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HomeMy WebLinkAbout1998-06-23 - AGENDA REPORTS - CONTR WITH MOTOR COACH INDUSTR (2)CITY OF SANTA CLARITA AGENDA REPORT CONSENT CALENDAR -- DATE: June 23, 1998 City Manager Approval: Item to be presented by: SUBJECT: ASSIGNMENT AGREEMENT WITH LAKETRAN AND CONTRACT WITH MOTOR COACH INDUSTRIES; INC. DEPARTMENT: Transportation & Engineering Services RECOMMENDED ACTION City Council approve the Assignment Agreement with Laketran of Ohio and the contract with Motor Coach Industries, Inc. (MCI), authorize the City Manager to execute the Assignment Agreement and negotiate and execute the contract with MCI. BACKGROUND On January 13, 1998, the City Council authorized the acquisition of four new commuter coaches and the issuance of a Request for Proposals (RFP) for the acquisition of six additional commuter buses. The four new commuter coaches were acquired and have been in passenger service since February 1998. The six additional buses will result in full City ownership of all commuter buses. As a result, the contractor will reduce the cost per revenue vehicle hour to account for lower maintenance costs and the residual value of the contractor -owned buses being disposed. Staff proposes that, in lieu of issuing an RFP, Council approve the Assignment Agreement with Laketran. Laketran, a transit agency based in Painesville Township, Ohio, provides commuter service to and from Cleveland. This agreement assigns to the City the rights under the option provision of Laketran's existing contract to purchase six 40 -foot commuter buses. Subsequent to this approval, staff recommends approval of a contract with Motor Coach Industries, Inc., for the manufacture of these buses. By assuming the option of an existing contract, the City realizes considerable time and cost savings. The RFP process, which can consume three to six months, is averted. The price paid by the City is based upon the price negotiated by Laketran in March 1997. In addition, staff has conducted a price analysis to ensure the most advantageous offer to the City. Finally, the option approach to acquisition is prevalent within the transit industry and is commonly accepted by the Federal Transit Administration (FTA). APPIOVEp A�enda Ite�:1L ASSIGNMENT AGREEMENT WITH LAKETRAN AND CONTRACT WITH MOTOR COACH INDUSTRIES, INC. June 23, 1998 Page 2 ALTERNATIVE ACTIONS Direct staff to pursue the Request for Proposal (RFP) procedure. Other action as determined by City Council. FISCAL IMPACT The City would finance the purchase of these buses in a similar manner by which the City acquired all of its new equipment in 1991. The estimated net annual capital cost will be $270,000 for the remaining six buses. Projections indicate sufficient funds available to cover this increased expense utilizing Proposition A, Proposition C, and Transportation Development Act (TDA) funds. This amount is included in the Transit Division budget for FY 1998-99. FTA capital funds will also be pursued to fund up to 80 percent of the cost, although financial projections assume 100 percent use of local funds. ATTACHMENTS Assignment Agreement with Laketran of Ohio Contract with Motor Coach Industries, Inc. S ATRANSrMGENDA\ncipwch.dm ASSIGNMENT AGREEMENT BETWEEN THE CITY OF SANTA CLARITA AND LAKETRAN THIS ASSIGNMENT AGREEMENT, made this day of 1998, between Laketran, having its principle office at 555 Lakeshore Boulevard, Painsville Township, Ohio 44077, and the City of Santa Clarita (CITY), having its principle office at 23920 Valencia Boulevard, Santa Clarita, California 91355 WITNESSETH, THAT: WHEREAS, CITY wishes to acquire six (6) 40 x 102 3 -axle commuter buses; and WHEREAS, Laketran holds an option for the purchase of this type of bus under a contract with the Motor Coach Industries, Inc. (MCI), dated July 17, 1997; and WHEREAS, Motor Coach Industries, Inc. has consented to the assignment to CITY by Laketran of its rights under the option provision in said contract with respect to six (6) 40 x 102 3 -axle commuter buses; NOW THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter contained, Laketran and CITY hereby agree as follows: SECTION 1. ASSIGNMENT Laketran hereby assigns all of its rights and interest in the purchase of six (6) 40 x 102 3 -axle commuter buses from Motor Coach Industries, Inc. pursuant to the Laketran/Motor Coach Industries, Inc. contract to CITY. The sole obligations of Laketran hereunder are to assign its rights to acquire six of these buses under its option with Motor Coach Industries, Inc. to CITY, to provide CITY with all procurement documentation and information produced in connection with the advertisement and 1 award of its contract with Motor Coach Industries, Inc. and to provide reasonable assistance to CITY in the event that the latter is called upon to defend (in a legal action or otherwise) its actions in purchasing these buses from Motor Coach Industries, Inc. Laketran shall have no other obligation to or interest in the six buses assigned hereunder or in any resultant contract between CITY and Motor Coach Industries, Inc.. All payments for the six buses to be assigned shall be the sole obligation of CITY who shall make such payments directly to Motor Coach Industries, Inc. SECTION 2. WARRANTIES Laketran makes no warranties or representations whatsoever, either express or implied, as to the fitness, design, or condition of, or as to the quality of the material, equipment, or workmanship in or on the buses being assigned, it being agreed that all such risk are to be borne by CITY. SECTION 3. DELIVERY No portion of the six buses to be assigned hereunder shall be delivered by Motor Coach Industries, Inc. to CITY until Laketran has first received its entire order under its contract with Motor Coach Industries, Inc. CITY shall accept, as between it and Laketran, all risk for the failure of Motor Coach Industries, Inc, to meet its contractual obligations to Laketran, and Laketran shall not be liable for any delays that CITY may suffer as the result of Motor Coach Industries, Inc.'s failure to timely deliver the buses to be assigned. CITY maintains all rights possessed by Laketran to enforce delivery. SECTION 4. SUB -ASSIGNMENT CITY shall not sell, assign, transfer, or in any way encumber this Assignment Agreement or the six buses to be assigned hereunder without the prior written consent of Laketran, which consent shall not unreasonably withheld. 