WASHINGTON STATE TRANSIT BUS COOPERATIVE
STATE COOPERATIVE PURCHASING SCHEDULE
MASTER CONTRACT
NO. 06719-01
TRANSIT BUSES: HEAVY DUTY
30 FT DIESEL, 35 FT DIESEL, 40 FT DIESEL 35 FT HYBRID, 40 FT HYBRID, 30 FT CNG, 35 FT, CNG, 40 FT CNG, 35 FT ELECTRIC, 40 FT ELECTRIC CATEGORIES
For Use by Washington State Transit Bus Cooperative Participants
By and Between
STATE OF WASHINGTON
DEPARTMENT OF ENTERPRISE SERVICES
and
GILLIG LLC
Dated April 1, 2021
MASTER CONTRACT NO. 06719-01
PAGE 1
WASHINGTON STATE TRANSIT BUS COOPERATIVE
STATE COOPERATIVE PURCHASING SCHEDULE
MASTER CONTRACT
NO. 06719
TRANSIT BUS – HEAVY DUTY
30 FT DIESEL, 35 FT DIESEL, 40 FT DIESEL 35 FT HYBRID, 40 FT HYBRID, 30 FT CNG, 35 FT, CNG, 40 FT CNG, 35 FT ELECTRIC, 40 FT ELECTRIC CATEGORIES
This Master Contract (“Master Contr act”) is made and entered into by and between the State of Washington acting by and through the Department of Enterprise Services, a Washington State governmental agency ( “Enterprise Services”) and Gillig LLC , a California company (“Contractor”) and is dated and effective as of April 1, 2021.
RECITALS
A. Whereas, p ursuant to Legislative direction codified in RCW chapter 39.26, Enterprise Services, on behalf of the State of Washington, is authorized to develop, solicit, and establish master contracts for goods and/or services for general use by Washington state agencies and certain other entities (eligible Participants).
B. Whereas, p ursuant to RCW 39.26.060, Enterprise Services may develop, solicit, and establish cooperative purchasing agreement s for procurement of any goods or services with one or more states, state agencies, local governments, local government agencies, federal agencies, or tribes located in the state, in accordance with an agreement entered into between the participants.
C. Whereas, pursuant to Se ction 3019 of the FAST Act , the State of Washington acting by and through Enterprise Services, may enter into a cooperative procurement contract with one or more vendors if the vendors agree to provide an option to purchase rolling stock and related equip ment to such State government a nd any other participant and such State government acts throughout the term of the contract as the lead procurement agency.
D. The State of Washington, acting by and through Enterprise Services is a member of and the lead procurement for the Washington State Transit Bus Cooperative. The Washington State Transit Bus Cooperative is a cooperative purchasing agreement for eligible participants to procure transit buses through a competitively solicited and awarded Cooperative Master Contract.
E. Whereas, o n behalf of the State of Washington, Enterprise Services, as part of a competitive governmental procurement, issued a Competitive Solicitation No. 06719-01 dated March 4, 2020 regarding Heavy Duty Transit Buses
.
F. Whereas, Enterprise Services evaluated all responses to the Competitive Solicitation and identified Contractor as an apparent successful bidder.
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G. Whereas, Enterprise Services has determined that entering into this Master Contract will meet the identified needs and be in the best interest of the State of Washington and the Washington State Transit Bus Cooperative.
H. Whereas, the purpose of this Master Contract is to enable e ligible Participants to purchase Transit Buses as set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:
1. TERM.
The term of this Master Contract is twenty -four (24) months, commencing April 1, 20 21 and ending March 31 , 2023; Provided, however, that Enterprise Services at is sole discretion may extend the term for three (3) subsequent twelve (12) month extensions if Contractor is not in default; and provided further, that in no event shall such term be extended if Contractor cannot meet the required certifications of this Contract. The maximum contract term is sixty (60) months, ending March 31, 2026.
2. ELIGIBLE PARTICIPANTS. This Master Contract may be utilized by any of the following types of entities (“Participants”):
2.1. WASHINGTON STATE AGENCIES. Al l Washington state agencies, departments, offices, divisions, boards, and commissions.
2.2. WASHINGTON STATE INSTITUTIONS OF HIGHER EDUCATION (COLLEGES). Any the following institutions of higher education in Washington:
State universities – i.e., University of Washington & Washington State University; Regional universities – i.e., Central Washington University, Eastern Washington University, & Western Washington University
Evergreen State College;
Community colleges; and
Technical colleges.
2.3. MCUA PARTIES. Any of the following types of entities that have executed a Master Contract Usage Agreement with Enterprise Services:
Political subdivisions (e.g., counties, cities, school districts, public utility districts) in the State of Washington;
Federal governmental agencies or entities;
Public-benefit nonprofit corporations (i.e., § 501(c)(3) nonprofit corporations that receive federal, state, or local funding); and
Federally-recognized Indian Tribes located in the State of Washington.
