HomeMy WebLinkAbout2014-002 MV Transportation Transit Agmt FY 2014 - 2017
TRANSIT SERVICES AGREEMENT
The following is a Transit Services Agreement("Agreement")dated as of February 12, 2014, by
and between the City of Atascadero, ("CITY")and MV Transportation, Inc.,("CONTRACTOR.") For
the purposes of this Agreement, CITY and CONTRACTOR shall be jointly referred to as"Parties,"
and singularly as "Party."
WHEREAS, CONTRACTOR represents that it has the management and technical personnel,
qualifications,expertise, and other assets necessaryfor the support of CITY's transportation project;
WHEREAS, CITY wishes to contract for transit drivers and driver management;
WHEREAS, CITY is desirous of providing such services as CITY Transit; and
NOW, THEREFORE, in consideration of the foregoing recital and mutual covenants and
agreements contained herein, CITY and CONTRACTOR hereto agree as follows:
1. Purpose: CITY hereby contracts with CONTRACTOR to provide transportation man-
agement and operations upon the terms and of this Agreement.
2. Scope of Work: CONTRACTOR shall provide services as set forth in Scope of Work,
Proposal and Support Documentation attached hereto and incorporated herein by reference. In
event of a conflict between this Agreement and the terms of Proposal and Support Documentation,
this Agreement shall control.
3. Term: The term of this Agreement shall be from July 1, 2014 to June 30, 2017, inclusive.
This Agreement may be extended for two (2) additional one-year terms at CITY's sole discretion.
4. Maximum Obligation: For the period July 1, 2014 to June 30, 2017, CITY agrees to pay
CONTRACTOR in consideration for its services as described herein. The maximum cost to be paid
by CITY for each fiscal year shall not exceed:
$130,747 July 1, 2014 to June 30, 2015;
$132,288 July 1, 2015 to June 30, 2016; and
$135,727 July 1, 2016 to June 30, 2017
Pricing for each of the two option years will be based upon application of the Consumer
Price Index—All Urban Consumers for the San Luis Obispo County area as of April 1 of that year to
the rate in place for the immediately preceding the Option year.
5. Price Formula: CITY agrees to pay CONTRACTOR for performance of the services set
forth in this Agreement as follows:
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(a) Payment of a fixed hourly rate per vehicle service hour of:
$27.85 July 1, 2014 to June 30, 2015;
$28.18 July 1, 2015 to June 30, 2016; and
$28.91 July 1, 2016 to June 30, 2017
A Revenue Hour is defined as the time that a vehicle enters revenue service (not to include
deadhead time). A Revenue Mile is measured from the moment a vehicle enters revenue service
until the time the vehicle leaves revenue service.
The hourly rate shall compensate CONTRACTOR for all costs necessary to operate transit
services defined in this Agreement.
(d) CITY shall provide vehicles and licenses;fuel;vehicle maintenance;facility insurance;
radios; radio maintenance and radio licenses; passes and tickets; marketing and promotion;
planning; monitoring.
6. Payment: All payments by CITY shall be made in arrears after the service has been
provided. Payment shall be made by CITY no more than thirty(30)days from CITY's receipt of the
invoice unless the monthly reporting has not been submitted. Payment may be withheld by CITY if
monthly reports have not been submitted or other problems exist. Payment will be made on a
monthly basis. If CITY disputes any items on an invoice for a reasonable cause, CITY may deduct
that disputed item from the payment but shall not delay payment for the undisputed portions. The
amounts and reasons for such deletions shall be documented to CONTRACTOR within fifteen(15)
working days after receipt of invoice by CITY.
Payment of outstanding invoices from CONTRACTOR may be withheld by CITY, without
interest accruing to CONTRACTOR, if the monthly report is not submitted by CONTRACTOR in a
timely manner and if non-performance has resulted in CITY demand against CONTRACTOR's
Performance Bond.
No advance payments will be permitted.
7. Operating Revenues: All operating revenues collected by CONTRACTOR are the property
of CITY. Operating revenues include all fares; sales of tickets, and passes; and advertising sales.
Fares shall be collected in accordance with the fare schedule established at the sole discretion of
CITY. Sales of tickets, passes, and advertising shall be as specifically authorized by CITY.
8. Management and Overall Staffing: During the term of this Agreement,CONTRACTOR shall
provide sufficient staffing necessary and required to perform its duties and obligations under the
terms hereof. Staffing levels shall, at a minimum, not fall below the position levels defined in
CONTRACTOR Proposal. These minimum staffing levels shall be maintained at all times with the
exception of normal employee vacations and other excused absences. Reasonable time caused by
normal employee turnover shall be allowed, including in the case of discharge or lack of notice by
employee. Any position vacant more than ten (10)working days shall be deducted from the fixed
fee based on the average salary and benefit rates for that particular position unless filled by a
temporary employee. However, in the event a position remains unfilled after thirty (30) calendar
days for any reason, CONTRACTOR shall ensure timely replacement and provide reasonable
assurances to CITY of its efforts to fill the position.
