Fresno City Council
October 19, 2023

-1-

SERVICE AGREEMENT

CITY OF FRESNO, CALIFORNIA

THIS AGREEMENT (Agreement) is made and entered into, effective on August 1, 2023, by and between the CITY OF FRESNO, a Calif ornia municipal cor poration (City), and DILAX Systems US Inc., a Chicago based Corporation (Service Provider).

RECITALS
WHEREAS, City desires to obtain Professi onal services for an Annual Software and Hardware Maintenance Agreement for FAX fixed route Automated Passenger Counters (Project); and
WHEREAS, Service Provider is engaged in the bus iness of furnishing such services as Automatic Passenger Counter S ystems and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and
WHEREAS, Service Provider acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107; and WHEREAS, this Agreement will be administered for City by its Director of Transportation (Administrator) or designee.

AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows:

1. Scope of Services. Service Provider shal l perform to the satisfaction of City the services described in Exhibit A, including all work incident al to, or necessary to perform, such services even though not specifically described in Exhibit A.

2. Term of Agreement and Time for Performanc e. This Agreement shall be effective from the date first set forth above (Effect ive Date) and shall continue in full force and effect through July 31, 2028, pending two (2) optional 1-year extensions, subject to any earlier termination in accordance with this Agreement. The services of Service Provider as described in Exhibit A are to commence upon the Effective Date and shall be completed in a sequence assuring expeditious completion, but in any event, all such services shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit A.

3. Compensation.
(a) Service Provider’s sole compensati on for satisfactory performance of all services required or rendered pursuant to this Agreement shall be a total fee of $228,855.00, paid on the basis of the rates set forth in the schedule of fees and expenses contained in Exhibit A . Such fee includes all expenses incurred by Service Provider in performance of the services. (b) Detailed statements shall be rendered m onthly for services performed in the preceding month and will be payable in the normal course of City business.

City shall not be obligated to reimburse any expense for which it has not 

















-2-
received a detailed invoice with applicable copies of representative and identifiable receipts or records substantiating such expense. (c) The parties may modify this Agreem ent to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to Service Provider’s compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative for each party. Service Provider shall not be entitled to any additional compensation if services are performed prior to a signed written amendment.

4. Termination, Remedies , and Force Majeure.
(a) This Agreement shall terminate wit hout any liability of City to Service Provider upon the earlier of : (i) Service Provider’s filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party a gainst Service Provider; (ii) seven calendar days’ prior written notice with or without cause by City to Service Provider; (iii) City’s non- appropriation of funds su fficient to meet its obligations hereunder during any City fisc al year of this Agreement, or insufficient funding for the Project; or (iv) expiration of this Agreement. (b) Immediately upon any termination or ex piration of this Agreement, Service Provider shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to City any and all unearned payments and all pr operties and materials in the possession of Service Provider that are owned by City. Subject to the terms of this Agreement, Service Provider shall be paid compensation for services satisfactorily performed prior to the e ffective date of termination. Service Provider shall not be paid for any wo rk or services performed or costs incurred which reasonably could have been avoided.
(c) In the event of termination due to failur e of Service Provider to satisfactorily perform in accordance with the terms of this Agreement, City may withhold an amount that would otherwise be payable as an offset to, but not in excess of, City’s damages caused by such failure. In no event shall any payment by City pursuant to this Agreement constitute a waiver by City of any breach of this Agreement which may then exist on the part of Service Provider, nor shall such payment impair or prejudice any remedy available to City with respect to the breach.
(d) Upon any breach of this Agreem ent by Service Provider, City may (i) exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or ( iii) recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that City improperly terminated this Agreement for default, such terminati on shall be deemed a termination for convenience.


















-3-
(e) Service Provider shall provide Cit y with adequate written assurances of future performance, upon Administrato r’s request, in the event Service Provider fails to comply with any terms or conditions of this Agreement. (f) Service Provider shall be liable fo r default unless nonperformance is caused by an occurrence beyond the reasonable control of Service Provider and without its fault or negligence such as, acts of God or the public enemy, acts of City in its contractual capacity, fi res, floods, epidemics, quarantine restrictions, strikes, unusually se vere weather, and delays of common carriers. Service Provider shall notify Administrator in writing as soon as it is reasonably possible after the comm encement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to Administrator of the cessation of such occurrence.

5. Confidential Information and Ownership of Documents. (a) Any reports, information, or other dat a prepared or assembled by Service Provider pursuant to this Agreement shall not be made available to any individual or organization by Service Provider without the prior written approval of the Administrator. Du ring the term of this Agreement, and thereafter, Service Provider shall not , without the prior written consent of City, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of City, in cluding but not limited to business plans, marketing plans, financial info rmation, materials, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in City.
(b) Any and all writings and documents prepared or provided by Service Provider pursuant to this Agreement are the property of City at the time of preparation and shall be turned over to City upon expiration or termination of the Agreement. Service Provider shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each subcontractor to also comply with the requirements of this Section 5. (d) This Section 5 shall survive expira tion or termination of this Agreement.