2 SECTION 5. INDEMNIFICATION CITY shall indemnify and hold harmless Laketran, its subsidiaries, and their directors, officers, employees, agents, and servants (collectively, "Laketran") from all losses, damages, injuries, liabilities, claims, and demands of whatsoever kind or nature, including but not limited to those for wrongful death, for personal injuries, or for property damages, regardless of the cause thereof and whether arising or alleged to arise from acts or omissions of CITY or Laketran, or whether arising or alleged to arise out of a default of Laketran under this Assignment Agreement, or out of or in connections with the design, manufacture, and purchase of the buses to be assigned, or out of the ownership of the buses by CITY, or out of the use, operation, maintenance, and repair of the buses, or out of the condition of the buses (including without limitation thereto latent or other defects, whether or not discoverable). CITY shall, at its own expense, defend any suit against Laketran based upon such losses, damages, injuries, liabilities, claims, and demands (even if such suit, claim, or demand is or appears to be groundless, false, or fraudulent). CITY shall bear all costs and expenses and reimburse Laketran for any costs or expenses it may incur for costs of investigation, hiring of expert witnesses, court costs, and reasonable counsel fees. In furtherance of these obligations, the parties agree to cooperate fully with each other and to furnish each with such papers, records, and other documents pertaining to any of the foregoing as the other may from time -to -time request. SECTION 6. GOVERNING LAW This Assignment Agreement shall be governed by and construed in accordance with the Laws of the State of Ohio. Any actions brought by CITY against Laketran under this Assignment Agreement shall be in the Court of Common Pleas in Lake County, Ohio. 3 SECTION 7. ENTIRE AGREEMENT This Assignment Agreement constitutes the entire agreement of the parties on the subject matter hereof and may not be changed, modified, discharged, or extended except by written instrument duly executed by Laketran and CITY. IN WITNESS WHEREOF, the parties hereto each pursuant to due authority, have . caused these presents to be executed, and their respective corporate seals to be hereunto impressed by their duly authorized officers as of the day and year first above.written. WITNESS THE EXECUTION of this Agreement on the day and year first written above. Attest: THE CITY OF SANTA CLAIRTA By: City Clerk Date: Approved as to form: Carl K. Newton, City Attorney Date: \transit\contracNake=tr.doc IM George A. Caravalho, City Manager Date: Laketran By: Frank J. Polivka, Laketran General Manager Date: Cl AGREEMENT BETWEEN THE CITY OF SANTA CLARITA AND MOTOR COACH INDUSTRIES, INC. This AGREEMENT BETWEEN THE CITY OF SANTA CLARPPA AND MOTOR COACH INDUSTRIES, INC. (Agreement) is entered into. this day of , 1998, by the City of Santa Clarita, (City), and, Motor Coach Industries, Inc. (SELLER). RECITALS WHEREAS, City has a desire to purchase a quantity of six 40 -foot buses; and WHEREAS, City desires to engage the services of SELLER; WHEREAS, SELLER has represented to City that it has the requisite personnel and experience, and is capable of building and delivering such buses; WHEREAS, SELLER wishes to build and deliver these buses; NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: SECTION 1. SCOPE OF WORK SELLER shall perform the work specified in EXHIBIT A, entitled Scope of Work, and in accordance with ATTACHMENT A, entitled Buy America; ATTACHMENT B, entitled Faithful Performance Bond; ATTACHMENT C, entitled Certification of Primary Participant Regarding Debarment, Suspension, and Other Responsibility Matters; ATTACHMENT D, entitled Certification of Lower -Tier Participant Regarding Debarment, Suspension, and Other Ineligibility and Voluntary Exclusion; ATTACHMENT E, entitled Certification of Compliance with Bus Testing Requirements; and ATTACHMENT F, entitled Certification Regarding Lobbying. SECTION 2. TERM OF AGREEMENT The term of this Agreement shall be from the date of execution of this Agreement, until final acceptance of all buses has been accomplished unless earlier terminated as provided in this Agreement. Page 1 SECTION 3. SCHEDULE OF PERFORMANCE The work of SELLER is to be completed according to the schedule set out in EXHIBIT B, entitled Schedule of Performance. Time is of the essence in this Agreement. SECTION 4. COMPENSATION AND METHOD OF PAYMENT Subject to the limitations contained in SECTION 9, TERMINATION, EXHIBIT A (Scope of Work) and EXHIBIT B (Schedule of Performance), SELLER shall be paid the amounts identified in EXHIBIT C (Compensation and Methods of Payment). SECTION 5. INDEPENDENT CONTRACTOR SELLER is an independent contractor and not an agent or employee of the City of Santa Clarita. As an independent contractor, SELLER shall obtain no rights to retirement, health care, or any other benefits which accrue to City of Santa Clarita employees. SELLER expressly waives any claim SELLER may have to any such rights. SECTION 6. ASSIGNABILITY The expertise and experience of SELLER are material considerations for this Agreement. SELLER shall not assign or transfer any interest in this Agreement or the performance of any of SELLER's obligations without the prior written consent of City. Any