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The Operations Manager assigned to this Project must remain in that position for a period of at least
one(1)year unless the CITY asks the Contractor to remove the Manager. If for reasons other than
a personal termination (voluntary resignation)or emergency,the Operations Manager leaves prior to
this date, the CITY in its sole discretion may immediately assess a penalty equal to one and a half
(1'/2) times the Manager's annual salary, collected through a reduction in payment owed the
Contractor in the next invoice cycle, or as otherwise agreed upon,at the CITY's sole discretion. It is
understood that the Operations Manager is not fully dedicated to these services.
If for any reason the Operations Manager position is left open or not permanently filled, with a
qualified full time Manager approved by the CITY,for more than ninety(90)days,a penalty equal to
the Manager's monthly salary may be immediately assessed by the CITY, and collected through a
reduction in payment owed the Contractor in the next invoice cycle,or as otherwise agreed to at the
CITY's discretion. Such fee may continue to be collected for each subsequent month in which no
permanent Manager is designated.
9. Medical Assistance to Passengers: CONTRACTOR's employees shall not be required to
perform any medical or quasi-medical functions for passengers. In the event of illness on board a
vehicle, the driver shall advise the dispatcher by radio and may proceed immediately to a medical
facility for help if so directed by dispatcher.
10. Uniforms: CONTRACTOR shall purchase uniforms for employees and shall require the
employees to wear them. The design, type, and logo of the uniforms shall be subject to CITY's
approval. Uniforms shall include but not be limited to shirts, pants,jackets, and caps (optional).
11. Merger and Modifications of Agreement: This writing constitutes the entire Agreement
between the Parties relative to the subject matter of this Agreement and no modification hereof shall
be effective unless and until such modification is evidenced by a writing signed by both Parties to
this Agreement. There are no understandings,agreements,or conditions with respect to the subject
matter of this Agreement except those contained in this writing.
12. Assignment and Subcontracting: None of the Parties hereto shall assign, sublet,
subcontract or transfer any interest in this Agreement without written consent of the other, and no
assignment shall be of any force or effect whatsoever unless and until the other Party has
consented in writing. Written consent shall not be unreasonably withheld.
13. Breaches and Disputes:
(a) Disputes-Disputes arising in the performance of this Agreement that are not resolved
by agreement of the Parties shall be decided in writing by the CITY Transit Manager. This decision
shall be final and conclusive unless within ten (10) days from the date of receipt of its copy,
CONTRACTOR mails or otherwise furnishes a written appeal to the CITY. In connection with any
such appeal, CONTRACTOR shall be afforded an opportunity to be heard and to offer evidence in
support of its position. The decision of the CITY shall be binding upon CONTRACTOR and
CONTRACTOR shall abide by the decision.
(b) Performance During Dispute - Unless otherwise directed by CITY, CONTRACTOR
shall continue performance under this Agreement while matters in dispute are being resolved.
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(c) Claims for Damages-Should either Party to the Agreement suffer injury or damage to
person or property because of any act or omission of the Party or of any of his or her 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.
(d) Remedies - Unless this Agreement provides otherwise, all claims, counterclaims,
disputes and other matters in question between CITY and 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 of California.
(e) Rights and Remedies - The duties and obligations imposed by the Agreement
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 CITY 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.
14. Termination:
(a) Termination without Cause: CITY may terminate this Agreement, without cause, in
whole or in part, at any time by written notice of at least sixty (60) days to CONTRACTOR.
CONTRACTOR shall be paid its costs, including Agreement closeout costs, and profit on work
performed up to the time of termination. CONTRACTOR shall promptly submit its termination claim
to CITY to be paid. If CONTRACTOR has any property in its possession belonging to CITY,
CONTRACTOR will return, account for the same, and/or dispose of it in the manner CITY directs.
(b) Termination for Default: If CONTRACTOR does not deliver services,CONTRACTOR
fails to perform in the manner called for in the Agreement,or if CONTRACTOR fails to comply with
any other provisions of the Agreement, the CITY may terminate this Agreement for default.
Termination shall be effected by serving a notice of termination on CONTRACTOR setting forth the
manner in which CONTRACTOR is in default. CONTRACTOR will only be paid the Agreement
price for services performed in accordance with the manner of performance set forth in the
Agreement. If it is later determined by CITY that CONTRACTOR had an excusable reason for not
performing, such as a strike, fire, or flood [or other weather emergency], events which are not the
fault of or beyond the control of CONTRACTOR, CITY, after setting up a new delivery of
performance schedule, may allow CONTRACTOR to continue work, or treat the termination as a
termination without cause.
(c) Termination for Cost-Type Contracts: CITY may terminate this Agreement, or any
portion of it, by serving a notice of termination on CONTRACTOR. The notice shall state whether
the termination is for convenience of CITY or is for the default of CONTRACTOR. If the termination
is for default, the notice shall state the manner in which CONTRACTOR has failed to perform the
requirements of the Agreement. CONTRACTOR shall account for any property in its possession
paid for from funds received from CITY, or property supplied to CITY may fix the fee, if the
Agreement provides for a fee, to be paid CONTRACTOR in proportion to the value, if any, of the
work performed up to the time of termination. CONTRACTOR shall promptly submit its termination
claim to CITY and the Parties shall negotiate the termination settlement to be paid CONTRACTOR.