6. Level of Skill. It is further mutua lly understood and agreed by and between the parties hereto that inasmuch as Service Provider represents to City that Service Provider and its subcontract ors, if any, are skilled in the profession and shall perform in accordance with the standards of said industry necessary to perform the services agreed to be done by it under this Agreement, City relies upon the skill of Service Provider and its subcontract ors, if any, to do and perform such services in a skillful manner and Servic e Provider agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance 

















-4-
of such services by City shall not operate as a release of Service Provider or any subcontractors from said industry and professional standards.

7. Indemnification. To the furthest extent allowed by law, Service Provider shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Service Provider or any other person, and from any and all claims, demands and actions in law or equity (inc luding reasonable attorney's fees, litigation expenses and cost to enforce this agreement), arising or alleged to have arisen directly or indirect ly out of performance of this Agreement. SERVICE Provider's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, offi cials, employees, agent s or volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers.

If Service Provider should subcontract al l or any portion of the work to be performed under this Agr eement, Service Provider shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph.

This section shall survive termination or expiration of this Agreement.

8. Insurance.
(a) Throughout the life of this Agreemen t, Service Provider shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of th is Agreement, with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amount s stated therein. However, the insurance limits available to City, it s officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of t he Agreement or any extension, Service Provider or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediatel y, and all payments due or that become due to Service Provider shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City 

















-5-
to terminate this Agreement. No acti on taken by City pursuant to this section shall in any way relieve Service Provider of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Service Provider shall not be deemed to release or diminish the liability of Service Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to a ll claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Service Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Service Provider, its principals, officers, agents, employees, or persons under the supervision of Service Provider, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d)

9. Conflict of Interest and Non-Solicitation.
(a) Prior to City’s execution of this Ag reement, Service Provider shall complete a City of Fresno conflict of interest di sclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, Service Provider shall have the obligation and duty to immediat ely notify City in writing of any change to the information provided by Service Provider in such statement. (b) Service Provider shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws and regulati ons including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government C ode Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 Ca lifornia Code of Regulati ons Section 18700 et. seq.). At any time, upon written reques t of City, Service Provider shall provide a written opinion of its legal c ounsel and that of any subcontractor that, after a due diligent inquiry, Se rvice Provider and the respective subcontractor(s) are in full complianc e with all laws and regulations.

Service Provider shall take, and r equire its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, Service Provider shall immediately notify City of these facts in writing. (c) In performing the work or serv ices to be provided hereunder, Service Provider shall not employ or retain the services of any person while such person either is employed by City or is a member of any City council, commission, board, committee, or similar City body. This requirement may 

















-6-
be waived in writing by the City Manager, if no actual or potential conflict is involved.
(d) Service Provider repres ents and warrants that it ha s not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit, or procure this Agreement or any rights/benefits hereunder. (e) Service Provider and any of its subcont ractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manag er, in advance and in writing.

Notwithstanding any approval given by the City Manager under this provision, Service Provider shall re main responsible for complying with Section 9(a), above.
(f) If Service Provider should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, Service Provider shall include the provisions of this Section 9 in each subcontract and require its subcontractors to comply therewith.
(g) This Section 9 shall survive expira tion or termination of this Agreement.

10. Recycling Program. In the event Service Provider maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, Service Prov ider at its sole cost and expense shall:
(a) Immediately establish and mainta in a viable and ongoing recycling program, approved by City’s Solid Waste Management Division, for each office and facility. Literature describing City recycling programs is available from City’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111.
(b) Immediately contact City’s Solid Wa ste Management Division at (559) 621- 1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility. (c) Cooperate with and demonstr ate to the satisfaction of City’s Solid Waste Management Division the establishment of the recycling program in paragraph (a) above and the ongoing maintenance thereof.

11. General Terms.
(a) Except as otherwise provided by law, all notices expressly required of City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Administrator or designee. (b) Records of Service Provider’s expenses pertaining to the Project shall be kept on a generally recogni zed accounting basis and shall be available to City or its authorized representatives upon request during regular business hours throughout the life of this Agreem ent and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of Service Provider pertaining to the Project shall be available fo r the purpose of making audits, 

















-7-
examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to City until such action is resolved, or until the end of said time period whichever shall later occur. If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Service Provider shall cause each s ubcontractor to also comply with the requirements of this paragraph. This Section 11(b) shall survive expiration or termination of this Agreement.
(c) Prior to execution of this Agreement by City, Service Provider shall have provided evidence to City that Service Provider is licensed to perform the services called for by this Agreement (or that no license is required). If Service Provider should subcontract all or any portion of the work or services to be performed under this Agreement, Service Provider shall require each subcontractor to provide evidence to City that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work.