attempt by SELLER to assign or transfer any of SELLER's rights, duties, or obligations arising under this Agreement shall be void. City acknowledges its understanding that SELLER, in the performance of its duties pursuant to this Agreement, may utilize subcontractors. SECTION 7. INSURANCE General Liability and Property Damage Insurance. During the entire term of this Agreement, SELLER agrees to procure and maintain general liability and property damage insurance at its sole expense to protect against loss from liability imposed by law for damages on account of bodily injury, including death therefrom, suffered or alleged to be suffered by any person or persons whomsoever, resulting directly from any act or activities of City, or SELLER, its subcontractors or any person acting for City, or SELLER, or under its control or direction, and also to protect against loss from liability imposed by law for damages to any property of any person caused directly or indirectly by or from acts or activities of City, or SELLER, or its subcontractors, or any person acting for City or SELLER, or under its control or direction. Such public liability and property damage insurance shall also provide for and protect City against incurring any legal cost in defending claims for alleged loss. Such general liability and property damage insurance shall be maintained in full force and effect throughout the term of the Agreement and any extension thereof in the following minimum limits: A combined single limit policy with coverage limits in the amount of $5,000,000 per occurrence will be considered equivalent to the required minimum limits. Page 2 All of such insurance shall be primary insurance and shall name City of Santa Clarita as an additional insured. If the operation under this Agreement results in an increased or decreased risk in the opinion of the City Manager, then SELLER agrees that the minimum limits herein above designated shall be changed accordingly upon request by the City Manager. SELLER agrees that provisions of this paragraph as to maintenance of insurance shall not be construed as limiting in any way the extent to which SELLER may be held responsible for the payment of damages to persons or property resulting from SELLER's activities, the activities of its subcontractors, or the activities of any person or persons for which SELLER is otherwise responsible. Worker's Compensation Insurance. SELLER shall procure and maintain, at its sole expense, Worker's Compensation Insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for both SELLER and City against any loss, claim, or damage arising from any injuries or occupational diseases happening to any worker employed by SELLER in the course of carrying out the within Agreement. Automotive Insurance. SELLER shall procure and maintain, at its sole expense, throughout the term of this Agreement any extension thereof public liability and property damage insurance. coverage for automotive equipment with coverage limits of not less $1,000,000 combined single limit, and include automotive insurance as part of the $5,000,000 general liability coverage. All such insurance shall be primary insurance and shall name City of Santa Clarita as an additional insured. If SELLER does not own automobiles, SELLER shall provide a waiver releasing City from all liability resulting from SELLER's use of personal vehicles on project. Professional Liability Insurance. SELLER shall maintain professional liability insurance which provides coverage for negligent professional acts, errors, or omissions for which SELLER is legally liable, in the amount of $1,000,000 per claim and in aggregate which arises from the performance of professional Work by SELLER under this Agreement. The policy shall provide for coverage of claims occurring during the term of the warranties provided. Miscellaneous Insurance Requirement. A Certificate of Insurance, or an appropriate insurance binder accompanied by an endorsement naming the City as an additional insured, evidencing the above insurance coverage with a company acceptable to the City's Risk Management Officer shall be submitted to City prior to execution of this Agreement on behalf of the City. The terms of the insurance policy or policies issued to provide the above insurance coverage shall provide that said insurance may not be amended or canceled by the carrier, for non- payment of premiums otherwise, without 30 days prior written notice of amendment or cancellation to City. In the event the said insurance is canceled, SELLER shall, prior to the cancellation date, submit new evidence of insurance in the amounts heretofore established. If SELLER at any time during the term of this Agreement should fail to secure or maintain any insurance required under this Agreement, City shall be permitted to obtain such Page 3 insurance in SELLER's name and shall be compensated by SELLER for the cost of the insurance premiums upon receipt of SELLER of written notice that the premiums have been paid. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under the policy if not named as an additional insured, and an additional insured shall not be held liable for any premium or expense of any nature on the policy or any extension thereof solely because they are as additional insured thereon. Santa Clarita's Risk Manager is hereby authorized to reduce the requirements set forth above in the event he or she determines that such reduction is in Santa Clarita's best interest. SECTION 8. INDEMNITY SELLER agrees to indemnify, defend and hold harmless City and all of its officers, agents, and employees from any and all liability, claims, damages, or injuries to any person, including injury to SELLER's employees and all claims which arise from or are connected with the performance of or failure to perform the work or other obligations of this Agreement, or are caused or claimed to be caused