal. Where these documents may conflict, this agreement and the RFP shall control. The Contractor may provide additional products and/or services if such products/services are requested in writing by the Authorized Representative of the City. All reports, computer files, service data, notes and other documents and instruments prepared by the Contractor as instruments of service shall remain the property of the City, 1 ARTICLE IV. CITY RESPONSIBLITIES The City shall furnish, at the Contractor's request, such information as is needed by the Contractor to aid in the progress of the service, providing it is reasonably obtainable from City records. ARTICLE V. CONTRACT TERM The term of this agreement shall be for four years and eight months beginning on the 7th day of May 2012, and extending to the last day of December 2016. ARTICLE VI. DEFINITIONS For purposes of this agreement, revenue service (revenue hours and revenue miles) shall be defined as the time when a vehicle is available to the general public and there is an expectation of carrying passengers. Revenue service does not include dead miles, dead hours, or revenue service missed due to operator absence, vehicle failure, contractor dispatch error, accident or other preventable reason. ARTICLE VII. PAYMENT A. The Contract Sum. The City shall pay to the Contractor a sum of seventeen and 47/100 dollars ($17.47) per revenue hour and 93/100 dollars ($.93) per revenue mile during the period of May 7, 2012 through May 4, 2013. B. Contract Sum Adjustments. Contract prices will be generally adjusted at the beginning of each contract year, and then may be adjusted further on a monthly basis thereafter based upon fluctuations in fuel prices. Prices for both the per revenue mile and per revenue hour rates in subsequent contract years will be adjusted effective May 5, 2013 and on the 5th day of May in each subsequent year based on a National Consumer Price Index for all urban areas. The source of this data shall be the U.S. Bureau of Labor Statistics. The adjustment will be determined by multiplying the previous contract year's rates, prior to any adjustment for fuel (as described in the following paragraph), times the National Consumer Price Index (all urban communities) percent change for the preceding twelve (12) months. The initial increase of base prices per contract year shall not exceed four percent (4%) or fall below one percent (1%). However, such annual increases may be increased further or offset in future months based upon fuel prices as described below. After the CPI adjustment above is applied at the beginning of the contract year, the per revenue mile rate will receive a second adjustment on a monthly basis thereafter, either up or down, effective May 5, 2013. The adjustment shall be based on average price data for automotive diesel in Midwest urban areas(U.S. Bureau of Labor Statistics). The established price of diesel fuel is three and 75/100 dollars 2 ($3.75) per gallon. For every price change of 8/100 dollars ($0.08) per gallon from the established price, the per revenue mile rate shall increase or decrease by 1/100 dollar ($0.01) per mile. The previous month's average price data from the U.S. Bureau of Labor Statistics will be applied to the current month's invoice and payments required to be made according to this contract will be based upon the new monthly calculation. C. Method of Payment. The Contractor shall submit itemized monthly statements for services. The City shall pay the Contractor within 15 business days after receipt of such statement. If any statement amount is disputed, the City may withhold payment of the disputed amount and shall provide to Contractor a statement as to the reason(s) for withholding payment. Unless the invoice is disputed, the invoice will be deemed past due if payment in full is not made within 15 business days from due date. In this case, the invoice may bear interest at 1.5%of the past due amount per month. D. Additional Costs. Costs for additional services shall be negotiated and set forth in a written amendment to this agreement executed by both parties prior to proceeding with the work covered under the subject amendment. ARTICLE VIII. CONTRACTOR TO HOLD CITY HARMLESS The Contractor covenants and agrees to protect and hold the City of Oshkosh harmless against all actions, claims and demands of any kind or character whatsoever which may in any way be caused by or result from the intentional or negligent acts of the Contractor, his agents or assigns, his employees or his subcontractors related however remotely to the performance of this Contract or be caused or result from any violation of any law or administrative regulation, and shall indemnify or refund to the City all sums including court costs, attorney fees and punitive damages which the City may be obliged or adjudged to pay on any such claims or demands within thirty (30) days of the date of the City's written demand for indemnification or refund. ARTICLE IX. INSURANCE The Contractor shall comply with the City's Insurance Requirements as stated on attached Exhibit "A". ARTICLE X. TERMINATION A. For Cause. If the Contractor shall fail to fulfill in timely and proper manner any of the obligations under this Agreement, the City shall have the right to terminate this Agreement by written notice to the Contractor. In this event, the Contractor shall be entitled to compensation for any satisfactory work completed. B. For Convenience. The City may terminate this contract at any time by giving written notice to the Contractor no later than 30 calendar days before the termination date. 3 If the City terminates under this paragraph, then the Contractor shall be entitled to compensation for any satisfactory work performed to the date of termination. ARTICLE XI. FEDERAL AND STATE REGULATIONS This agreement shall at all times be subject to the rules and regulations of Wisconsin Department of Transportation and the Federal Transit Administration, under the provisions of the Urban Mass Transportation Act of 1964, as amended. See Exhibit "B". ARTICLE XII. MISCELLANEOUS The Contractor agrees to report a conviction of a crime by a driver immediately to the City for appropriate follow-up. This document and any specified attachments contain all terms and conditions of the Agreement and any alteration thereto shall be invalid unless made in writing, signed by both parties and incorporated as an amendment to this Agreement. 