12. Nondiscrimination. To the extent required by contro lling federal, state and local law, Service Provider shall not employ di scriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Viet nam era. Subject to the foregoing and during the performance of this Agreement, Service Provider agrees as follows:
(a) Service Provider will comply wit h all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disa bility, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of th e Vietnam era be excluded from participation in, be denied the benefits of , or be subject to discrimination under any program or activity made pos sible by or resulting from this Agreement.
(b) Service Provider will not discriminate against any employee or applicant for employment because of race, religi ous creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual or ientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Service Provider shall ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such requirement s hall apply to Service Provider’s employment practices including, but not be limited to, the following:
employment, upgrading, demotion or tran sfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Service 

















-8-
Provider agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause.
(c) Service Provider will, in all solicit ations or advertise ments for employees placed by or on behalf of Service Provi der in pursuit hereof, state that all qualified applicants will receive cons ideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
(d) Service Provider will send to each l abor union or representative of workers with which it has a collective bargaini ng agreement or other contract or understanding, a notice advising su ch labor union or workers' representatives of Servic e Provider’s commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(e) If Service Provider should subcontract all or any portion of the services to be performed under this Agreement, Se rvice Provider shall cause each subcontractor to also comply with the requirements of this Section 12.

13. Independent Contractor.
(a) In the furnishing of the services pr ovided for herein, Service Provider is acting solely as an independent contract or. Neither Serv ice Provider, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of City for any purpose. City shall have no right to control or supervi se or direct the manner or method by which Service Provider shall perform its work and functions. However, City shall retain the right to administer this Agreement so as to verify that Service Provider is performing its obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between Service Provider and City. Service Provider shall have no authority to bind City absent City’s express written consent. Except to the extent otherwise provided in this Agreement, Service Pr ovider shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an inde pendent contractor, Service Provider and its officers, agents, and employees s hall have absolutely no right to employment rights and benefits availa ble to City employees. Service Provider shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits.

In addition, together with its other obligations under this Agreement, Service Provider shall be solely responsibl e, indemnify, defend and save City harmless from all matters relating to employment and tax withholding for and payment of Service Provider’s employees, including, without limitation, (i) compliance with Social Security and unemployment insurance 

















-9-
withholding, payment of workers compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in City employment benefits, entitlements, programs and/ or funds offered employees of City whether arising by reason of any common law, de facto, leased, or co- employee rights or other theory. It is acknow ledged that during the term of this Agreement, Service Provider may be providing services to others unrelated to City or to this Agreement.

14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certifi ed mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof.

15. Binding. Subject to Section 16, below, onc e this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives.

16. Assignment.
(a) This Agreement is personal to Se rvice Provider and there shall be no assignment by Service Provider of it s rights or obligations under this Agreement without the pr ior written approval of the City Manager or designee. Any attempted assignment by Service Provider, its successors or assigns, shall be null and void unle ss approved in writing by the City Manager or designee.
(b) Service Provider hereby agrees not to assign the payment of any monies due Service Provider from City under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies due Service Provider directly to Service Provider.

17. Compliance With Law. In providing t he services required under this Agreement, Service Provider shall at all times comply with all applicable laws of the United States, the State of Cali fornia and City, and with a ll applicable regulations promulgated by federal, stat e, regional, or local admi nistrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement.

18. Waiver. The waiver by eit her party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.


















-10-

19. Governing Law and Venue. This Agreem ent shall be governed by, and construed and enforced in accordance with, the laws of the State of Ca lifornia, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction.

Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and an y rights and duties hereunder shall be Fresno County, California.

20. Headings. The section headings in th is Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement.

21. Severability. The provisi ons of this Agreement are seve rable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions.

22. Interpretation. The parties acknowledge t hat this Agreement in its final form is the result of the combined efforts of the parti es and that, should any provision of this Agreement be found to be ambi guous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.

23. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses.

24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement.

25. Precedence of Documents. In the event of any conflict between the body of this Agreement and any exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the exhibit or attachment. Furthermore, any terms or conditions contained within any exhibit or attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void.

26. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

27. No Third Party Beneficiaries. The rights, interests, duties, and obligations defined within this Agreement are in tended for the specific partie s hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties.

28. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiati ons, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both City and Service Provider. 

















-11-

29. The City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement, any delegation of authority must be expressly included in the Agreement.
[SIGNATURES FOLLOW ON THE NEXT PAGE.]

















-12-
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written.

CITY OF FRESNO,
a California municipal corporation
By:

Gregory A. Barfield, Interim Director
[Department]
APPROVED AS TO FORM:

ANDREW JANZ
City Attorney
By:

Date %UDQGRQ&ROOHW
6XSHUYLVLQJDeputy City Attorney
ATTEST:

TODD STERMER, CMC
City Clerk
By:

Date
Deputy
Addresses:

CITY:

City of Fresno
Attention: Susan Rogers, IS Supervisor
2223 G Street
Fresno, CA 93706
Phone: (559) 621-1418
E-mail: [email protected]
DILAX Systems US Inc.,
A Chicago based Corporation
By:

Name:

Title:
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
By:

Name:

Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
Service Provider:

DILAX Systems US Inc.

Attention: Michael Zander, President
203 N LaSalle Street, Suite 2100
Chicago, IL 60601
Phone: (312) 558-1485
E-mail: [email protected]
Attachments:

1. Exhibit A – Scope of Services

2. Exhibit B – Insurance Requirements

3. Exhibit C – Conflict of Interest Disclosure Form

4. Exhibit D – FTA Terms and Conditions

5. Exhibit E – Non-Lobbying Certification

6. Exhibit F – Debarment and Suspension Certification

7. Exhibit G – Buy America Certification





































EXHIBIT A

SCOPE OF SERVICES
Service Agreement between City of Fresno
and DILAX Systems US Inc.