2.4. TRANSIT BUS COOPERATIVE PARTIES. Any authorized entity that has executed a Washington State Transit Bus Cooperative Purchasing Agreement with Enterprise Services. The following types of entities are anticipated to execute a Washington State Transit Bus Cooperative Purchasing Agreement:
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State agencies, local governments, local government agencies, or political subdivisions (e.g., counties, cities, school districts, public utility districts, ports) of any state or territory of the United States;
Federal governmental agencies or entities located in any state or territory of the United States; and
Federally-recognized Indian Tribes located in any state or territory of the United States
3. SCOPE – INCLUDED GOODS AND PRICE.
3.1. CONTRACT SCOPE. Pursuant to this Master Contract, Contractor is authorized to sell only those Transit Buses within the scope of their authorized goods meeting the requirements set forth in Exhibit A – Included Transit Buses for the prices set forth in Exhibit B – Prices. Contractor shall not represent to any Participant under t his Master Contract that Contractor has contractual authority to sell any Transit Buses beyond those meeting the requirements set forth in Exhibit A – Included Transit Buses.
3.2. STATE’S ABILITY TO MODIFY SCOPE OF MASTER CONTRACT. Subject to mutual agreement between the parties, Enterprise Services reserves t he right to modify the goods included in this Master Contract; Provided, however, that any such modification shall be effective only upon thirty (30) days advance written notice; and Provided further, that any such modification must be within the scope of this Master Contract. Enterprise Services may, at any time, without notice to Contractor by written order designated or indicated to be a change order, make changes within the general scope of the contract to adjust the quantities of Transit Buses purchased under this Master Contract.
3.3. P
ARTICIPANT CHANGE ORDERS.
(a) Participants may, at any time, by written order designated or indicated to be a c hange order, make changes in their Purchase Order within the gener al scope of th is Master Contract, including changes : (1) In the specifications; (2) In the method or manner of performance of the work; (3) In the price sheet to include additional options within the scope of the contract; (4) In the delivery performance o f the work ; or ( 5) In additional requirements for compliance with state or federal law.
(b) Any other written or oral order (which includes direction, instruction, interpretation, or determination) from the Participant that causes a change shall be treated as a change order under this clause; provided, that Contractor gives the Participant written notice stating (1) the date, circumstances, and source of the order and (2) that Contractor regards the order as a change order.
(c) Except as provided in this clause, no order, statement, or conduct of the Participant shall be treated as a change under this clause or entitle Contractor to an equitable adjustment. (d) If any change under this clause causes an increase or decrease in Contractor’s cost of, or the time required for, the performance of any part of the work under this Master Contract, whether or not changed by any such order, the Participant will make an equitable adjustment and modify the Purchase Order in writing. However, except for an adjustment based on defe ctive specifications, no adjustment for any change under this clause shall be made for any costs incurred more than twenty (20) days before Contractor gives written notice as required. In the case of defective specifications for which the Participant is re sponsible, the equitable adjustment shall include any increased cost
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reasonably incurred by the Contractor in attempting to comply with the defective specifications.
(e) Contractor will assist Participant in obtaining all of the requested cost details as may be required for FTA assisted purchases. Failure to respond or provide needed details may be grounds for the Participant to cancel the purchase without penalty. (f) The Contractor must assert its right to an adjustment under this clause within 30 days after
1. receipt of a written change order under paragraph (a) of this clause or
2. the furnishing of a written notice under paragraph (b) of this clause, by submitting to the Contracting Officer a written statement describing the general nature and amount of proposal, unless this period is extended by the Participant. The statement of proposal for adjustment may be included in the notice under paragraph (b) above.
(g) No proposal by the Contractor for an equitable adjustment shall be allowed if asserted after final payment under this Master Contract.
(h) This clause does not supersede FTA Circular C 4220.1F.
3.4. ECONOMIC ADJUSTMENT. Beginning twelve (12) months after the effective date of this Master Contract and for every annual anniversary thereafter, the prices set forth in Exhibit B shall be adjusted, based upon the percent changes (whether up or down) in the United States Department of Labor, Bureau of Labor and Statistics (BLS) indices described below, for the most recent year. The Index is the Producer Price Index for Truck and Bus Bodies, Series No. WPU 1413, published by the United States Department of Labor, Bureau of Labor Statistics, or if such Index is no longer in use, then such replacement that is most comparable to the Index as may be designated by the Bureau of Labor Statistics, or as agreed by the parties. Economic adjustment will lag one (1) calendar quarter past the Master Contract commencement date to allow for publication of BLS data. All calculations for the index shall be based upon the latest version of data published as of April 1 each year. Prices shall be adjusted on June 1. If an index is recoded, that is the replacement is a direct substitute according to the BLS, this Master Contract will instead use the recode. If an index becomes unavailable , Enterprise Services shall substitute a proxy index. If there is not a direct substitute, the next higher aggregate index available will be used. The economic adjustment shall be calculated as follows:
New Price = Old Price x (Current Period Index/Base Period Index).
3.5. P
RICE CEILING. Although Contractor may offer lower prices to Participants, during the term of this Master Contract, Contractor guarantees to provide the Heavy Duty Transit Buses at no greater than the prices set forth in Exhibit B – Prices for Heavy Duty Transit Buses (subject to economic adjustment as set forth herein).
3.6. GOODS AND SERVICES ADDITION. Contractor may offer new goods and services within the scope of the authorized goods set forth in Exhibit A – Included Transit Buses to Participants to implement new technology solutions or meet specific Participant requirements. Goods and services added to purchase orders under the Master Contract must be commercially available at the time they are added and fall within the original scope of the Master Contract.