by the acts or omissions of SELLER, its agents or employees, and all expenses of investigation and defending against same; provided, however, that this indemnification and hold harmless shall not include any claim arising from the active negligence or willful misconduct of the City, its agent or employees. SECTION 9. TERMINATION A. City may terminate this Agreement at any time by giving ten days' written notice of termination to SELLER. If City gives such notice of termination, SELLER shall cease immediately all work in progress. B. If SELLER or City fails to perform any material obligation under this Agreement, then, in addition to all other remedies, City or SELLER may terminate this Agreement immediately upon written notice. C. Upon termination by either City or SELLER, SELLER shall deliver to City all property of the City in SELLER's possession and copies of all reports, documents, and other work prepared by SELLER under this Agreement. SELLER shall furnish to City a final statement of the work performed for compensation. The statement shall indicate the task to which the work performed is to be charged, according to the categories shown in EXHIBIT A of this Agreement. Such statement shall also include a detailed record of actual reimbursable expenses, such as but not limited to copying costs, long distance telephone charges and computerized research. City will prepare a warrant payable to SELLER in the amount approved by City. City will then make final payment to SELLER for Work performed and reimbursable expenses incurred, subject to the limitation on reimbursement set forth in this Agreement. SECTION 10. LAW TO GOVERN, VENUE The law of the State of California shall govern this Agreement. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the county of Los Angeles. - In Page 4 the event of litigation in a U.S. District Court, exclusive venue shall lie in the Central -District of California, in Los Angeles. SECTION 11. COMPLIANCE WITH LAWS SELLER shall comply with all applicable laws, ordinances, codes and regulations of the federal, state. and local government. SECTION 12. NONDISCRIMINATION SELLER shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religious creed, national origin, ancestry, physical handicap, medical condition or marital status in connection with or related to .the performance of this Agreement. SECTION 13. CONFIDENTIAL INFORMATION SELLER shall treat all material marked as "CONFIDENTIAL" as such. SECTION 14. OWNERSHIP OF MATERIALS All reports, documents, floppy disks, diskettes or other materials developed or discovered by SELLER during the course of this Agreement shall be solely the property of City. SECTION 15. WAIVER Waiver by City or SELLER of any breach of any of the provisions of this Agreement shall not constitute a wavier of any other provision nor a waiver of any subsequent breach or violation of the same or any other provision of this Agreement. Acceptance by City of any work by SELLER shall not be a waiver of any of the provisions of this Agreement. SECTION 16. CONFLICT OF INTEREST SELLER shall at all times avoid conflict of interest or. appearance of conflict of interest with the interests of the City in the performance of this Agreement. SELLER's right to engage in other employment is subject to the provisions of EXHIBIT A of this Agreement. SECTION 17. EXHIBITS INCORPORATED EXHIBITS A through D are attached to and incorporated in this Agreement by this reference. Additional language describing specific duties and responsibilities are outlined in the exhibits and are inclusive to contract. Page 5 SECTION 18. NOTICES All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows: To CITY: City Manager City of Santa Clarita 23920 Valencia Boulevard, Suite 300 Santa Clarita, California 91355 Tel: (805) 294-2500 Fax: (805) 294-2517 and to: City Attorney City of Santa Clarita 611 West Sixth Street, Suite 2500 Los Angeles, California 90017 Tel: (213) 236-0600 Fax: .(213)236-2700 1WIWNQ 0:111 Notice shall be deemed effective on the date delivered or transmitted by, facsimile or, if mailed, three (3) days after deposit in the mail. SECTION 19. DISPUTE RESOLUTION: PERFORMANCE AFTER DISPUTE A. All disputes concerning the interpretation, performance, breach or termination of this Agreement shall be decided by binding arbitration before a retired federal or California judge, according to the provisions of Section 1280 et seq. Of the California Code of Civil Procedure, through the Los Angeles County offices of the Judicial Arbitration and Mediation Service (JAMS). The parties shall attempt to agree upon a retired judge from the JAMS panel, but if they are unable to agree within thirty (3) days after commencement of a proceeding, JAMS will provide alist of three available judges and each party may strike one. If for any reasons JAMS is unavailable, the dispute shall be decided by a retired federal or California judge, sitting as an arbitrator, and selected by the parties. If the parties are unable to agree upon a retired judge within 30 days after receipt of written notice, a retired judge shall be appointed by the Presiding Judge of the Los Angeles County Superior Court. The arbitrator shall render a written decision stating reasons therefor in reasonable detail within sixty (60) days after his appointment. The arbitrator's award shall be final and enforceable and maybe confirmed by the judgment of a court of competent jurisdiction. The prevailing party shall be entitled to recover its costs of arbitration, as well as costs and attorneys' fees, and expert Page 6 witness fees, as determined b the arbitrator, as well as costs and attorneys' fees in any proceedings to enforce an award. The parties reserve their rights to obtain provisional remedies from the courts, and no application for any such remedy shall be deemed inconsistent with the obligation to arbitrate disputes. B. Except for