Annual Maintenance Service Agreement Automatic Passenger Counter System

(Follows Next Page)



















[[[[SERENA TO INSERT EXHIBIT A HERE INTO FINAL PDF AND BEFORE ROUTING FOR SIGNATURES]]]]


















EXHIBIT B

INSURANCE REQUIREMENTS
Service Agreement between City of Fresno (City)
and DILAX Systems US Inc. (Service Provider)
Annual Maintenance Service Agreement Automatic Passenger Counter System

MINIMUM SCOPE OF INSURANCE

(a) Throughout the life of this Agreement, Se rvice Provider shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insu rance Commissioner to do business in the State of California and ra ted no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as ma y be authorized in wr iting by City’s Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to City, its officers, officials, employees, agents, and volunteer s as additional insureds, shall be the greater of the minimum limits specified t herein or the full limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Ag reement or any extension, Service Provider or any of its subcontractor fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to Service Provider shall be withheld until notice is received by Cit y that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate th is Agreement. No action taken by City pursuant to this section shall in any way relieve Service Provider of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, wit hout limitation, notif ication received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Service Provider shall not be deemed to release or diminish the liability of Serv ice Provider, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City shall apply to all claims and liabilit y regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Serv ice Provider. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Service Provider, vendors, suppliers, invitees, consultants, subcontractor or anyone employed directly or indirectly by any of them.

Coverage shall be at least as broad as:

1. The most current version of Insur ance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage 

















arising out of your business operati ons. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non- owned equipment), products and comple ted operations, and contractual liability (including, wit hout limitation, indemnit y obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.”

2. The most current version of ISO Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto).

3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.

4. Technology Professional Liability insurance appropriate to Service Provider’s profession. Coverage shall be sufficiently broad to respond to duties and obligations as is undertaken by Consultant in this agreement and shall include but not be limited to, claims involving infringement of intellectual property, including but not lim ited to infringement of copyright, trademark, trade dress, inva sion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide cove rage for breach response costs as well as regulatory fines penalties and credit monitoring expenses with limits sufficient to respond to these obligations.

5. MINIMUM LIMITS OF INSURANCE
Service Provider shall procure and maintain for the duration of the contract, and for 5 years thereafter, insurance with limits of liability not less than those set forth below.

However, insurance limits available to City, its officers, officials, employees, agents, and volunteers as additional insureds, shall be t he greater of the mini mum limits specified herein or the full limit of any insurance proceeds available to the named insured:

1. COMMERCIAL GENERAL LIABILITY
(i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.

2. COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage. 

















3. WORKERS COMPENSATION INSURANCE as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.

4. TECHNOLOGY PROFESSIONAL LIABILITY INSURANCE with limits of not less than:
(i) $2,000, 000 per claim/occurrence; and,
(ii) $2, 000,000 policy aggregate

UMBRELLA OR EXCESS INSURANCE
In the event Service Provider purchases an Um brella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the City, its officers, officials, employees, agents, and volunteers.

DEDUCTIBLES AND SELF-INSURED RETENTIONS
Service Provider shall be responsible for pay ment of any deductibles contained in any insurance policy(ies) required herein and Service Provider shall also be responsible for payment of any self-insured retentions. Any self-insured retentions must be declared on the Certificate of Insurance, and approved by, the City’s Risk Manager or designee. At the option of the City’s Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such self-insured retentions as respects City, its officers, officials, employees, agents, and volunteers; or (ii) Service Provider shall provide a fi nancial guarantee, sati sfactory to City’s Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for the payment of any deductibles or self-insured retentions.

OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to City, except ten (10) days for nonpayment of premium. Service Provider is also responsible for providing wri tten notice to the City under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Service Provider shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for Cit y, Service Provider shall provide a new certificate, and applicable endors ements, evidencing renewal of such 

















policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.
(ii) The Commercial General and Autom obile Liability insurance policies shall be written on an occurrence form.
(iii) The Commercial General and Autom obile Liability insurance policies shall be endorsed to name City, its officers , officials, agents, employees, and volunteers as an additional insured. Service Provider shall establish additional insured status for the Cit y and for all ongoing and completed operations under the Commercial General policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20

37. (iv) The Commercial General and Automob ile Liability insurance shall contain, or be endorsed to contain, that the Service Provider s’ insurance shall be primary to and require no contributi on from the City. The Commercial General policy is required to include primary and non-contributory coverage in favor of the City for both the ongoing and completed operations coverage.