3.7. PRICING OF GOODS AND SERVICE ADDITIONS. Prices for additional Transit Bus goods and services performed under this Master Contract follow cost reimbursement rules under 4220.1F Ch VI,
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2.c(1). Cost-reimbursement provides for payment of Contractor’s allowable incurred costs, to the extent agreed to in the Contractor’s agreement with the Participant. Participants are required to include FAR Part 31 cost principles in their cost reimbursement contracts for the purpose of determining allowable co sts under the contract. Contract shall comply with Participant s’ requests in determining reasonable prices, including but not limited to providing a breakdown of relevant incurred costs or individual component pricing to Participant upon request. A dispute on the reimbursement costs will follow the dispute procedures of this Master Contract.
3.8. MASTER CONTRACT INFORMATION. Enterprise Services shall maintain and provide information regarding this Master Contract, including scope and pricing, to eligible Participants.
4. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Master Contract and at the time any order is placed pursuant to this Master Contract. If, at the time of any such order, Contractor cannot make such representations and warranties, Contractor shall not process any orders and shall, within three (3) business days notify Enterprise Services, in writing, of such breach.
4.1. Q
UALIFIED TO DO BUSINESS. Contractor represents and warrants that it is in good standing and qualified to do business in the S tate of Washington, that it is registered with the Washington State Department of Revenue and the Washington Secretary of State, that it possesses and shall keep current all required licenses and/or approvals, and that it is current, in full compliance, and has paid all applicable taxes owed to the State of Washington. Contractor represents and warrants that it is or will be qualified to do business in other applicable states for purchases under this Master Contract with each of the Washington State Transit Bus Cooperative member states, including but not limited to Alaska, Idaho, Oregon, Colorado, Montana, and Nevada.
4.2. S
USPENSION & DEBARMENT. Contractor represents and warrants that neither it nor its principals or affiliates presently are debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any governmental contract by any governmental department or agency within the United States.
4.3. QUALITY OF GOODS OR SERVICES. Contractor represents and warrants that any Transit Bus sold pursuant to this Master Contract shall be merchantable, shall conform to this Master Contract and Participant’s Purchase Order, shall be fit and safe for the intended purposes , shall be free from defects in materials and workmanship , and shall be produced and delivered in full compliance with applicable law. Contractor further represents and warrants it has clear title to the goods and that the same shall be delivered free of liens and encumbrances and that the same do not infringe any third party patent. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or e quity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs. Whenever under the Master Contract or Purchase Order it is provided that Contractor shall furnish materials or manufactured components or shall do work for which no detailed specifications are set forth, the w ork performed shall be in full conformity and harmony with the intent to secure the best standards of manufacture in the work as a whole or in part. No advantage shall be taken by Contractor in the omission of any part or detail which goes to make the Transit Buses complete and ready for service, even though such part or detail is not mentioned in the specifications or in Contractor's approved design.
4.4. E
XECUTIVE ORDER 18-03 – WORKERS’ RIGHTS (MANDATORY INDIVIDUAL ARBITRATION). Contractor represents and warrants, as previously certified in Contractor’s bid submission, that Contractor
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does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.
4.5. OREGON REVISED STATUTE 279A.112. Contractor represents and warrants, as previously certified in Contractor’s bid submission, that their firm has a written p olicy and practice preventing sexual harassment, sexual assault and discrimination against employees who are members of a protected class.
4.6. EMISSIONS INFORMATION. Contractor represents and warrants, as previously certified in Contractor’s bid submission , th at their firm has a written policy and practice to assess and provide accurate emission information on products to Participants.
4.7. SUSTAINABILITY POLICY. Contractor represents and warrants, as previously certified in Contractor’s bid submission , that their firm has a written policy and practice, detailing own sustainability policies and programs in place and to provide services in line with the principles established therein.
4.8. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that it complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to Participants’ employees.
4.9. WASHINGTON’S ELECTRONIC BUSINESS SOLUTION (WEBS). Contractor represents and warrants that it is registered in Washington’s Electronic Business Solution (WEBS), Washington’s contract registration system and that, all of its information therein is current and accurate and that throughout the term of this Master Contract, Contractor shall maintain an accurate profile in WEBS.
4.10. STATEWIDE PAYEE DESK. Contractor represents and warrants that it is registered with the Statewide Payee Desk, which registration is a condition to payment.
4.11. COOPERATIVE MASTER CONTRACT PROMOTION; ADVERTISING AND ENDORSEMENT. Contractor represents and warrants that it shall use commercially reasonable efforts both to promote and market the use of this Master Contract with eligible Participants and to ensure that those entities that utilize this Master Contract are eligible Participant s. Contractor understands and acknowledges that neither Enterprise Services nor Participants are endorsing Contractor’s goods and/or services or suggesting that such goods and/or se rvices are the best or only solution to their needs.
Accordingly, Contractor represents and warrants that it shall make no reference to Enterprise Services, any Participant, or the State of Washington in any promotional material without the prior written consent of Enterprise Services.
4.12. MASTER CONTRACT TRANSITION. Contractor represents and warrants that, in the event this Master Contract or a similar contract resulting from the Cooperative , is transitioned to another contractor (e.g., Master Contract expiration or termination), Contractor shall use commercially reasonable efforts to assist Enterprise Services for a period of sixty (60) days to effectuate a smooth transition to another contractor to minimize disruption of service and/or costs to the State of Washington.
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4.13. VEHICLE TITLE & REGISTRATION. Contractor represents and warrants that u pon payment in full, Contractor shall convey to Participant all necessary paperwork , including a “manufacturer’s statement of origin” (MSO) and applicable state title application to register the Transit Bus with the Participant’s applicable state licensing authority at the time of delivery.