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15. Notices: All notices hereunder and communications with respect to this Agreement shall be
effective upon the mailing thereof by registered or certified mail, return receipt requested, and
postage prepaid to the persons named below:
CONTRACTOR: MV Transportation, Inc.
Attention: Office of the General Counsel
5910 North Central Expressway
Dallas, TX 75206
CITY: CITY OF ATASCADERO
Attention: Dawn Patterson
6500 Palma Avenue Phone:805-470-3180
Atascadero, CA 93422 dpatterson@atascadero.org
16. Proprietary Rights: All inventions, improvements, discoveries, proprietary rights, patents,
and copyright made by CONTRACTOR under this Agreement shall be made available to CITY with
no royalties, charges,or other costs, but shall be owned by CONTRACTOR. All manuals prepared
by CONTRACTOR under this Agreement shall be made available to CITY at no charge and become
property of CITY. The required financial and activity reports per other sections of this Agreement
are excluded from this provision and shall be owned by CITY. CONTRACTOR may make
presentations and releases relating to the project. Any report, public releases, papers, and other
formal publications shall be subject to the approval of CITY before they are released.
17. Shortages and Delays:
(a) In the event that CITY delays providing items under Section 5(d) as herein provided,
the number and size required, then CONTRACTOR shall not be responsible for any delays or
resulting decline in the quality of service directly related to such failure by CITY.
(b) CONTRACTOR shall not be held responsible for losses, delays,failure to perform,or
excess costs caused by events beyond the control of CONTRACTOR. Such events may include but
are not restricted to the following: Acts of God; fire, epidemics, earthquake, flood, or other natural
disasters;acts of government or public; riots,strikes,war,civil disorder,orfuel shortages. However,
CONTRACTOR shall not receive payment for the vehicle service hour rate, and only the mutually
agreed direct services provided portion of fixed monthly rate during the period of time that service is
not provided. CONTRACTOR also grants CITY the right to provide these services through other
means on a temporary basis should CONTRACTOR be unable to perform said services.
18. Audit: CONTRACTOR shall permit the authorized representatives of CITY, State of
California,the U.S. Department of Transportation,and the Comptroller General of the United States
to inspect and audit all data and records of CONTRACTOR relating to performance under this
Agreement.
19. No Government Obligation to Third Parties:
(a) CITY and CONTRACTOR acknowledge and agree that, notwithstanding any
concurrence by the Federal Government in or approval of the solicitation or award of the underlying
Agreement, absent the express written consent by the Federal Government, the Federal
Government is not a Party to this Agreement and shall not be subject to any obligations or liabilities
to CITY,CONTRACTOR,or any other Party(whether or not a Party to that Agreement)pertaining to
any matter resulting from the underlying Agreement.
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(b) CONTRACTOR agrees to include the above clause in each subcontract financed in
whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall
not be modified, except to identify the SUBCONTRACTOR who will be subject to its provisions.
20. Transportation Data Reporting: CONTRACTOR shall report operating and financial data to
CITY in accordance with the Uniform Financial Accounting and Reporting Elements (FARE) as
required under NTD of the Urban Mass Transportation Act of 1964 as amended and the California
Public Utilities Code,Chapter 4,Section 99243,and California Administrative Code Title 21,Chapter
3,Subchapter 2,as required under California Transportation Development Act,plus any information
required by CITY.
21. Workers'Compensation: CONTRACTOR certifies that it is aware of the provisions of the
Labor Code of the State of California which require every employer to be either insured against
liability for Workers'Compensation or implement self-insurance in accordance with such provisions
of that Code,and it certifies that it will comply with such provisions of that Code, and it certifies that it
will comply with such provisions before commencing the performance of the work of this Agreement.
22. Insurance: With respect to performance of work under this Agreement, CONTRACTOR
shall maintain and shall require all of its subcontractors to maintain insurance as described below:
(a) Workers'compensation insurance with statutory limits as required by the Labor Code
of the State of California. Said policy shall be endorsed with the following specific
language:
"This policy shall not be canceled or materially changed without first giving thirty(30)days'
prior written notice to CITY, directed to the attention of CITY Transit Manager per Section
16.
(b) Commercial or Comprehensive General and Automobile Liability covering per-
sonal/bodily injury and property damage for all activities of CONTRACTOR and its subcontractors
arising out of or in connection with this Agreement, written on a broad form commercial or
comprehensive general and auto liability basis including but not limited to blanket contractual;
automobile including CITY-owned transit buses, service vehicles, and automobiles including
coverage of owned, hired, and non-owned vehicles; employer's non-ownership liability; operator's
liability; and independent contractor's liability coverage in an amount no less than $5,000,000
combined single limit personal injury and property damage for each occurrence. Coverage shall be
for the term of this Agreement.