These coverages shall contain no special limitations on the scope of protection afforded to City, its office rs, officials, employees, agents, and volunteers. If Service Provider mainta ins higher limits of liability than the minimums shown above, City requires and shall be entitled to coverage for the higher limits of liability maintained by Service Provider. (v) Should any of these policies provi de that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.
(vi) For any claims related to this Agreement, Service Provider’s insurance coverage shall be primary insurance with respect to the City, its officers, officials, agents, , and volunteers. Any insurance or self-insurance maintained by the City, its officers , officials, agents, employees, and volunteers shall be excess of the Service Provider’s insurance and shall not contribute with it.
(vii) The Commercial General Liability, Automobile Liability and Workers’ Compensation insurance policies shall contain, or be endorsed to contain, a waiver of subrogation as to City, its officers, officials, agents, employees, and volunteers.

PROVIDING OF DOCUMENTS - Service Provider shall furnish City with all certificate(s) and applicable endorsements effecting coverage required herein. All certificates and applicable endorsements are to be recei ved and approved by the City’s Risk Manager or designee prior to City’s execution of the Agreement and before work commences. All non-ISO endorsements amending po licy coverage shall be executed by a licensed and authorized agent or broker. Upon request of City, Service Provider 

















shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All s ubcontractors working under the direction of Service Provider shall also be required to provide all documents noted herein.

SUBCONTRACTORS - If Service Provider subcontracts any or all of the services to be performed under this Agreement, Service Provider shall require, at the discretion of the City Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance doc uments for the subcontractor must be reviewed and preapproved by City Risk Manager or designee. If no Si de Agreement is required, Service Provider will be solely responsible for ens uring that its subcontractor maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry.


















EXHIBIT C

DISCLOSURE OF CONFLICT OF INTEREST
Annual Maintenance Service Agreement Automatic Passenger Counter System

YES* NO
1 Are you currently in litigation with the City of Fresno or any of its agents?

2 Do you represent any firm, organization, or person who is in litigation with the City of Fresno?

3 Do you currently represent or perform work for any clients who do business with the City of Fresno?

4 Are you or any of your principals, managers, or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno?

5 Are you or any of your principals, managers, or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service?

6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project?

* If the answer to any question is yes, please explain in full below.

Explanation:

Signature

Date

Name

Company

Address

Additional page(s) attached.

City, State, Zip



















EXHIBIT D

FTA Terms and Conditions
Service Agreement between City of Fresno
and DILAX Systems US Inc.

Annual Maintenance Service Agreement Automatic Passenger Counter System

This contract/ agreement is subject to a financia l assistance contract between the City of Fresno and the Federal Transit Administration, which requi res that this contract /agreement contain the following clauses:

NO GOVERNMENT OBLIGATION TO THIRD PARTIES

(1) The City and contractor/vendor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liab ilities to the purchaser, contractor, or any other party (whether or not a par ty to that contract) pertaining to any matter resulting from the underlying contract.

(2) The contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that th e clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.

PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS (1) The contractor acknowledges t hat the provisions of the Progr am Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. 3801 et seq. and U.S. DOT regul ations, “Program Fraud Civil Remedies, “49 CFR Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the contractor further ackno wledges that if it makes, or causes to be made, a false, fictitious, or fraudul ent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the contractor to the extent the Federal Government deems appropriate. (2) The contractor also acknowledges that if it make s, or causes to be made, a false, fictitious, or fraudulent claim, statement, submi ssion, or certification to th e Federal Government under a contract connected with a project that is financ ed in whole or in part with Federal assistance originally awarded by FTA under th e 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. § 5323(l) on the contractor, to the extent the Federal Government deems appropriate.
(3) The contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 

















ACCESS TO RECORDS AND REPORTS

(1) Record Retention. The Contractor will retain, and will require its subcontractors of all tiers to retain, complete and readily accessible records related in whole or in part to the contract, including, but not limited to, data, documents, reports, statistics, sub-agree ments, leases, subcontracts, arrangements, other third party agreements of any type, and supporting materials related to those records.

(2) Retention Period. The Contractor agrees to co mply with the record re tention requirements in accordance with 2 C.F.R. § 200.333. The Contractor shall maintain all books, records, accounts and reports required under this Cont ract for a period of at not less than three (3) years after the date of termination or expiration of this Contract, except in the event of lit igation or settlement of claims arising from the performanc e of this Contract, in which ca se records shall be maintained until the disposition of all such litigation, appeals, claims or exceptions related thereto.

(3) Access to Records. The Contractor agrees to provide sufficient access to FTA and its contractors to inspect and audit records and information related to performance of this contract as reasonably may be required.

(4) Access to the Sites of Performance. The Cont ractor agrees to permit FTA and its contractors access to the sites of performance under this contract as reasonably may be required.

FEDERAL CHANGES

(1) Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed direct ly or by reference in the Master Agreement between Purchaser and FTA, as they may be amended or promulgated from time to time during the term of this contrac t. Contractor's failure to so co mply shall constitute a material breach of this contract.

TERMINATION

(1) Termination for Convenience: The City of Fresno may terminate this contract, in whole or in part, at any time by written notice to the contractor. The contractor shall be paid its costs, including contract close out costs, and profit on work performed up to the time of termination. The contractor shall promptly submit its termi nation claim to be paid by contra ctor. If the contractor has any property in its possession belonging to the City of Fresno, the contractor will account for the same, and dispose of it in the manner the City of Fresno directs.