4.14. WAGE VIOLATIONS. Contractor represents and warrants that, during the term of this Master Contract and the three (3) year period immediately preceding the award of the Master Contract, it is not determined, by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgment entered by a court of limited or general jurisdiction, to be in willful violation of any provision of Washington state wage laws set forth in RCW chapters 49.46, 49.48, or 49.52.
4.15. PAY EQUITY. Contractor represents and warrants that, among its workers, similarly employed individuals are compensated as equals. For purposes of this provision, employees are similarly employed if the individuals work for the same employer, the performance of the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar workin g conditions. Job titles alone are not determinative of whether employees are similarly employed.
Contractor may allow differentials in compensation for its workers based in good faith on any of the following: a seniority system; a merit system; a syste m that measures earnings by quantity or quality of production; a bona fide job -related factor or factors; or a bona fide regional difference in compensation levels. A bona fide job-related factor or factors may include, but not be limited to, education, training, or experience that is: consistent with business necessity; not based on or derived from a gender-based differential; and accounts for the entire differential. A bona fide regional difference in compensation level must be consistent with business necessity; not based on or derived from a gender-based differential; and account for the entire differential.
Notwithstanding any provision to the contrary, upon breach of warranty and Contractor’s failure to provide satisfactory evidence of compliance wi thin thirty (30) days, Enterprise Services may suspend or terminate this Master Contract and any Participant hereunder similarly may suspend or terminate its use of the Master Contract and/or any agreement entered into pursuant to this Master Contract.
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5. USING THE MASTER CONTRACT – PURCHASES.
5.1. ORDERING REQUIREMENTS. Participants shall order Transit Buses from this Master Contract, consistent with the terms hereof and by using any ordering mechanism agreeable both to Contractor and Participant but, at a minimu m, including the use of a purchase order. When practicable, Contractor and Participant also shall use telephone orders, email orders, web-based orders, and similar procurement methods (collectively “Purchase Order”). All order documents must reference th e Master Contract number. Consistent with Participant’s procurement authority, Participant may propose and negotiate additional terms with the applicable Contractor to meet Participant’s needs, subject to agreement with the applicable Contractor. Under no circumstances will Participant’s agreements change or modify the contract obligations of this Master Contract. The terms of this Master Contract shall apply to any Purchase Order and, in the event of any conflict, the terms of this Master Contract shall p revail. Notwithstanding any provision to the contrary, in no event shall any ‘click -agreement,’ software or web -based application terms and conditions, or other agreement modify the terms and conditions of this Master Contract.
5.2. APPROVAL OF PURCHASES. Ente rprise Services and, if the Participant is using FTA funds, the Participant’s respective authorization authority for use of those FTA funds shall approve the Participant’s initial Purchase Order . Enterprise Services shall review the Purchase Order and approve that the purchase is within the Scope of the Master Contract. The Participant’s respective authorization authority for use of those FTA funds will approve the purchase according to their own policies and procedures. Participant and Contractor shall provide timely information as requested by Enterprise Services for the approval process.
5.3. CONTRACTOR COOPERATIVE USE APPROVAL. Pursuant to RCW 39.26.060, the intent of this Contract is to allow for cooperative procurement to the maximum extent possible. Accor dingly, any authorized entity that has executed a Washington State Transit Bus Cooperative Purchasing Agreement with Enterprise Services may place orders under this Master C ontract. Participation in the cooperative is voluntary. If agreed to by Contractor, this Contract may be used by any participant in the cooperative to procure the Transit Buses. Contractor has the right to refuse initial orders by cooperative participants on a capacity basis , if the Contractor cannot fulfill the complete order based on delivery deadlines. Orders under this Contract will be fulfilled on a first come, first serve basis of the initial order date . If Contractor rejects an order for capacity, Enterprise Services may request additional information from the Contract regarding Contractor’s capacity to fulfill orders.
5.4. FTA PRE-AWARD AND POST-DELIVERY CERTIFICATIONS. Contractor shall take all reasonable steps assist Participants in completing all required pre -award and post -delivery certifications required by federal or state law or policy for purchases under this Master Contract. Contractor shall provide all requested information to complete the certifications in a reasonable time to ensure certifications are completed in a timely manner.
5.5. D
ELIVERY REQUIREMENTS. Contractor must ensure that delivery of Transit Buses will be made as required by this Master Contract, the Purchase Order used by Participants, or as otherwise mutually agreed in writing between the Participant and Contractor. The following apply to all deliveries:
(a) Contractor shall make all deliveries to the applicable delivery location specified in the Purchase Order by the delivery date. The delivery date must be within 18 months of the initial order date, as stated in the Purchaser Order or agreement between Participant and
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Contractor; provided however that t he Participant and Contractor may amend the delivery date by mutual agreement. Deliveries shall occur during Participant ’s normal work hours and within the time period mutually agreed in writing between Participant and Contractor at the time of order placement.