nonpayment of any portion of a statement presented to City by SELLER, if any dispute arises between the parties to this Agreement, SELLER shall continue to perform pending resolution of the dispute. SECTION 20. PRIOR AGREEMENTS AND AMENDMENTS This Agreement, including the EXHIBITS, embodies the entire understanding of the parties with respect to the matters addressed in this Agreement and the EXHIBITS and supersedes all other agreements entered into between the parties prior to the execution of this Agreement. No amendment of this Agreement shall be valid unless in writing duly executed by the parties or their authorized representatives. SECTION 21. BUY AMERICA REOUIREMENTS Pre -Award and Post -Delivery Audit Requirements. The SELLER agrees to comply with 49 U.S.C. 3 5323(1) and FTA's implementing regulation at 49 C.F.R. Part 663 and to submit the following certifications: A. Buy America Requirements: The SELLER shall complete and submit a declaration certifying either compliance or noncompliance with Buy America. If the Bidder/Offeror certifies compliance with Buy America (ATTACHMENT A), it shall submit documentation which lists: (1) Component and subcomponent parts of the rolling stock to be purchased identified by manufacturer of the parts, their country of origin and costs; and (2) The location of the final assembly point for the rolling stock, including a description of the activities that will take place at the final assembly point and the cost of final assembly. B. Federal Motor Vehicle Safety Standards (FMVSS): The SELLER shall submit: (1) Manufacturer's FMVSS self -certification sticker information that the vehicle complies with relevant FMVSS; or (2) Manufacturer's certified statement that the contracted buses will not be subject to FMVSS regulations. SECTION 22. PERFORMANCE BOND By submitting ATTACHMENT B, entitled Faithful Performance Bond, SELLER shall satisfy City's requirements that SELLER deposit with City a bond with values in the sum of ten percent (10%) of this Agreement's price to cover SELLER's failure to fully perform hereunder. Page 7 SECTION 23. GOVERNMENT WIDE DEBARMENT AND SUSPENSION Executive Order 12549, as implemented by 49 CFR Part 29, prohibits the City from contracting for goods and services from organizations that have been suspended or debarred from receiving Federally -assisted contracts. The City has submitted a certification to the effect that they will not enter into contracts over $100,000 with suspended or debarred contractors and that they will require their contractors (and their subcontractors) to make the same certification to them. Therefore, ATTACHMENT C, entitled Certification of Primary Participant Regarding Debarment, Suspension, and Other Responsibility Matters; and ATTACHMENT D, entitled Certification of Lower -Tier Participant Regarding Debarment, Suspension, and Other Ineligibility and Voluntary Exclusion; are required to be completed. SECTION 24. BUS TESTING The SELLER agrees to comply with 49 U.S.C. 3 5323(c) and FTA's implementing regulation at 49 CFR Part 665 and shall perform the following: A. A manufacturer of a new bus model or a bus produced with a major change in components or configuration shall provide a copy of the final test report to the recipient at a point in the procurement process specified by the recipient which will be prior to the recipient's final acceptance of the first vehicle. B. A manufacturer who releases a report under paragraph 1 above shall provide notice to the operator of the testing facility that the report is available to the public. C. If the manufacturer represents that the vehicle was previously tested, the vehicle being sold should have the identical configuration and major components as the vehicle in the test report, which must be provided to the recipient prior to recipient's final acceptance of the first vehicle. If the configuration or components are not identical, the manufacturer shall provide a description of the change and the manufacturer's basis for concluding that it is not a major change requiring additional testing. D. If the manufacturer represents that the vehicle is "grandfathered" (has been used in mass transit service in the United States before October 1, 1988, and is currently being produced without a major change in configuration or components), the manufacturer shall provide the name and address of the recipient of such a vehicle and the details of that vehicle's configuration and major components. E. SELLER shall•complete ATTACHMENT E, entitled Certification of Compliance With Bus Testing Requirements. SECTION 25. RESTRICTIONS ON LOBBYING As a recipient of federal funds, the City is required to certify compliance with the influencing restrictions and efforts of the SELLER to influence federal officials regarding specific procurements in excess of $100,000 that must be disclosed pursuant to section 1352, Title 31, U.S. Code. Page 8 The SELLER is required to complete and submit to the City the certification form (ATTACHMENT F), entitled Certification Regarding Lobbying, whether or not any lobbying efforts took place. If the SELLER did engage in lobbying activities, OMB Standard Form LLL, Disclosure of Lobbying Activities, must also be completed and submitted to the City. SECTION 26. CARGO PREFERENCE REQUIREMENTS As a recipient of federal funds, the City is required to enforce the regulations at 46 CFR 381.7, which require the SELLER: A. to use privately owned United States -Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States -Flag commercial vessels; B. to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, on -board commercial ocean bill -of -lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the contractor in the case of a subcontractor's bill -of -lading.) C. to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel. SECTION 27. ENERGY CONSERVATION The SELLER 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. 