(2) Termination for Default: If the contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is fo r services, the contractor fails to perform in the manner called for in the contract or if the contractor fails to comply with any other provisions of the contract, the City of Fresno may terminate this c ontract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract. 

















(3) If it is later determined by the City of Fres no that the contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of, or are beyond the control of the contractor, the City of Fresno, after setting up a new delivery or performance schedule, may allow the contractor to continue work , or treat the termination as a termination for convenience.

CIVIL RIGHTS

The City is an Equal Opportunity Employer. As such, the City agrees to comply with all applicable Federal civil rights laws and im plementing regulations. Apart fr om inconsistent requirements imposed by Federal laws or regulations, the City agrees to comply with the requirements of 49 U.S.C. § 5323(h) (3) by not using any Federal assistance awarded by FTA to support procurements using exclusionary or discriminatory specifications.

Under this Agreement, the Contractor shall at all times comply with the following requirements and shall include these requirements in each subcontract entered into as part thereof.

(1) Nondiscrimination – In accordance with Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminat e against any employee or applicant for employment because of race, color, religion, national orig in, sex, disability, or age. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue.
(2) Equal Employment Opportunity – The following equal employ ment opportunity requirements apply to the underlying contract:
(a) Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Feder al transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with a ll applicable equal em ployment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Empl oyment Opportunity, Departme nt of Labor," 41 C.F.R. chapter 60, and Executive Order No. 11246, "E qual Employment Opportunity in Federal Employment," September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that am ends or supersedes it, referenced in 42 U.S.C. § 2000e note. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, or sex (including sexual orientation and gender identity). Such action shall include, but not be limited to, the fo llowing: employment, promotion, demotion or trans fer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, includi ng apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
(b) Age - In accordance with the Age Discrimination in Employ ment Act, 29 U.S.C. §§ 621- 634, U.S. Equal Employment Opportunity Commission (U.S . EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S. He alth and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, a nd Federal transit law at 49 U.S.C. § 5332, the Contractor 

















agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contract or agrees to comply with any implementing requirements FTA may issue.
(c) Disabilities - In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S. C. §4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.
(3) The contractor also agrees to include these requirements in each subcontract financed whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties.

DISADVANTAGED BUSINESS ENTERPRISE (DBE)

The contractor, subrecipie nt or subcontractor shall not discrimi nate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 C.F.R. part 26 in the award and administration of DO T-assisted contracts.

Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:

(1) Withholding monthly progress payments;

(2) Assessing sanctions;

(3) Liquidated damages; and/or

(4) Disqualifying the contractor from future bidding as non-responsible. 49 C.F.R. § 26.13(b).

INCORPORATION OF FTA 4220.1F TERMS

(1) The preceding provisions include, in part, ce rtain Standard Terms and Conditions required by DOT, whether or not expressly se t forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1F , dated November 1, 2008, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA- mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The contractor shall not perf orm any act, fail to perform any act, or refuse to comply with any City of Fresno request, which would cause the City of Fresno to be in violation of the FTA terms and conditions.

(2) Flow Down – The incorporation of FTA terms has unlimited flow down.

SUSPENSION AND DEBARMENT

The Contractor shall comply and facilitat e compliance with U.S. DOT regulations, 

















“Nonprocurement Suspension and Debarment,” 2 C.F.R. part 1200, which adopts and supplements the U.S. Office of Management and Budget (U.S. OMB) “Guidelines to Agencies on Government Wide Debarment and Suspension (Non procurement),” 2 C.F.R. part 180. These provisions apply to each contract at any tier of $25,000 or more, and to each contract at any tier for a federally required audit (irrespective of the contract amount), and to each contract at any tier that must be approved by an FTA official irres pective of the contract amount. As such, the Contractor shall verify that its principals, affiliates, and subcontractors are eligible to participate in this federally funded contract and are not presently declared by any Federal department or agency to be:

a) Debarred from participation in any federally assisted Award; b) Suspended from participation in any federally assisted Award; c) Proposed for debarment from participation in any federally assisted Award; d) Declared ineligible to participate in any federally assisted Award; e) Voluntarily excluded from participation in any federally assisted Award; or f) Disqualified from participation in ay federally assisted Award.

By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:

The certification in this clause is a material repres entation of fact relied upon by the CITY. If it is later determined by the CITY that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to the CITY, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. part 180, subpart C, as supplemented by 2 C.F.R. part 1200, while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.

RESOLUTION OF DISPUTES, BREACHES, OR OTHER LITIGATION
(1) The validity of this Agreement and of any of its terms and provisions, as well as the rights and duties of the parties, shall be governed by the laws of the State of California. In the event of litigation between t he two parties, proper venue shall be laid in a court of competent jurisdiction in the County of Fresno, State of California. (2) Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of (Recipient)’s 

















(3) Maintenance Manager. This decision shall be final and conclusive unless with ten (10) days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the Maintenance Manager. In connection with any such appeal, the Co ntractor shall be afforded an opportunity to be heard and to offer evidenc e in support of its position. The decision of the Maintenance Manager shall be binding upon the contractor and the Contractor shall abide by the decision.
(4) Pending final resolution of a dispute in hereunder, the Contractor shall proceed diligently with the performance of this Agreement and in accordance with the City’s decision.