Each such policy shall be endorsed with the following specific language:
(1) CITY is named as an insured for all liability arising out of the operations by or on
behalf of the named insured, and this policy protects CITY, its officers, agents,
and employees against liability for bodily injuries, deaths, or property damage or
destruction arising in any respect directly or indirectly in the performance of the
Agreement.
CONTRACTOR shall obtain an Additional Insured Endorsement from its
insurance carrier naming the following additional insureds:
CITY OF ATASCADERO
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CONTRACTOR agrees to provide Additional Insured Endorsements as requested
by CITY during the term of Agreement.
(2) The inclusion of more than one insured shall not operate to impair the rights of
one insured against another insured and coverages afforded shall apply as
though separate policies had been issued to each insured, but this Agreement
shall not operate to increase the insurance company's total limit of liability.
(3) The insurance provided herein is primary,and no insurance or self-insurance held
or owned by CITY shall be called upon to contribute to a loss but only as respects
work performed by the named insured for CITY.
(4) The coverage provided by this policy shall not be reduced or canceled without
thirty (30) days'written notice given to CITY by certified mail.
Should CITY wish to cancel this insurance coverage, it shall be canceled based
on thirty(30)days'written notice prior to the date of cancellation. Insurance cost
shall be pro-rata for those days of coverage provided per this Agreement.
(c) Property All-Risk Damage coverage shall provide first-dollar reimbursement to CITY
for any vehicle or equipment losses incurred and not offset by other Parties.
(d) Documentation: The following documentation shall be submitted to CITY:
(1) Properly executed Certificates of Insurance clearly evidencing all coverages,
limits, and endorsements required above. Said Certificates shall be submitted
prior to the execution of this Agreement.
(2) Signed copies of the specified endorsements for each policy. Said endorsement
copies shall be submitted within thirty(30) days of execution of Agreement.
(3) Upon CITY's written request, certified copies of insurance policies. Said policy
copies shall be submitted within thirty(30) days of CITY's request.
(e) Policy Obligations: CONTRACTOR's indemnity and other obligations shall not be
limited by the foregoing insurance requirements.
(f) Material Breach: If CONTRACTOR, for any reason, fails to maintain insurance
coverage which is required pursuant to this agreement;the same shall be deemed a material breach
of Agreement. CITY, at its sole option, may terminate this Agreement and obtain damages from
CONTRACTOR resulting from said breach. Alternatively, CITY may purchase such required
insurance coverage and,without further notice to CONTRACTOR,CITY may deduct from sums due
to CONTRACTOR any premium costs advanced by CITY for such insurance. These remedies shall
be in addition to any other remedies available to CITY.
(g) CITY Insurance Coverage: CITY will provide property all-risk damage coverage
(including fire, extended coverage, theft, vandalism, etc.) for CITY buildings, bus stops, and
contents; however, CONTRACTOR will be responsible for physical damage costs (such as labor,
repairs, services, parts, and materials) above the aggregate loss not covered by other insurance
payments per subsection (c) above. Excessive damage losses shall serve as the basis for
Agreement termination.
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23. Fidelity Bond/Insurance: During the period of time this Agreement shall be in effect,
CONTRACTOR shall cause its staff personnel to be covered under an appropriate bond/insurance
policy protecting CITY from employee theft up to the minimum amount of Fifty Thousand Dollars
($50,000)with respect to any once occurrence by CONTRACTOR employees.
24. Nondiscrimination: The following requirements apply to the underlying Agreement:
(a) 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, 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, CONTRACTOR agrees to comply with applicable Federal implementing regulations and
other implementing requirements FTA may issue.
(b) Equal Employment Opportunity - The following equal employment opportunity
requirements apply to the underlying Agreement:
(1) 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, CONTRACTOR agrees to comply with all applicable equal employment
opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations,
"Office of Federal Agreement Compliance Programs, Equal Employment
Opportunity, Department of Labor,"41 C.F.R. Parts 60 et seg ., (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.
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, CONTRACTOR agrees to comply with any implementing requirements
FTA may issue.
(2) 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, CONTRACTOR agrees to refrain from discrimination against present and
prospective employees for reason of age. In addition, CONTRACTOR agrees to
comply with any implementing requirements FTA may issue.
(3) Disabilities-In accordance with section 102 of the Americans with Disabilities Act,
as amended, 42 U.S.C. § 12112, 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, CONTRACTOR agrees to comply with any
implementing requirements FTA may issue.
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(c) CONTRACTOR also agrees to include these requirements in each subcontract
financed in whole or in partwith Federal assistance provided by FTA, modified only if necessaryto
identify the affected Parties.
25. Conflict of Interest: CONTRACTOR promises that it presently has no interest which would
conflict in any manner or degree with the performance of services hereunder. CONTRACTOR
further promises that in performance of this Agreement, no person having such interest shall be
employed.