(b) Contractor shall deliver all buses with a full tank of fuel and clean inside and out. For any bus not meeting this requirement, Contractor will be assessed $300. When Transit Buses are delivered, certificates or releases signed by Participant simply acknowledge receipt of the Transit Buses and do not constitute acceptance by the Participant of the condition of the Transit B uses, or its conformance with the terms of the Master Contract or Participant’s Purchase Order. Acceptance by Participant occurs subsequent to final inspection when Participant provides Contractor with a written Notice of Acceptance. (c) Contractor shall ship or deliver all goods and/or services purchased pursuant to this Master Contract, freight ch arges prepaid by Contractor, FOB Participant’s specified destination with all transportation and handling charges included. Contractor shall bear all risk of loss, damage, or destruction of the goods and/or services ordered hereunder that occurs prior to delivery, except loss or damage attributable to Participant ’s negligence. Contractor shall use a qualified and experienced common or contract carrier who is properly licensed and insured. Contractor shall make all arrangements for shipment.
(d) All packing lis ts, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this Master Contract shall be identified by the Master Contract number set forth on the cover of this Master Contract and the applicable Participant’s Purchase Order number. Packing lists shall be included with each shipment and clearly identify all contents and any backorders.
5.6. P
ROTOTYPE BUSES. If requested by Participant, Contractor shall produce one prototype bus for each type of bus with respect to the Purchase Order for inspection and testing at the Participant’s facilities. The prototype bus will demonstrate that the bus fully meets all requirements of the Purchase Order . Contract or shall produce and deliver the prototy pe bus to Participant for inspection and testing a minimum of one -hundred twenty (120) days prior to initiation of any production activities for the remaining buses unless otherwise authorized in writing by Participant. The cost of transporting the prototy pe bus to and from the Participant’s facilities shall be at the expense of Contractor. Contractor shall schedule the prototype review with the Participant when a vehicle has been completed with all equipment and furnishings installed, but early enough so d esign changes resulting from the review will not delay production or cause scrapping of production material.
In the event of nonconformity Participant shall, to the extent practicable , notify Contractor of said nonconformity. No later than seven (7) days after the end of the fourteen (14) day test, Participant shall issue a written report to the Contractor that advises the Contractor of any noncompliance issues and/or any proposed modifications or changes required on the remaining vehicles. Any failure by Participant to detect any defects or omissions in this testing period will in no way relieve Contractor from fully complying with the specifications of the Master Contract and Participant Order. All prototype buses shall be brought up to the final product ion bus configuration in all respects at no additional cost to Participant , except as may be agreed by change orders.
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5.7. NOTIFICATION OF DELAY. Contractor shall provide prompt notice to Participant and Enterprise Services for any delay in the manufacturing process that will affect the expected delivery date.
Contractor will provide notice of the delay within fourteen (14) days of discovery of the potential delay. This notice of delay must include a reasonable expectation of when the delay will be resolved, the reason for the delay, whether the delay will cause the delivery to exceed the delivery date, and any other applicable information regarding the delay. Participant shall provide Contractor with notice of acceptance of the reasonable delay or notice that the delay is determined to be non-excusable within seven (7) days of receipt of the notice of delay.
If there is a dispute between Contractor and Participant as to whether the delay is reasonable, Contractor may appeal Participant’s decision to Enterprise S ervices within seven (7) days of receipt of the notice that the delay is non-excusable. Enterprise Services will review the provided information and make a final determination as to whether the delay is reasonable or non -excusable. If a dispute remains aft er this procedure, parties shall follow the dispute resolution process of Section 16. Contractor shall promptly comply with any request from Enterprise Services or Participant for additional information in making the delay determination. A request for more information from Enterprise Services or Participant tolls the time for required response until the time that Contractor responds to the request for more information. Reasonable delay is a delay for which the Contractor is not responsible. A reasonable delay must arise from unforeseeable causes, be beyond the control of Contractor, and be without the fault of the Contractor. A reasonable delay will extend the d elivery date by the agreed upon length of the delay.
Non-excusable delay is a delay for which Con tractor is wholly or partially responsible. A non-excusable delay is a delay that arises from a foreseeable cause, is within the control of Contractor, or is due to the fault of Contractor. A non-excusable delay will not extend the agreed upon delivery date.
5.8. D
ELAY DAMAGES. Participant will be damaged by any failure on the part of Contractor to deliver the buses within the time specified in delivery date. The amount of damages for delay of beyond the delivery d ate is difficult if not impossible to ascertain. The amount of such damages Contractor shall pay to Participant is fixed at the amount of $ 250.00 per day for each bus not delivered in substantially good condition as inspected by the Participant. Participant may elect to deduct the amount of the damages from the amount due to Contractor under the Purchase Order or may notify Contractor of the amount due based on the delay. If Participant requires Contractor to pay the delay damages, Contractor shall pay the entire amount within thirty (30) days after receipt of a written demand by Participant. The payment of damages will be in lieu of any damages for any loss of profit, loss of revenue, loss of use, or for any other direct, indirect, special or consequential losses or damages of any kind that may be suffered by Participant arising at any time from the failure of Contractor to fulfill the delivery obligations in a timely manner.
5.9. I
NSPECTION AND ACCEPTANCE OF TRANSIT BUSES. Transit Buses purchased under this Master Contract are subject to Participant ’s reason able inspection, testing, and approval at Participant ’s destination for a period of fourteen (14) days from the date that the Transit Buses are received at the place of delivery. Participant reserves the right to reject and refuse acceptance of Transit Buses that are not in accordance with this Master Contract and the Participant’s Purchase Order during this inspection period. Representatives of Contractor may witness acceptance inspections
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and testing if so requested by Contractor. Participant retains the right to complete as thorough an inspection as it deems necessary to determine if each bus is in conformance with Master Contract and Purchase Orders requirements for configuration and performance parameters.