4 In the Presence of: CONTRACTOR add, J.iscitie, I ye-5(Seal of of Contractor (Specify Title) if a Corporation.) By: (Specify Title) / CITY OF OSHKOSH By: ,/ Al oaf - -kV Rohloff, Cit - ile ii tA , And ) 0 --)if„ 17\ : lit ,_ w v es, Pamela R. Ubrig, City Clerk APPROVED: I hereby certify that the necessary provisions have been made to pay the liability which will _fiat , accrue under this contract. I ity Attorney- 4 eg413 City Comptroller 5 12/21/11 CITY OF OSHKOSH INSURANCE REQUIREMENTS IV. PROFESSIONAL SERVICES LIABILITY INSURANCE REQUIREMENTS The Contractor shall not commence work on contract until proof of insurance required has been provided to the applicable City department before the contract or purchase order is considered for approval by the City. It is hereby agreed and understood that the insurance required by the City of Oshkosh is primary coverage and that any insurance or self insurance maintained by the City of Oshkosh, its officers, council members, agents, employees or authorized volunteers will not contribute to a loss. All insurance shall be in full force prior to commencing work and remain in force until the entire job is completed and the length of time that is specified, if any, in the contract or listed below whichever is longer. 1, PROFESSIONAL LIABILITY A. Limits (1) $1,000,000 each claim (2) $1,000,000 annual aggregate B. Must continue coverage for 2 years after final acceptance for service/job 2. GENERAL LIABILITY COVERAGE A. Commercial General Liability (1) $1,000,000 each occurrence limit (2) $1,000,000 personal liability and advertising injury (3) $2,000,000 general aggregate (4) $2,000,000 products— completed operations aggregate B. Claims made form of coverage is not acceptable. C. Insurance must include: (1) Premises and Operations Liability (2) Contractual Liability (3) Personal Injury (4) Explosion, collapse and underground coverage (5) Products/Completed Operations must be carried for 2 years after acceptance of completed work (6) The general aggregate must apply separately to this project/location 3. BUSINESS AUTOMOBILE COVERAGE A. $1,000,000 combined single limit for Bodily Injury and Property Damage each accident B. Must cover liability for Symbol #1 - "Any Auto" —including Owned, Non-Owned and Hired Automobile Liability. IV - 1 12/21/11 4. WORKERS COMPENSATION AND EMPLOYERS LIABILITY— "If" required by Wisconsin State Statute or any Workers Compensation Statutes of a different state. A. Must carry coverage for Statutory Workers Compensation and an Employers Liability limit of: (1) $100,000 Each Accident (2) $500,000 Disease Policy Limit (3) $100,000 Disease— Each Employee 5. UMBRELLA LIABILITY - If exposure exists, provide coverage at least as broad as the underlying Commercial General Liability, Watercraft Liability (if required), Automobile Liability and Employers Liability, with a minimum limit of$2,000,000 each occurrence and $2,000,000 aggregate, and a maximum self-insured retention of$10,000. 6. ADDITIONAL PROVISIONS A. Acceptability of Insurers - Insurance is to be placed with insurers who have an A.M. Best rating of no less than A- and a Financial Size Category of no less than Class VI, and who are authorized as an admitted insurance company in the state of Wisconsin. B. Additional Insured Requirements — The following must be named as additional insureds on the General Liability and Business Automobile Liability coverage arising out of project work...City of Oshkosh, and its officers, council members, agents, employees and authorized volunteers. On the Commercial General Liability Policy, the additional insured coverage must include Products — Completed Operations equivalent to ISO form CG 20 37 for a minimum of 2 years after acceptance of the work. This does not apply to Professional Liability, Workers Compensation and Employers Liability. C. Certificates of Insurance acceptable to the City of Oshkosh shall be submitted prior to commencement of the work to the applicable City department. These certificates shall contain a provision that coverage afforded under the policies will not be canceled or non renewed until at least 30 days' prior written notice has been given to the City Clerk —City of Oshkosh. IV - 2 `°``°"f) CERTIFICATE OF LIABILITY INSURANCE DATE IMrnIDD,wrrj THIS CERTIFICATE IS ISSUED AS A MATTER OF-INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the pollcy(les) must be endorsed. If SUBROGATION IS WAIVED,-subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). ---- PRODUCER CONTACT Insurance Agency contact NAME: information,including street PHONE Insurance Agent's F AX address and PO Box if _contact information. ',.