26. Retention of Records: CONTRACTOR and CITY agree to retain all documents relevant to
this Agreement for four years from the termination of the Agreement or until all federal/state audits
are complete for the period CONTRACTOR performed under this agreement. Except in the event of
litigation or settlement of claims arising from the performance of this Agreement, in which case
CONTRACTOR agrees to maintain same until CITY, 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). Upon request,
CONTRACTOR shall make available these records to CITY,state,or federal government personnel.
27. Emergency Procedures: In the event of a major emergency such as an earthquake,flood,
or man-made catastrophe, CONTRACTOR shall make labor, management, transportation and
communication resources available to the degree possible for emergency assistance. If the normal
line of direct authority from CITY is intact, CONTRACTOR shall follow instructions of CITY. If the
normal line of direct authority is broken, and for the period it is broken, CONTRACTOR shall make
the best use of transportation resources following to the degree possible the direction of an
organization such as the police, Red Cross, or National Guard, which appears to have assumed
responsibility. Emergency uses of transportation may include evacuation,transportation of injured,
and movement of people to food and shelter.
CONTRACTOR shall be paid for said emergency assistance pursuant to the compensation
rates set forth in the Agreement. Payment for such assistance shall not be included in the maximum
financial obligation as provided in the Agreement. Upon the cessation of an emergency as
determined by City, CONTRACTOR shall immediately resume normal transit operations as required
under the Agreement.
28. Conflicting Use: CONTRACTOR shall not use any vehicle,equipment, personnel,orother
facilities which are provided by CITY for performing services under this Agreement for any use what-
soever other than provided for in this Agreement.
29. Liaison: CONTRACTOR shall maintain on-going liaison with CITY regarding all public
transit activities and any matters relating to the performance of this Agreement, including
complaints. Such liaison includes but is not limited to CONTRACTOR's attendance at meetings as
required.
30. Failure to Perform: It is agreed by both Parties that strict adherence to adopted routes and
schedules of operation is of primary importance.
CITY and CONTRACTOR will monitor service performance to assure that strict adherence
of routes and schedules are being maintained. If performance is found to be substandard, CITY
may request in writing adequate assurance of performance as defined under provision 33 of this
Agreement.
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CONTRACTOR understands that continual substandard performance including but not
limited to service runs departing ahead of schedule, missed service runs, service runs departing
scheduled stops fifteen minutes or more after the scheduled time, frequent accidents and safety
violations, and frequent public complaints regarding driver behavior are grounds for termination of
this Agreement.
31. Damages and Misuse of CITY owned Vehicles, Equipment, Tools, and Facilities: It is
understood that excessive damages to and misuse of any vehicles, equipment,tools, and facilities
by CONTRACTOR are grounds for termination of this Agreement. At the commencement of this
Agreement, CITY and CONTRACTOR will collectively assess and record the condition of all
equipment, vehicles, and other CITY owned assets associated with this agreement. CITY and
CONTRACTOR agree to conduct a similar assessment of assets at the conclusion of this
agreement to determine if CONTRACTOR has damaged CITY assets beyond what is reasonable
and expected and if CITY is due compensation for any damages caused by CONTRACTOR. CITY
may choose to use a qualified third-party expert to conduct such an assessment.
32. Compliance with Laws and Regulations: CONTRACTOR shall comply with any federal,
state, and local laws and regulations or requirements of funding agencies such as Federal
alcohol/drug testing, the Federal Immigration and Nationality Act, DMV Pull-Notice System for
Drivers, and any other matters that impact eligibility for funding, risk exposure, safety, or other
relevant area of endeavor.
CONTRACTOR shall indemnify, protect, defend, and save harmless CITY and its officers,
agents, and employees from all fines, penalties, and liabilities imposed upon CITY under any such
laws, rules, and regulations by any public agency, authority, or court having jurisdiction over the
Parties hereto, when the imposition of same is attributed to the failure of CONTRACTOR to keep
fully informed and to comply with obligations in this regard.
A. Indemnification for Professional Liability. When the law establishes a professional
standard of care for Contractor's Services, to the fullest extent permitted by law, Contractor shall
indemnify, protect, defend and hold harmless City and any and all of its officials, employees and
agents("Indemnified Parties")from and against any and all losses, liabilities, damages, costs and
expenses, including attorney's fees and costs to the extent same are caused in whole or in part by
any negligence,or wrongful act,error or omission of Contractor,willful misconduct,or recklessness
of its officers,agents, employees or subcontractors(or any entity or individual that Contractor shall
bear the legal liability thereof) in the performance of professional services under this agreement.
B. Indemnification for other than Professional Liability. Other than in the performance of
professional services and to the full extent permitted by law,Contractor shall indemnify,defend and
hold harmless City, and any and all of its employees, officials and agents from and against any
liability (including liability for claims, suits, actions, arbitration proceedings, administrative
proceedings, regulatory proceedings, losses,expenses or costs of any kind,whether actual,alleged
or threatened, including attorney's fees and costs, court costs, interest, defense costs, and expert
witness fees),where the same arise out of, are a consequence of, or are in any way attributable to,
in whole or in part,the performance of this Agreement by Contractor or by any individual or entity for
which contractor is legally liable, including but not limited to officers, agents, employees or
subcontractors of Contractor.