Contractor shall coordinate and manage Contractor’s post-delivery inspection process and notify the Participant of scheduling and availability of buses ready for pre -acceptance inspection.
Acceptance by the Participant occurs when Participant provides Contractor with a written Notice of Acceptance, which will be subsequent to final inspection by responsible assigned employees of the Participant . All acceptances are subject to the warranty requirements of this Master Contract.
5.10. INSPECTION DEFECTS. If there are any apparent defects in the goods and/or ser vices within the inspection period , Participant will promptly notify Contractor. At Participant ’s option, and without limiting any other rights, Participant may:
Require Contractor to repair or replace, at Contractor’s expense, any or all of the damaged goods; or
Require Contractor to refund the price of any or all of the damaged goods; or Participant may note any damage to the goods on the receiving report , decline acceptance, and deduct the cost of rejected goods from final payment.
Payment for any goods under such Purchase Order shall not be deemed acceptance of the goods.
If Participant discovers defects during the inspection process, the requirement for timely delivery under 6.2(a) will continue to run until Contractor resolves the defects and provid es Participant with the applicable goods free of defects. The period for the delivery date for the goods will be tolled for the length of time Participant was in the inspection period until the time that Participant provided notice of defect to Contractor.
5.11. POST-INSPECTION REPAIRS BY CONTRACTOR. In the event of non-acceptance of the bus, Contractor must begin Work within five (5) working days after receiving notification from Participant of failure of acceptance tests. Participant shall make the bus available to complete repairs timely with the Contractor repair schedule. If Contractor fails or refuses to begin the repairs within five (5) days, then the repair work may be done by Participant ’s personnel with reimbursement by Contractor. Contractor shall provide, at its own expense, all spare parts, tools and space required to complete the repairs. At Participant’s option, Contractor may be required to remove the bus from Participant’s property while repairs are being made. If the bus is removed from Participant’s property, then repair procedures must be diligently pursued by Contractor’s representatives, and Contractor shall assume risk of loss while the bus is under its control.
5.12. C
ONTRACTOR SERVICE AND PARTS SUPPORT. For each Participant Order, Contractor shall supply Participant with a completed Exhibit D - Contractor Service and Parts Support Data with contact information on the representatives responsible for assisting Participant, as well as the location of the nearest distribution center, which shall furnish a complete supply of parts and components for the repair and maintenance of the buses to be supplied. Contractor shall also submit its policy on transportation charges for parts other than those covered by warranty.
5.13. P
ARTS AVAILABILITY GUARANTEE. Contractor guarantees to provide the spare parts, software, and all equipment necessary to maintain and repair the buses supplied under this Master Contract for a period of at least twelve (12) years after the date of acceptance. Parts will be interchangeable with the original equipment and will be manufactured in accordance with the quality assurance
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provisions of this Master Contract. Prices shall not exceed the Contractor’s then -current published catalog prices.
Where the parts ordered by the Participant are not received within two (2) working days of the agreed-upon time and date and a bus procured under this Master Contract is out of service due to the lack of said ordered parts, then the Contractor shall provide the Participant, within eight (8) hours of the Participant ’s verbal or written request, the original suppliers’ and/or manufacturers’ parts numbers, company names, addresses, telephone numbers and contact persons’ names for all of the specific parts not received by the Participant.
In the event Contractor fails to honor this parts guarantee or parts ordered by the Participant are not received within thirty (30) days of the agreed -upon delivery date, then Contractor shall provide to Participant, within seven (7) days of the Agency’s verbal or written request, the design and manufacturing documentation for those parts manufactured by t he Contractor and the original suppliers’ and/or manufacturers’ parts numbers, company names, addresses, telephone numbers and contact persons’ names for all of the specific parts not received by the Participant.
Contractor’s design and manufacturing documentation provided to the Participant shall be for its sole use in regard to the buses procured under this Master Contract and for no other purpose.
5.14. TERMINATION FOR WITHDRAWAL OF FUNDING. If any Participant’s expected or actual funding for purchases under this Master Contract are withdrawn, reduced, or limited in any way prior to the payment for the last bus accepted, Participant may, upon written notice to Contractor, terminate their Purchase Order for Transit Buses not yet accepted. If the Purchase Order is terminated as provided in this subsection: (1) Participant will be liable only for payment in accordance with the terms of this Contract for work performed satisfactorily up to the date of termination and materials on order that cannot be canceled; and (2) Contractor shall be released from any obligation to provide additional buses as are affected by the termination.
5.15. F
ACILITY INSPECTIONS. Contractor shall provide right of access to its facilities to Enterprise Services, any Enterprise Services agents, Participant, any of Participants agents, or to any other authorized agent or official of the state of Washington or the federal government, at all reasonable times, in order to monitor and evaluate performance, compliance, and/or quality assurance under this Contract.
5.16. O
N SITE REQUIREMENTS. While on Participant ’s premises, Contractor, its agents, employees, or subcontractors shall comply, in all respects, with Participant’s physical, fire, access, safety, or other security requirements.
6. INVOICING & PAYMENT.
6.1. CONTRACTOR INVOICE. Contractor shall submit to Participant’s designated invoicing contact properly itemized invoices. Such invoices shall itemize the following:
(a) Master Contract No. 06719
(b) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative)
(c) Contractor’s Federal Tax Identification Number
(d) Date(s) of delivery
(e) Invoice amount; and
(f) Payment terms, including any available prompt payment discounts.