(AIC,No): (AJC.No.Ext): applicable. E-MAIL ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC# INSURER A: ABC Insurance Company NAIC# INSURED Insured's contact information, NAIC# including name,address and INSURER B: XYZ Insurance Company phone number. INSURER c: LMN Insurance Company NAIC# INSURER D' 1 I Insurers)must have a minimum A.M.Best rating of A- -- and a Financial Performance Rating of VI or better. INSURER E: INSURER F:COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE AMY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER - (MMIDDIYYY) (MM/DDIYYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $1,000,000 (� r Policy effective and expiration date. DAMAGE TO RENTED v 3,r COMMERCIAL GENERAL LIABILITY " ! (General Liability Policy Number Y p' PREMISES(Ea occurrence) $50,000 A El,CLAIMS-MADE t I'•OCCUR $5'000 MED EXP(Any one person) ® ISO FORM CG 20 37 OR EQUIVALENT PERSONAL&ADV INJURY $1,000,000 ElGENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS-COMPiOP AGO $2,000.000 [1:1 POLICY ®,PE�.0.'LOC $ _I AUTOMOBILE LIABILITY - COMBINED SINGLE LIMIT I(Ea accident) $ 1,000,000 ®ANY AUTO ® ❑ -; Auto Liability Policy Number Policy effective and expiration date.) BODILY INJURY(Par person) $ p II ALL OWNED ' SCHEDULED Q AUTOS ti It AUTOS BODILY INJURY(Per accident) $ CIHIRED AUTOS 111 NON-OWNED PROPERTY DAMAGE AUTOS (Per accicerl) $ ®UMBRELLA LIAB ®OCCUR ❑ EACH OCCURRENCE $2,000,000 A EXCESS LIAB � CLAIMS-MADE I Umbrella Liability Policy Number I Policy effective and expiration date.I AGGREGATE $2.000,000 ❑,DED Z.RETENTION$$10,000 $ T C WORKERS COMPENSATION — r....1 1 WC STATU- OTH- AND EMPLOYERS'LIABILITY I I „ I TORY LIMITS , ER ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICEiMEMBER EXCLUDED? Y/N I EL.EACH ACCIDENT $ 100,000 Workers Compensation Policy Policy effective and expiration date. (Mandatory in NH) N _ Number DISEASE--EA EMPLOYEE $ 100,000 If yes,describe under E.L. -DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $500,000 A 'PROFESSIONAL LIABILITY I ❑ $1,000,000 EACH CLAIM Professional Liability Policy Policy effective and expiration dale.I $1,000,000 ANNUAL AGGREGATE Number DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space is required) Additional Insureds on the Commercial General Liability and Automobile Liability arising out of project work shall be City of Oshkosh,and it's officers,council members,agents,employees and authorized volunteers. Certificates of Insurance acceptable to the City of Oshkosh shall be submitted prior to commencement of the work to the applicable City department. These certificates shall contain a provision that coverage afforded under the policies will not be canceled or non renewed until at least 30 days'prior written notice has been given to the City Clerk—City of Oshkosh. CERTIFICATE HOLDER CANCELLATION City of Oshkosh,Attn:City Clerk Insurance Standard IV SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 215 Church Avenue SAMPLE CERTIFICATE THE EXPIRATION DATE,THEREOF,NOTICE WILL BE DELIVERED IN PO Box 1130 ACCORDANCE WITH THE POLICY PROVISIONS. Oshkosh,WI 54903-1130 Please indicate somewhere on this certificate,the contract or project# , AUTHORIZED REPRESENTATIVE this certificate is for. ©1988-2010 ACORD CORPORATION. All rights reserved. Acord 25(2010105) The ACORD name and logo are registered marks of ACORD City of Oshkosh Request for Proposals 2012-16 intercity Bus Services No Obligation by the Federal Government (1)The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by the Federal Transit Administration (FTA). It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. Program fraud and false or fraudulent statements and related acts 31 U.S.C. 3801 et seq. 49 CFR Part 31 18 U.S.C. 1001 49 U.S.C. 5307 (1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq . and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. (2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. (3) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal w;sistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 26 City of Oshkosh Request for Proposals 2012-16 Intercity Bus Services Access to Records 49 U.S.C. 5325 18 CFR 18.36 (I) 49 CFR 633.17 1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. 2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the Purchaser, the FTA Administrator or his authorized representatives, including any PMO Contractor, access to the Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less than the simplified acquisition threshold currently set at $100,000. 3. Where the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospital or other non-profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the Comptroller General of the United States or any of their duly authorized representatives with access to any books, documents, papers and record of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. 4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C. 5302(a)1)through other than competitive bidding, the Contractor shall make available records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection. 5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. 6. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). 7. FTA does not require the inclusion of these requirements in subcontracts. 27 City of Oshkosh Request for Proposals 2012-16 Intercity Bus Services Federal Changes 49 CFR Part 18 Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement (see http://www.fta.dot.gov/funding/apply/grants financing 3162.html) between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. Civil Rights 29 U.S.C. § 623, 42 U.S.C. § 2000 42 U.S.G. § 6102, 42 U.S.C. § 12112 42 U.S.C. § 12132, 49 U.S.C. § 5332 29 CFR Part 1630, 41 CFR Parts 60 et seq. The following requirements apply to the underlying contract: (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity -The following equal employment opportunity requirements apply to the underlying contract: (a) Race, Color, Creed, National Origin, Sex- In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor(U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq ., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. 