6200 et seq. SECTION 28. CLEAN WATER The SELLER 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 seg. The SELLER agrees to report each violation and understands that the City will meet all of its reporting requirements to the extent required by law to assure notification to FTA and the appropriate EPA Regional Office. The SELLER also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. Page 9 SECTION 29. ACCESS TO RECORDS A. The SELLER agrees to provide the City, 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 SELLER which are directly pertinent to this Agreement for the purposes of making audits, examinations, excerpts, and transcriptions. B. The SELLER 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 SELLER agrees to maintain same until.the City, the FPA Administrator, the.Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. SECTION 30. FEDERAL CHANGES SELLER 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 Agreement (FTA Master Agreement) between the City and FIA, as they may be amended or promulgated from time to time during the term of this contract. SELLER's failure to so comply shall constitute a material breach of this contract. A copy of the Agreement between the City and FTA is on file for the SELLER's review. SECTION 31. CLEAN AIR The SELLER agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. 33 7401 et sea. The SELLER agrees to report each violation to the City and understands and agrees that the City will, in tum, report each violation as required to assure notification to FIA and the appropriate EPA Regional Office. The SELLER also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. SECTION 32. CONTRACT WORK HOURS A. Overtime Requirements. Contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall not 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. B. Violation; Liability for Unpaid Wages;Liquidated Damages. In the event of any violation of the clause set forth in paragraph (a) of this section the SELLER 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 Page 10 shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (a) of this section, in the sum of $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 (a) of this section. C. Withholding for Unpaid Wages and Liquidated Damages. The SELLER 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 money 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 (b) of this section. D. The SELLER or subcontractor shall inset in any subcontracts the clauses set forth in this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in this section. E. Payrolls and basic records relating thereto shall be maintained by the SELLER during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of .wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act, 40 U.S.C. 276(a)), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonable anticipated in providing benefits under a plan or program described in section l(b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. SECTION 33. NO GOVERNMENT OBLIGATION The City and SELLER 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 the City, SELLER, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. Page 11 The SELLER 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. SECTION 34. FRAUD/FALSE STATEMENTS A. The SELLER acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. 333801 et sen. and U.S. DOT regulation, AProgram Fraud Civil Remedies,_ 49 C.F.R. Part 31, apply to its actions pertaining to this Agreement. Upon execution of the underlying contract, the SELLER 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 contract work is being performed. In addition to other penalties that may be applicable, the SELLER 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 SELLER to the extent the Federal Government deems appropriate. B. The SELLER 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. 35307, the Government reserves the right to impose the penalties of 18 U.S.C. 31001 and 49 U.S.C. 35307(n)(1) on the SELLER, to the extent the Federal Government deems appropriate. C. The SELLER 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. SECTION 35. CIVIL RIGHTS The following requirements apply to this Agreement: A. Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. 3 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. 36102, section 202 of the Americans with Disabilities Act of 1990,42 U.S.C. 3 12132, and Federal transit law at 49 U.S.C. 3 5332, the SELLER 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 SELLER 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 VH of the Civil Rights Act, as amended, 42 U.S.C. 3 2000e, and Federal transit laws at 49 U.S.C. 3 5332, the SELLER agrees to comply with all applicable equal employment Page 12 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. 1122246, Equal Employment Opportunity, as amended by Executive Order No. 11375, Amending Executive Order 11246 Relating to Equal Employment Opportunity, 42 U.S.C. 3 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 SELLER 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 SELLER 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. 33 623 and Federal transit law at 49 U.S.C.3 5332, the SELLER agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the SELLER 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. 3 12112, the SELLER 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 SELLER agrees to comply with any implementing requirements FTA may issue. C. The SELLER 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. SECTION 36. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION TERMS The preceding provisions include, in part, certain Standard Terms and Conditions required by the Department of Transportation (DOT), whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1D, dated April 15, 1996 (EXHIBIT D), 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 SELLER shall not perform any act, fail to perform any act, or refuse to comply with any the City requests which would cause the City to be in violation of the FTA terms and conditions. Page 13 WITNESS THE EXECUTION of this Agreement on the day and year first written above. Attest: THE CITY OF SANTA CLARTTA City Clerk Date Approved as to form: BURKE, WILLIAMS & SORENSEN By: Carl K. Newton, City Attorney Date: By: George Caravalho, City Manager Date: COMPANY NAME IM Date: Page 14 AGREEMENT BETWEEN THE CITY OF SANTA CLARITA AND MOTOR COACH INDUSTRIES, INC. Scope of Work SELLER shall furnish all materials and perform all of the work for the procurement of diesel buses and related equipment, in accordance with the Agreement Documents, and specifications for the Laketran Request for Proposals for Up To 15 40x102 3 -Axle Commuter Buses issued January 22, 1997, including variances and warranties shown below. Variances From Laketran Request for Proposal Engine Starter Engine Filter Minder Engine Titan Probalizer Transmission Titan Probalizer Fuel Tank Rear Run — Voltmeter Throttle Control Transmission Temperature . Engine Hour Meter Towing -7 Pt Elect. Connection HVAC Motors Rear Door Tires Wheels Wheel Hub/Lug Covers Drivers Seat Drivers Barrier Passenger Window Interior Trim — AntiGraffiti Farebox Destination Sign Destination Sign/UV Protection Annunciator MT Units/Destination Signs (2) HVAC — Intelligaire Training Addtl Decals Spanistvvetnam Increased Corrosion Package Pass. Windws/ Vandal Shields Fuel Prime Pump PA System - Lapel Mic Ext. Decals -Sealed Pass Chime - Front & Rear (2) Remote Cont Roadside Mirror Flashing Blue Light— Pass Stop Request System Air Starter Gauge — Dash Passenger Seats End of Variances EXHIBIT A AGREEMENT BETWEEN THE CITY OF SANTA CLARITA AND MOTOR COACH INDUSTRIES, INC. Schedule of Performance SELLER shall deliver six (6) coaches by XXXXXXX. Coaches shall be delivered at a rate not to exceed three (3) per day. Delivery shall occur only on weekdays from 7:00 a.m. to 2:00 p.m., excluding holidays. All deliveries shall be made by appointment with the Transportation Manager, at: City of Santa Clarita 25663 Avenue Stanford Santa Clarita, CA 91355 EXHIBIT B AGREEMENT BETWEEN THE CITY OF SANTA CLARITA AND MOTOR COACH INDUSTRIES, INC. Compensation and Method of Payment SECTION 1. For SELLER's full and complete performance of its obligations under this Agreement, City shall pay SELLER the firm -fixed sum of XXXXXXXXXXXXXXXX, said sum to include SELLER's total direct costs, indirect costs and profit and to be paid in accordance with the following provisions. SECTION 2. The following schedule shall establish the firm -fixed payment to SELLER by City. Payment shall be made within 30 days after: TASK Formal acceptance of buses ordered Completion of any required correction after acceptance Total firm -fixed price DOLLAR AMOUNT XXXXXXXXXXX XXXXXXXXXXX PERCENT OF TOTAL 90% 10% 100% SECTION 3. SELLER shall invoice City on a per bus basis and each invoice shall include: Agreement number; model and serial number of the bus; City -designated bus number; unit and total price; total invoice amount; weight of bus being invoiced (net curb weight); odometer reading at time of delivery. Final acceptance of the buses shall occur only upon City's release of the retention described in SECTION 2. SECTION 4. As partial security against SELLER's failure to satisfactorily fulfill all of its obligations under this Agreement, City shall retain ten percent (10%) of the amount of each invoice submitted for payment by SELLER. All retained funds shall be released by City and shall be paid to SELLER within thirty (30) days of completion of any required corrections after initial acceptance, per SECTION 2. SECTION 5. Unless otherwise provide in this Agreement, SELLER shall have title to and bear the risk of loss of or damage to the items purchased hereunder until they are delivered in conformity with this Agreement at the F.O.B. point specified herein, and upon such delivery title shall pass from SELLER and SELLER's responsibility for loss or damage shall cease, except for loss or damage resulting from SELLER's negligence. EXHIBIT C FTA Circular 4220.1]), dated April 15, 1996 Third Party Contracting Requirements It should be noted that FTA Program Guidance Circulars are revised over time. To confirm the most current version of any Circular contact the FTA at the address below, indicate Circular numbers required, and send $1.00 per copy: Federal Transit Administration Office of Administration Administrative Service Division, Room 7427 400 - 7th Street, S.W. Washington, D.C. 20590 You may also find selected Circulars on FTA's Home Page on the Internet at: http://www.fta.dot,gov EXHH9IT D BUY AMERICA CERTIFICATE OF COMPLIANCE WITH FTA REQUIREMENTS FOR BUSES, OTHER ROLLING STOCK, OR ASSOCIATED EQUIPMENT Certificate of Compliance The SELLER hereby certifies that it will comply with the requirements of 49 U.S.C. Section 53230)(2)(C), Section 165(b)(3) of the Surface Transportation Assistance Act of 1982, as amended, and the regulations of 49 C.F.R. 661.11: Date Signatu*P Company Name Title ATTACHMENT A FAITHFUL PERFORMANCE BOND (10% Of Agreement Price) KNOW ALL MEN BY THESE PRESENTS: That we, hereinafter referred to as SELLER, as principal, and as surety, are held and firmly bound unto the City of Santa Clarita, State of California, in the sum of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, lawful money of the United States of America, for the payment of which sum, well and truly to be made, we bind ourselves, jointly and severally, firmly by these presents. The condition of the foregoing obligation is such that, WHEREAS, said SELLER has been awarded and is about to enter into an Agreement with the City of Santa Clarita for the purchase of six (6) 40 -foot buses, as specified in said Agreement, and is required