LOBBYING
The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been 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 any Federal 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 Feder al grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federa l contract, grant, l oan, or cooperative agreement.
(2) If any funds other than Federal appropria ted funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with th is Federal contract , grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure of Lobbying Activities," in accordance with its instructions.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code.

Any person who fails to file the required certific ation shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

The prospective participant also agrees by subm itting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $10 0,000 and that all such subrecipients shall certify and disclose accordingly.

The certificate titled Non Lobbying Certification must be completed and returned with your bid. This certificate is labeled as “Exhibit E” of this agreement

CLEAN AIR

(1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees 

















that the Purchaser will, in turn, report each viol ation as required to assure notification to FTA and the appropriate EPA Regional Office.

(2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

CLEAN WATER

(1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, r eport each violation as required to assure notification to FTA and the appropriate EPA Regional Office.

(2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA.

FLY AMERICA

Fly America Requirements:

(1) Definitions. As used in this clause- “International air transportation” means transportation by air between a place in the United States and a place outside the United States or between two places both of which are outside the United States. “United States” means the 50 States, the Distric t of Columbia, and outlying area s. “U.S.-flag air carrier” means an air carrier holding a certificate under 49 U.S.C. Chapter 411.

(2) When Federal funds are us ed to fund travel, Section 5 of the International Air Transportation Fair Competitiv e Practices Act of 1974 (49 U.S.C. 40118) (Fly America Act) requires contractors, re cipients, and others use U.S. -flag air carriers for U.S.

Government-financed international air transpo rtation of personnel (and their personal effects) or property, to the extent that service by those carriers is available. It requires the Comptroller General of the Un ited States, in the absence of satisfactory proof of the necessity for foreign-flag ai r transportation, to disallow expenditures from funds, appropriated or otherwise es tablished for the account of the United States, for international air transportation secured aboard a foreign-flag air carrier if a U.S.-flag air carrier is available to provide such services.

(3) If available, the contractor, in performing work under this contract, shall use U.S.-flag carriers for international air transportation of personnel (and their personal effects) or property.

(4) In the event that the cont ractor selects a carrier other than a U.S.-flag air carrier for international air transportation, the contra ctor shall include a statement on vouchers involving such transportation essentially as follows:



















Statement of Unavailability of U.S.-Flag Air Carriers

International air transportation of persons (and their personal effects) or property by U.S.-flag air carrier was not available or it was necessary to use foreign-flag air carrier service for the following reasons. See FAR § 47.403.

Stated
Reason(s):__________________________________________________________ ___________________________________________________________________ ___________________________________________________________________

(5) The contractor shall include the substance of this clause, including this paragraph, in each subcontract or purchase under this cont ract that may involve international air transportation.

ENERGY CONSERVATION

(1) The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

CONFORMANCE WITH ITS NATIONAL ARCHITECTURE

(1) Contractor shall conform, to the ext ent applicable, to the National Intelligent Transportation Standards architecture as required by SAFETEA-LU Section 5307(c), 23 U.S.C. Section 512 and as amended by MAP-21 23 U.S.C. § 517(d), note and follow the provisions of FTA Notice, “FTA National Architecture Policy on Transit Projects,” 66 Fed.

Reg.1455 et seq., January 8, 2001, and any other implementing directives FTA may issue at a later date, except to the extent FTA determines otherwise in writing.

ADA ACCESS

(1) In accordance with secti on 504 of the Rehabilit ation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U. S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

BUY AMERICA

(1) The contractor agrees to comply with 49 U.S.C. 5323(j) and 49 C.F.R. part 661, which provide that Federal funds may not be obligated unless all steel, iron, and manufactured 

















products used in FTA funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subj ect to a general waiver. General waivers are listed in 49 C.F.R. § 661.7. Separate requirements for rolling stock are set out at 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. § 661.11.

(2) A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification with all bids on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as nonresponsive. This requirement does not apply to lower tier subcontractors.

The certificate titled Buy America Certification must be completed and returned with your bid. This certificate is noted as Exhibit F.

SAFE OPERATION OF MOTOR VEHICLES

(1) Seat Belt Use - The Contractor is encouraged to adopt and promote on-the-job seat belt use policies and programs for its empl oyees and other personnel that operate company-owned vehicles, company-rented vehi cles, or personally operated vehicles.

The terms “company-owned” and “company-leased” refer to vehicles owned or leased either by the Contractor or City.

(2) Distracted Driver - The Contractor agrees to adopt and enforce workplace safety policies to decrease crashes caused by distract ed drivers, including policies to ban text messaging while using an electronic device supplied by an employer, and driving a vehicle the driver owns or rents, a vehicle Contactor owns, leases, or rents, or a privately- owned vehicle when on official business in connection with the work performed under this agreement.

PROMPT PAYMENT

(1) The Prime Contractor shall pay any Subcontractor for work that has been satisfactorily performed no later than thirty (30) days from the date of the Prime Contractor’s receipt of each payment made by the City of Fresno. Additionally, within thirty (30) days of satisfactory completion of all work required of the Subcontractor, the Prime Contractor shall release any retainage payments withheld to the Subcontractor.