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C. General Indemnification Provisions. Contractor agrees to obtain executed indemnity
agreements with provisions identical to those set forth here in this section for each and every
subcontractor or any other person or entity involved by, for, with or on behalf of Contractor in the
performance of this agreement. In the event contractor fails to obtain such indemnity obligations
from others as required here,Contractor agrees to be fully responsible according to the terms of this
section. Failure of City to monitor compliance with these requirements imposes no additional
obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to
indemnify and defend City as set forth here is binding on the successor, assigns or heirs of
Contractor and shall survive the termination of this agreement or this section.
33. Standard of Care: CITY has relied upon the professional ability and training of
CONTRACTOR as a material inducement to enter into this Agreement. CONTRACTOR hereby
warrants that all its work will be performed in accordance with generally accepted professional
practices and standards as well as the requirements of applicable federal, state, and local laws, it
being understood that acceptance of CONTRACTOR's work by CITY shall not operate as a waiver
or release.
34. Status of Contractor: The Parties intend that CONTRACTOR, in performing the services
hereinafter specified, shall act as an independent contractor and shall have control of the work and
the manner in which it is performed. CONTRACTOR is not to be considered an agent or employee
of CITY and is not entitled to participate in any pension plan, insurance, bonus, or similar benefits
CITY provides its employees. In the event CITY exercises its right to terminate this Agreement
pursuant to Section 19 above, CONTRACTOR expressly agrees that it shall have no recourse or
right of appeal under rules, regulations, ordinances, or laws applicable to employees.
35. Taxes: CONTRACTOR agrees to file federal and state tax returns and pay all applicable
taxes on amounts paid pursuant to this Agreement and shall be solely liable and responsible to pay
such taxes and other obligations, including, but not limited to, state and federal income and FICA
taxes. CONTRACTOR agrees to indemnify and hold CITY harmless from any liability which it may
incur to the United States or to the State of California as a consequence of CONTRACTOR's failure
to pay,when due, all such taxes and obligations. In case CITY is audited for compliance regarding
any withholding or other applicable taxes, CONTRACTOR agrees to furnish CITY with proof of
payment of taxes on these earnings.
36. Disadvantaged Business Enterprise: CONTRACTOR agrees to take the following
measures to facilitate participation by disadvantaged business enterprises (DBE) in the Project:
(a) CONTRACTOR agrees to comply with section 1101(b) of TEA-21, 23 U.S.C. § 101
note, and U.S. DOT regulations, Participation by Disadvantaged Business Enterprises in
Department of Transportation Financial Assistance Programs,"49 C.F.R. Part 26.
(b) CONTRACTOR agrees that it shall not discriminate on the basis of race,color, national
origin, or sex in the award and performance of any third Party Agreement, 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 C.F.R. Part 26. CONTRACTOR agrees to take all necessaryand
reasonable steps set forth in 49 C.F.R. Part 26 to ensure nondiscrimination in the award and
administration of all third Parry contracts and sub-agreements supported with Federal assistance
derived from the U.S. DOT. CONTRACTOR's DBE program, as required by 49 C.F.R. Part 26 and
approved by the U.S. DOT, is incorporated by reference and made part of the Grant Agreement or
Cooperative Agreement. Implementation of this DBE program is a legal obligation, and failure to
carry out its terms shall be treated as a violation of the Grant Agreement or Master Agreement.
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Upon notification to CONTRACTOR of its failure to implement its approved DBE program,the U.S.
DOT may impose sanctions as provided for under 49 C.F.R. Part 26 and may, in appropriate cases,
refer the matter for enforcement under 18 U.S.C. § 1001,and/or the Program Fraud Civil Remedies
Act, 31 U.S.C. §§ 3801 et seq.
37. Certification Regarding Debarment Suspension Ineligibility, and Voluntary Exclusion --
Lower-Tier Covered Transaction:
(a) The prospective lower-tier participant certifies, by submission of this bid or proposal,
that neither it nor its "principals" (as defined at 49 CFR h29.105[p]) is presently debarred, sus-
pended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in
this transaction by any Federal department or agency.
(b) When the prospective lower-tier participant is unable to certify to the statements in this
certification, such prospective participant shall attach an explanation to this proposal.
38. Government-wide Debarment and Suspension(Non-procurement):CONTRACTOR agrees
to comply,and assures the compliance of each third Party CONTRACTOR and SUBCONTRACTOR
at any tier,with Executive Orders Nos. 12549 and 12689,"Debarment and Suspension,"31 U.S.C.§
6101 note, and U.S. DOT regulations, "Government-wide Debarment and Suspension (Non-
procurement),"within 49 C.F.R. Part 29.
39. Lobbying: CONTRACTOR shall certify compliance with 49 CFR Part 20 Restrictions on
Lobbying.