under the terms of said Agreement to give this bond in connection with the execution thereof; NOW THEREFORE, if said SELLER shall well and truly do and perform all of the covenants and obligations of said Agreement on his part to be done and performed at the times and in the manner specified therein, then this obligation shall be null and void, otherwise it shall be and remain in full force and effect; Should the SELLER fail to fully perform all requirements in accordance with the terms and conditions of the Agreement this bond shall be and remain in full force and effect; and the surety or sureties shall insure performance or shall pay to the City for the same an amount not exceeding the amount specified in this bond; Should a suit be brought against the City for any other matter concerning performance under the Agreement, surety or sureties shall undertake the defense of same on behalf of the City. PROVIDED, that any alterations in the work to be done, or the material to be furnished, which may be made pursuant to the terms of said Agreement, shall not in any way release either the SELLER or the surety thereunder, nor shall any extensions of time be granted under the provisions of said Agreement release either the SELLER or the surety, and notice of such alterations or extensions of the Agreement is hereby waived by the surety. ATTACHMENT B WITNESS our hands this day of 19_. (SEAL) Approved: SELLER By: Title Surety NOTE: The Performance Bond shall be issued by a corporate surety (not an individual surety) registered in the State of California and registered to do business in Los Angeles County. CERTIFICATION OF PRIMARY PARTICIPANT REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS (fmnnamn/priwipal) certifies to the best of its knowledge and belief, that it and its principals: 1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; 2. Have not within a three-year period preceding this bid been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; 3. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local), with commission of any of the offenses enumerated in paragraph (2) of this certification; and 4. Have not within a three-year period preceding this Agreement had one or more public transactions (federal, state or local) terminated for cause or default. If unable to certify to any of the statements in this certification, the participant shall attach an explanation to this certification. THE PRIMARY PARTICIPANT, CERTIFIES OR (firm namelprindpal) AFFIRMS THE TRUTHFULNESS AND ACCURACY OF THE CONTENTS OF THE STATEMENTS SUBMITTED ON OR WITH THIS CERTIFICATION AND UNDERSTANDS THAT THE PROVISIONS OF 31 U.S.C. SECTIONS 3801 ET SEQ. ARE APPLICABLE THERETO. Signature and Title of Authorized Official The undersigned Chief Legal Counsel for the SELLER hereby certifies that .the has authority under state and local law to comply with the subject assurances and that the certification above has been legally made. Signature of Attorney Date ATTACHMENT C CERTIFICATION OF PRIMARY PARTICIPANT REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS The (firm nam/principal) certifies to the best of its knowledge and belief, that it and its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency. If unable to certify to any of the statements in this certification, the participant shall attach an explanation to this certification. THE , CERTIFIES OR AFFIRMS THE (firm mmrlprincipap TRUTHFULNESS AND ACCURACY OF THE CONTENTS OF THE STATEMENTS SUBMITTED ON OR WITH THIS CERTIFICATION AND UNDERSTANDS THAT THE PROVISIONS OF 31 U.S.C. SECTIONS 3801 ET SEO. ARE APPLICABLE THERETO. Signature and Title of Authorized Official The undersigned Chief Legal Counsel for the SELLER hereby certifies that the has authority under state and local law to comply with the subject assurances and that the certification above has been legally made. Signature of Attorney Date ATTACHMENT D CERTIFICATION OF COMPLIANCE WITH BUS TESTING REQUIREMENTS The SELLER certifies that the vehicle offered in this procurement complies with 49 U.S.C. 3 5323(c) and Federal Transit Administration's implementing regulation at 49 CFR Part 665. The SELLER understands that misrepresenting the testing status of a vehicle acquired with Federal financial assistance may subject the undersigned to civil penalties as outlined in the Department of Transportation's regulation on Program Fraud Civil Remedies, 49 CFR Part 31, In addition, the undersigned understands that FTA may suspend or debar a manufacturer under the procedures in 49 CFR Part 29. Date Signature Company Name Title ATTACHMENT E CERTIFICATION REGARDING LOBBYING The SELLER certifies, to the best of his or her knowledge and belief, that: 1. No Federal appropriated fundshavebeen paid or will be paid, by. or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress; or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal Loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contact to an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form --LLL, Disclosure Form to Report Lobbying, in accordance with its instructions [as amended by Government wide Guidance for New Restrictions on Lobbying, 61 Fed. Reg. 1413 (1/19/96). Note: language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seg. ] 3. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance is placed when this transaction is entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, U.S.C. 3 1351 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. [Note: Pursuant to 31 U.S.C. 3 1352(c)(1) -(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.] The SELLER certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the SELLER understands and agrees that the provisions of 31 U.S.C. 3 3801, et seaapply to this certification and disclosure, if any. Signature of Contractor's Authorized Official Name and Title of Contractor's Authorized Official Date ATTACHMENT F