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Contractor’s invoices for payment shall reflect accurate Master Contract prices. Invoices will not be processed for payment until receipt of a complete invoice as specified herein.
6.2. PAYMENT. Payment is the sole responsibility of, and will be made by, the Participant. Payment is due within thirty (30) days of invoice. If Participant fails to make timely payment(s), Contractor may invoice Participant in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment will not be considered late if a check or warrant is mailed within the time specified. Contractor provides a prompt payment discount of 0.10% for payments within 20 days of receipt of the invoice. This discount will only be provided for Participant payments within the stated time.
6.3. MILESTONE PAYMENTS. Participant and Contractor may condition payment on the achievement of various agreed upon milestones for the Transit Buses . Milestone payments will be mutually agreed upon by P articipant and Contractor in regard to timing of milestone, acceptance of milestone, and amounts for milestone payments. Payment for milestones will follow the procedure for invoice payment.
6.4. OVERPAYMENTS. Contractor promptly shall refund to Participant the full amount of any erroneous payment or overpayment. Such refunds shall occur within thirty (30) days of written notice to Contractor; Provided, however, that Participant shall have the right to elect to have either direct payments or written credit mem os issued. If Contractor fails to make timely payment(s) or issuance of such credit memos, Participant may impose a one percent ( 1%) per month on the amount overdue thirty (30) days after notice to the Contractor.
6.5. NO ADVANCE PAYMENT. No advance payments shall be made for any goods or services furnished by Contractor pursuant to this Master Contract.
6.6. NO ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or impose any additional charges including, but not limited to, charge s for shipping, handling, or payment processing.
6.7. TAXES/FEES. Contractor promptly shall pay all applicable taxes on its operations and activities pertaining to this Master Contract. Failure to do so shall constitute breach of this Master Contract. Unless otherwise agreed, Participant shall pay applicable sales tax imposed by the tax jurisdictions in which delivery occurs on purchased goods and/or services. Contractor, however, shall not make any charge for federal excise taxes and Participant agrees to furnish Contractor with an exemption certificate where appropriate.
7. C
ONTRACT MANAGEMENT.
7.1. CONTRACT ADMINISTRATION & NOTICES. Except for legal notices, the parties hereby designate the following contract administrators as the respective single points of cont act for purposes of this Master Contract. Enterprise Services’ contract administrator shall provide Master Contract oversight. Contractor’s contract administrator shall be Contractor’s principal contact for business activities under this Master Contract. The parties may change contractor administrators by written notice as set forth below.
Any notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:
MASTER CONTRACT NO. 06719-01
PAGE 14
Enterprise Services Contractor
Attn: David Mgebroff
Washington Dept. of Enterprise Services
PO Box 41411
Olympia, WA 98504-1411
Tel: (360) 407-8049
Email: [email protected]
Attn: Lee Petersen, Regional Sales Manager
and Maribel Gonzalez-Becerra, Bid & Contract
Specialist
GILLIG LLC
451 Discovery Drive
Livermore, CA 94551
Tel: (800) 785-1500
Email: [email protected]
Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon transmission to the designated email address of said addressee.
7.2. C
ONTRACTOR CUSTOMER SERVICE REPRESENTATIVE. Contractor shall designate a customer service representative (and inform Enterprise Services of the same) who shall be responsible for addressing Participant issues pertaining to this Master Contract.
7.3. LEGAL NOTICES. A ny legal notices required or desired shall be in writing and delivered by U.S. certified mail, return receipt requested, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:
Enterprise Services Contractor
Attn: Legal Services Manager
Washington Dept. of Enterprise Services
PO Box 41411
Olympia, WA 98504-1411
Email: [email protected]
Attn: William F. Fay, Jr.
Vice President Sales
GILLIG LLC
451 Discovery Drive
Livermore, CA 94551
Email: [email protected]
Notices shall be deemed effective upon the earlier of receipt when delivered, or, if mailed, upon return receipt, or, if emailed, upon transmission to the designated email address of said addressee.
8. C
ONTRACTOR SALES REPORTING; VENDOR MANAGEMENT FEE; & CONTRACTOR REPORTS.
8.1. MASTER CONTRACT SALES REPORTING. Contractor shall report total Master Contract sales quarterly to Enterprise Services, as set forth below.
(a) Master Contract Sales Reporting System. Contractor shall rep ort quarterly Master Contract sales in Enterprise Services’ Master Contract Sales Reporting System.
Enterprise Services will provide Contractor with a login password and a vendor number. The password and vendor number will be provided to the Sales Report ing Representative(s) listed on Contractor’s Bidder Profile. (b) Data. Each sales report must identify every authorized Participant by name as it is known to Enterprise Services and its total combined sales amount invoiced during the reporting period (i.e., s ales of an entire agency or political subdivision, not its individual subsections). The “Miscellaneous” option may be used only with prior approval by Enterprise Services. Upon request, Contractor shall provide contact information for all authorized Part icipants specified herein during the term of the
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Master Contract. If there are no Master Contract sales during the reporting period, Contractor must report zero sales.
(c) Due dates for Master Contract Sales Reporting. Quarterly Master Contract Sales Reports must be submitted electronically by the following deadlines for all sales invoiced during the applicable calendar quarter:
FOR CALENDAR QUARTER ENDING MASTER CONTRACT
SALES REPORT DUE
March 31: April 30
June 30: July 31
September 30: October 31
December 31: January 31
8.2. VENDOR MANAGEMENT FEE. Contractor shall pay to Enterprise Services a vendor management fee (“VMF”) of 0.15 percent on the purchase price for all Master Contract sales (the purchase price is the total invoice price less applicable sales tax).