28 City of Oshkosh Request for Proposals 2012-16 Intercity Bus Services (c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. Disadvantaged Business Enterprises 49 CFR Part 26 a. This contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26, Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs. The national goal for participation of Disadvantaged Business Enterprises (DBE) is 10%. The agency's overall goal for DBE participation is 1.1 °/a. b. The contractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of this DOT-assisted contract. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the OTS deems appropriate. Each subcontract the contractor signs with a subcontractor must include the assurance in this paragraph (see 49 CFR 26.13(b)). The successful bidder will be required to report its DBE participation obtained through race- neutral means throughout the period of performance. d. The contractor is required to pay its subcontractors performing work related to this contract for satisfactory performance of that work no later than 30 days after the contractor's receipt of payment for that work from the OTS. In addition, [the contractor may not hold retainage from its subcontractors.] [is required to return any retainage payments to those subcontractors within 30 days after the subcontractor's work related to this contract is satisfactorily completed.] [is required to return any retainage payments to those subcontractors within 30 days after incremental acceptance of the subcontractor's work by OTS and contractor's receipt of the partial retainage payment related to the subcontractor's work.] e. The contractor must promptly notify the OTS, whenever a DBE subcontractor performing work related to this contract is terminated or fails to complete its work, and must make good faith efforts to engage another DBE subcontractor to perform at least the same amount of work. The contractor may not terminate any DBE subcontractor and perform that work through its own forces or those of an affiliate without prior written consent of the OTS. Incorporation of FTA Terms FTA Circular 4220.1 F Incorporation of Federal Transit Administration (FTA) Terms -The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set 29 City of Oshkosh Request for Proposals 2012-16 lntercit■ Bus Services forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1E are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any OTS requests which would cause OTS to be in violation of the FTA terms and conditions. Termination Provisions 49 U.S.C. Part 18 FTA Circular 4220.1F (1) Termination for Convenience - The performance of work under the Contract may be terminated by OTS in accordance with this Section in whole, or from time to time in part, whenever OTS determines that such termination is in its best interest. Any such termination shall be effected by delivery to the Contractor of a notice of termination specifying the extent to which performance of work under the Contract is terminated and the date upon which such termination becomes effective. (2) Termination for Default - If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the OTS may terminate this contract for default. The OTS shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. The Contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner or performance set forth in this contract. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of OTS. (3) Termination by Mutual Agreement -The Contract may be terminated by mutual agreement of the parties. Such termination shall be effective in accordance with a written agreement by the parties. Any other act of termination shall be in accordance with the termination by convenience or default provisions contained in these sections. Suspension and Debarment This contract is a covered transaction for purposes of 49 CFR Part 29. As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. The contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows: The certification in this clause is a material representation of fact relied upon by the OTS. If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to the OTS, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR 29. Subpart C while this offer is valid and 30 City of Oshkosh Request for Proposals 2012-16 Intercity Bus Services throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. Resolution of Disputes, Breaches, or Other Litigation 49 CFR Part 18 FTA Circular 4220.1E Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of OTS's Transportation Director. This decision shall be final and conclusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the Transportation Director. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute - Unless otherwise directed by OTS, Contractor shall continue performance under this Contract while matters in dispute are being resolved. Claims for Damages- Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefore shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the OTS and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the OTS is located. Rights and Remedies -The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the OTS or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. Clean Air 42 U.S.C. 7401 et seq 40 CFR 15.61 49 CFR Part 18 (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 31 City of Oshkosh Request for Proposals 2012-16 Intercity Bus Services Clean Water 33 U.S.C. 1251 (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. Contract Work Hours & Safety Standards Act 1) 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 hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the clause set forth in paragraph (1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. (3)Withholding for unpaid wages and liquidated damages - The (write in the name of the grantee) shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section. (4) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1)through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section. Transit Employee Protective Arrangements 49 U.S.C. § 5310, § 5311, and § 5333 29 CFR Part 215 32 City of Oshkosh Request for Proposals 2012-16 Intercity Bus Services (1) The Contractor agrees to comply with applicable transit employee protective requirements as follows: (a) General Transit Employee Protective Requirements -To the extent that FTA determines that transit operations are involved, the Contractor agrees to carry out the transit operations work on the underlying contract in compliance with terms and conditions determined by the U.S. Secretary of Labor to be fair and equitable to protect the interests of employees employed under this contract and to meet the employee protective requirements of 49 U.S.C. A 5333(b), and U.S. DOL guidelines at 29 C.F.R. Part 215, and any amendments thereto. These terms and conditions are identified in the letter of certification from the U.S. DOL to FTA applicable to the FTA Recipient's project from which Federal assistance is provided to support work on the underlying contract. The Contractor agrees to carry out that work in compliance with the conditions stated in that U.S. DOL letter. Charter Service Operations The contractor agrees to comply with 49 U.S.C. 5323(d) and 49 CFR Part 604, which provides that recipients and subrecipients of FTA assistance are prohibited from providing charter service using federally funded equipment or facilities if there is at least one private charter operator willing and able to provide the service, except under one of the exceptions at 49 CFR 604.9. Any charter service provided under one of the exceptions must be "incidental," i.e., it must not interfere with or detract from the provision of mass transportation. School Bus Operations Pursuant to 69 U.S.C. 5323(f) and 49 CFR Part 605, recipients and subrecipients of FTA assistance may not engage in school bus operations exclusively for the transportation of students and school personnel in competition with private school bus operators unless qualified under specified exemptions. When operating exclusive school bus service under an allowable exemption, recipients and subrecipients may not use federally funded equipment, vehicles, or facilities. Drug and Alcohol Testing The contractor agrees to participate in OTS's drug and alcohol program established in compliance with 49 CFR 655. Energy Conservation 42 U.S.C. 6321 et seq. 49 CFR Part 18 The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. Recycled Products Recovered Materials -The contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247, 33 City of Oshkosh Request for Proposals --- - ---- ------ ---- 2012-16 Intercity Bus Services ADA Access The Contractor agrees to comply with 49 U.S.C. § 5301(d), which states the Federal policy that elderly individuals and individuals with disabilities have the same right as other individuals to use public transportation services and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement transportation accessibility rights for elderly individuals and individuals with disabilities. The Contractor also agrees to comply with all applicable provisions of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of disability in the administration of programs or activities receiving Federal financial assistance; with the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq., which requires that accessible facilities and services be made available to individuals with disabilities; with the Architectural Barriers Act of 1968, as amended, 42 U.S.C. §§ 4151 et seq., which requires that buildings and public accommodations be accessible to individuals with disabilities; and with other laws and amendments thereto pertaining to access for individuals with disabilities that may be applicable. In addition, the Recipient agrees to comply with applicable implementing Federal regulations, and any later amendments thereto, and agrees to follow applicable Federal implementing directives, except to the extent FTA approves otherwise in writing. Among those regulations and directives are: (1) U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R. Part 37; (2) U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance," 49 C.F.R. Part 27; (3) Joint U.S. Architectural and Transportation Barriers Compliance Board (U.S. ATBCB)/U.S. DOT regulations, "Americans with Disabilities (ADA)Accessibility Specifications for Transportation Vehicles," 36 C.F.R. Part 1192 and 49 C.F.R. Part 38; (4) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 C.F.R. Part 35; (5) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C.F.R. Part 36; (6) U.S. General Services Administration (U.S. GSA) regulations, "Accommodations for the Physically Handicapped," 41 C.F.R. Subpart 101-19; (7) U.S. EEOC, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630; (8) U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled," 47 C.F.R. Part 64, Subpart F; (9) U.S. ATBCB regulations, "Electronic and Information Technology Accessibility Standards," 36 C.F.R. Part 1194; (10) FTA regulations, `Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609; and (11) Federal civil rights and nondiscrimination directives implementing the foregoing Federal laws and regulations, except to the extent the Federal Government determines otherwise in writing. 34