40. Lobbying Restrictions: CONTRACTOR agrees to:
(a) Refrain from using Federal assistance funds to support lobbying,
(b) Comply,and assure the compliance of each third Party CONTRACTOR at any tier and
each SUBCONTRACTOR at any tier,with U.S. DOT regulations, "New Restrictions on Lobbying,"
49 C.F.R. Part 20, modified as necessary by 31 U.S.C. § 1352.
(c) 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.
41. Charter Bus Requirements: CONTRACTOR agrees to comply with 49 U.S.C. 5323(d)and
49 CFR Part 604,which provides that recipients and sub-recipients 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.
42. School Bus Requirements: Pursuant to 69 U.S.C. 5323(f) and 49 CFR Part 605,
CONTRACTORs and sub-recipients 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 sub-recipients may not use federally funded
equipment, vehicles, or facilities.
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43. Drug and Alcohol Testing:
(a) CONTRACTOR agrees to establish and implement a drug and alcohol testing program
that complies with 49 CFR Parts 653 and 654, produce any documentation necessary to establish
its compliance with Parts 653 and 654, and permit any authorized representative of the United
States Department of Transportation or its operating administrations,the State Oversight Agency of
California, or CITY, to inspect the facilities and records associated with the implementation of the
drug and alcohol testing program as required under 49 CFR Parts 653 and 654 and review the
testing process. CONTRACTOR agrees further to certify annually its compliance with Parts 653 and
654 before March 15 and to submit the Management Information System (MIS) reports before
March 15 to CITY Transit Manager and FTA Office of Safety and Security. To certify compliance,
CONTRACTOR shall use the"Substance Abuse Certifications"in the"Annual List of Certifications
and Assurances for Federal Transit Administration Grants and Cooperative Agreements,"which is
published annually in the Federal Register.
(b) CONTRACTOR agrees to comply with the following Federal substance abuse
regulations:
(1) Drug-Free Workplace. U.S. DOT regulations, „Drug-Free Workplace Require-
ments (Grants),”49 C.F.R. Part 29, Subpart F, as modified by 41 U.S.C. §§ 702 et seq.
(2) Alcohol Misuse and Prohibited Drug Use. FTA regulations, Prevention of Alcohol
Misuse and Prohibited Drug Use in Transit Operations,"49 CFR Part 655,to the extent applicable.
CONTRACTOR agrees to establish and implement a drug and alcohol testing program that
complies with 49 CFR Parts 655, produce any documentation necessary to establish its compliance
with Parts 655, and permit any authorized representative of the United States Department of
Transportation or its operating administrations,the State Oversight Agency of California,or CITY,to
inspect the facilities and records associated with the implementation of the drug and alcohol testing
program as required under 49 CFR Parts 655 and review the testing process. CONTRACTOR
agrees further to certify annually its compliance with Part 655 before February 15 and to submit the
Management Information System (MIS) reports before February 15 to CITY Transit Manager. To
certify compliance CONTRACTOR shall use the "Substance Abuse Certifications" in the "Annual
List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative
Agreements,"which is published annually in the Federal Register.
44. Program Fraud and False or Fraudulent Statements or Related Acts:
(a) 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 Agreement, 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 Agreement or the FTA assisted project for which this Agreement work is being
performed. In addition to other penalties that may be applicable, 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 CONTRACTOR to the extent the
Federal Government deems appropriate.
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(b) 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 Agreement 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
CONTRACTOR, to the extent the Federal Government deems appropriate.
(c) CONTRACTOR agrees to include the above two clauses in each subcontract financed
in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses
shall not be modified, except to identify the SUBCONTRACTOR who will be subject to the
provisions.
45. Energy Conservation: 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, 42 U.S.C. §§ 6321 et seq..
46. Clean Water:
(a) 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.
CONTRACTOR agrees to report each violation to CITY and understands and agrees that CITY will,
in turn, report each violation as required to assure notification to FTA and the appropriate EPA
Regional Office.
(b) 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.
47. Clean Air:
(a) 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. CONTRACTOR
agrees to report each violation to CITY and understands and agrees that CITY will, in turn, report
each violation as required to assure notification to FTA and the appropriate EPA Regional Office.
(b) 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.
48. Recycled Products: To the extent applicable, CONTRACTOR agrees to comply with U.S.
EPA regulations, "Comprehensive Procurement Guidelines for Products Containing Recovered
Materials," 40 C.F.R. Part 247, implementing section 6002 of the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. § 6962, and otherwise provide a competitive preference for
products and services that conserve natural resources and protect the environment and are energy
efficient.
49. Incorporation of FTA 4220.1 E Terms: The preceding provisions include, in part, certain
Standard Terms and Conditions required by DOT, whether or not expressly set forth in the
preceding Agreement provisions. All contractual provisions required by DOT, as set forth in FTA
Circular 4220.1 E, dated June 19, 2003, 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. CONTRACTOR shall not perform any
act, fail to perform any act, or refuse to comply with any CITY of Sonoma request, which would
cause CITY to be in violation of the FTA terms and conditions.