NOTICE OF LEGAL MATTERS AFFECTING THE FEDERAL GOVERNMENT

(1) The Contractor agrees that if a current or prospective legal matter that may affect the Federal Government emerges, th e Contractor shall promptly notify the City of the legal matter in accordance with 2 C.F.R. §§ 180.220 and 1200.220.

(2) The types of legal matters that require notification includ e, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason.



















(3) Matters that may affect the Federal Government includ e, but are not limited to, the Federal Government’s interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements.

(4) Additional Notice to U.S. DOT Inspector General. The contractor must promptly notify the City and U.S. DOT Inspector General in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the City is lo cated, if the contractor has knowledge of potential fraud, waste, or abuse occurring on a Project receiving assistance from FTA.

The notification provision appli es if a person has or may have submitted a false claim under the False Claims Act, 31 U.S.C. § 3729, et seq., or has or may have committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bid rigging, misappropriation or embezzlement, br ibery, gratuity, or similar misconduct involving federal assistance. This responsibili ty occurs whether the Project is subject to this Agreement or another agreement betw een the City and FTA, or an agreement involving a principal, officer, employee, agent, or Third-Party Participant of the City. It also applies to subcontractors at any tier. Knowledge, as used in this paragraph, includes, but is not limited to, knowledge of a criminal or civil investigation by a Federal, state, or local law enforcement or other investigative agency, a criminal indictment or civil complaint, or probable cause that could support a criminal indictment, or any other credible information in the possession of the contractor. In th is paragraph, “promptly” means to refer information without delay and without change. This notification provision applies to all divisions of the Recipient, including divisions tasked with law enforcement or investigatory functions.

(5) The Contractor further agrees to include the above clause in each subcontract, at every tier, financed in whole or in part with Federal assistance provided by the FTA.

PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO

SURVEILLANCE SERVICES OR EQUIPMENT
The Contractor agrees to comply with 2 CF R 200.216 and Public Law 115-232, Section 889, and may not 1) procure or obt ain; 2) extend or renew a co ntract to procure; or 3) enter into a contract (or ex tend or renew a contract) to procure or obtain equipment, services, or systems that uses covered tele communications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system for this federally funded agreement. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
a) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hi kvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities). 

















b) Telecommunications or video surveillance services provided by such entities or using such equipment.

c) Telecommunications or video surveill ance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably bel ieves to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.



















EXHIBIT E

VENDOR’S NAME: ________________

NONLOBBYING CERTIFICATION

LOBBY RESTRICTIONS

Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100,000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been 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 connect ion 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 agree ment, 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 influencing or attempting to influence 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.

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 c ooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code.

Any person who fails to file the required certif ication shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

__________________________ Signature of Contractor's Authorized Official __________________________ Name and Title of Contractor's Authorized Official __________________________ Date



















EXHIBIT F

VENDOR’S NAME: _________________

DEBARMENT AND SUSPENSION CERTIFICATION
Service Agreement between City of Fresno
and DILAX Systems US Inc.

Annual Maintenance Service Agreement Automatic Passenger Counter System

Contractor and all subcontract ors shall meet debarment, suspension, ineligibility, and voluntary exclusion requirements pursuant to Executive Order 12549 of these Specifications. A list of excluded parties may be found at the following website:
https://www.sam.gov/SAM/pages/public/searchRecords/search.jsf.

Contractor/Vendor shall return with its Proposal/Contract this form.

Note: Providing false information may result in criminal prosecution or administrative sanctions.

The above certification is part of the Proposal. Signing this Proposal on the signature portion thereof shall also constitute signature of this Certification.

Date _____________________________________________________________ Signature _________________________________________________________ Company Name ____________________________________________________ Title _____________________________________________________________



















EXHIBIT G
Service Agreement between City of Fresno
and DILAX Systems US Inc.

Annual Maintenance Service Agreement Automatic Passenger Counter System

VENDOR'S NAME _______________________________

BUY AMERICA CERTIFICATION
49 C.F.R. § 661.6, for the Procurement of Steel, Iron, or Manufactured Products

A bidder or offeror must submit the appropriate Buy America certification (below) with all bids or offers on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a comp leted Buy America cert ification must be rejected as nonresponsive.

Certificate of Compliance with 49 U.S.C. 5323(j)(1)
The bidder or offeror hereby certifies that it will comply with the requirements of 49 U.S.C. 5323(j)(1), and the applicable regulations in 49 C.F.R. part 661.

Date
Signature
Company Name
Name
Title

Certificate of Non-Compliance with 49 U.S.C. 5323(j)(1) The bidder or offeror hereby certifies that it cannot comply with th e requirements of 49 U.S.C. 5323(j), but it may qua lify for an exception to the requirement pursuant to 49 U.S.C. 5323(j)(2), as amended, and the applicable regulations in 49 C.F.R. § 661.7.

Date ___________________________________________________ Signature _______________________________________________ Company Name
Name
Title