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50. Federal Changes: 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 Department of Transportation, Federal Transit Administration, Master Agreement
(FTA MA (10) dated October, 2003), between Purchaser and FTA, as they may be amended or
promulgated from time to time during the term of this Agreement. CONTRACTOR's failure to so
comply shall constitute a material breach of this Agreement.
51. Vehicle Requirements: CONTRACTOR shall return all vehicles to CITY at the conclusion of
this Agreement in a condition equivalent to the condition of other vehicles at the time of the
commencement of this Agreement, normal wear and tear excluded.
52. Strikes: If during the term of this Agreement, the employees of CONTRACTOR go on
strike or otherwise refuse to perform the services required by this Agreement,and the transit service
and/or maintenance of vehicles is suspended or interrupted,CONTRACTOR shall only be paid the
fixed hourly rate per vehicle service hour payment under this Agreement for services actually
provided, and that portion of the fixed monthly rate of this Agreement that is not attributable to
wages and benefits of employees.
53. Termination for Non-Appropriation: CITY may terminate this Agreement at any time, upon
giving Contractor thirty (30) days written notice, for any of the following reasons:
(a) CITY has exhausted all funds legally available for payments to become due under this
Agreement;
(b) Funds which have been appropriated for purposes of this Agreement are withheld and
are not made available to CITY;
(c) No appropriation of funds for payments has been made for purposes of this Agreement
in the budget for the next fiscal year.
54. No Assignment of Claims: The Parties warrant and represent that each is authorized to
enter into this Agreement and that neither has made nor caused to be made any assignment of any
claim or cause of action that any Party has or may have in the future against the Parties herein
released.
55. Merger: This Agreement contains the entire understanding and agreement between the
Parties with respect to the matters referred to herein. No other representations, covenants,
undertakings or other prior or contemporaneous agreements, oral or written, respecting such
matters,which are not specifically incorporated herein, shall be deemed in any way to exist or bind
any of the Parties hereto.
56. Bindinq Agreement: All Parties hereto acknowledge that it or they are represented by an
attorney;that it or they have had an opportunity to discuss this Agreement with their attorney; and it
or they are fully aware of the contents of this Agreement and acknowledge that it is a legal and
binding agreement.
57. Modifications: Any modification,amendment or waiver of this Agreement must be in writing
and signed by all Parties hereto.
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58. Agreement Binds Successors in Interest:This Agreement and the covenants and conditions
contained herein shall apply to, be binding upon and inure to the legatees,devisees,administrators,
executors, legal representatives,assignees, successors,and agents of the Parties hereto,and may
not be altered, amended, modified or otherwise changed in any manner except by a writing
executed by the Parties.
59. Further Acts: The Parties shall execute and perform all further acts that may be reasonably
necessary to effectuate the provisions of this Agreement.
60. California Law: This Agreement is entered into and shall be construed and interpreted in
accordance with the laws of the State of California.
61. Construction: This Agreement shall be construed as if all Parties jointly prepared this
Agreement and any uncertainty and ambiguity shall not be interpreted against any one Party. Each
of the Parties acknowledges that this Agreement has been negotiated at arm's length among
persons knowledgeable in the matters herein. Accordingly, any rule of law -- including without
limitation California Civil Code § 1654, or any other statutes, legal decisions, or common law
principles of similar effect--that would require interpretation of any ambiguities in this Agreement
against the Party that has drafted it, is of no application and hereby is expressly waived. This
Agreement and its provisions shall be interpreted in a reasonable manner to effect the Parties'
intentions.
62. No Waiver: The waiver of any breach of any term or promise contained in this Agreement
shall not be deemed to be a waiver of such term or provision or any subsequent breach of the same
or any other term or promise contained in this Agreement.
63. Venue and Continued Jurisdiction: Any action to enforce the terms of this Agreement or for
disputes arising out of or the breach thereof shall be brought and tried in the San Luis Obispo
Superior Court in the County of San Luis Obispo.
64. Severability: Except as is set forth in this paragraph, should any part, term, portion or
provision of this Agreement be decided by the courts to be illegal or in conflict with any law of the
State of California or the United States or otherwise be rendered unenforceable or ineffectual, the
validity of the remaining parts,terms, portions or provisions shall be deemed severable and shall not
be affected thereby, providing such remaining portions or provisions can be construed in substance
to constitute the Agreement that the Parties intended to enter into in the first instance.
65. Time of Essence: Time is and shall be of the essence of this Agreement and every
provision hereof.
66. Counterparts: This Agreement may be executed in counterparts or by facsimile.
67. No Third Party Beneficiaries: The Parties Agree that there are no third party beneficiaries to
this Agreement, nor do the Parties intend for there to be any third party beneficiaries to this
Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by
and through their respective officers thereunto duly authorized on the date written above.
CITY OF ATASCADERO MV TRANSPORTATION, INC.
By: r
By. c
RACH LLE RICKARD W.C. PIHL
City Manager Executive VP of Business Development
Date:
ATTEST:
By: 0�
MARCIA M. TORGERSON, City Cle
APPROVEaAS TO FORM FOR CITY:
By: L 6? '
BRIAN PIERIK, Clity Attorney
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