(a) The sum owed by Contractor to Enterprise Services as a result of the VMF is calculated as follows:
Amount owed to Enterprise Services = Total Master Contract sales invoiced (not including sales tax) x .00150.
(b) The VMF must be rolled into Contractor’s current pricing. The VMF must not be shown as a separate line item on an y invoice unless specifically requested and approved by Enterprise Services.
(c) Enterprise Services will invoice Contractor quarterly based on Master Contract sales reported by Contractor. Contractors are not to remit payment until they receive an invoice from Enterprise Services . Contractor’s VMF payment to Enterprise Services must reference this Master Contract number, work request number (if applicable), the year and quarter for whi ch the VMF is being remitted, and the Contractor’s name as set forth in this Master Contract, if not already included on the face of the check. (d) Failure to accurately report total net sales, to submit a timely usage report, or remit timely payment of the VM F, may be cause for Master Contract suspension or termination or the exercise of other remedies provided by law . Without limiting any other available remedies, the Parties agree that Contractor’s failure to remit to Enterprise Services timely payment of the VMF shall obligate Contractor to pay to Enterprise Services, to offset the administrative and transaction costs incurred by the State to identify , process, and collect such sum , the sum of $200.00 or twenty -five percent (25%) of the outstanding amount, whichever is greater, or the maximum allowed by law, if less.
(e) Enterprise Services reserves the right, upon thirty (30) days advance written notice, to increase, reduce, or eliminate the VMF for subsequent purchases , and reserves the right to re negotiate Master Contract pricing with Contractor when any subsequent adjustment of the VMF might justify a change in pricing.
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8.3. ANNUAL MASTER CONTRACT SALES REPORT. Contractor shall provide to Enterprise Services a detailed annual Master Contract sales report. Such report shall include, at a minimum: Product description, part number or other Product identifier, per unit quantities sold, and Master Contract price. This report must be provided in an electronic format that can be read by MS Excel.
9. RECORDS RETENTION & AUDITS.
9.1. RECORDS RETENTION. Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Contract and orders placed by Participants under it to the extent and in such detail as shall adequately reflect performance and administration of payments and fees.
Contractor shall retain such records for a period of six (6) years following expiration or termination of this Master Contract or final payment for any order placed by a Participant against this Master Contract, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.
9.2. AUDIT. Enterprise Services reserves the ri ght to audit, or have a designated third party audit, applicable records to ensure that Contractor has properly invoiced Participant s and that Contractor has paid all applicable contract management fees. Accordingly, Contractor shall permit Enterprise Ser vices, any Participant, and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor’s books, documents, papers and records directly pertinent to this Master Contract or orders placed by a Participant under it for the purpose of making audits, examinations, excerpts, and transcriptions.
This right shall survive for a period of six (6) years following expiration or termination of this Master Contract or final payment for any order placed by a Pa rticipant against this Master Contract, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.
9.3. O
VERPAYMENT OF PURCHASES OR UNDERPAYMENT OF FEES. Without limiting any other remedy available to any Participant, Contractor shall (a) reimburse Participants for any overpayments inconsistent with the terms of this Master Contract or orders, at a rate of 125% of such overpayments, found as a result of the examination of the Contractor’s records; and (b) reimburse Enterprise Services for any underpayment of fees, at a rate of 125% of such fees found as a result of the examination of the Contractor’s records (e.g., if Contractor underpays the Vendor Management Fee by $500, Contractor would be required to pay to Enterprise Services $500 x 1.25 = $625).
10. INSURANCE.
10.1. REQUIRED INSURANCE. During the Term of this Master Contract, Contractor, at its expense, sh all maintain in full force and effect the insurance coverages set forth in Exhibit C – Insurance Requirements. All costs for insurance, including any payments of deductible amounts, shall be considered incidental to and included in the prices for goods/services and no additional payment shall be made.
10.2. WORKERS COMPENSATION. Contractor shall comply with applicable workers compensation statutes and regulations (e.g., RCW Title 51, Industrial Insurance). If Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, Enterprise Services may terminate this Master Contract. This provision does not waive any of the Washington State Department of Labor and Industries (L&I) ri ghts to collect
MASTER CONTRACT NO. 06719-01
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from Contractor. In addition, Contractor waives its immunity under RCW Title 51 to the extent it is required to indemnify, defend, and hold harmless the State of Washington and its agencies, officials, agents, or employees.
11. WARRANTY.
11.1. CONTRACTOR WARRANTY. Warranties in this document are in addition to any statutory remedies or warranties imposed on Contractor. Consistent with this requirement, Contractor warrants and guarantees to Participant each complete Transit Bus and specific subsystems and components as follows.
Contractor warrants the Transit Buses are of good material and workmanship and agrees to promptly replace any part or parts, at no cost to the Participant, which by reason of defective materials or workmanship fail under normal use, free of negligence or accident during the applicable warranty period. Contractor warranties include the replacement of parts and services associated with the replacement and repair, including but not limited to any diagnostic, refurbishment, shipping, or travel costs.
Performance requirements based on design criteria will not be deemed a warranty item.
Contractor shall insure in its procurement arrangements that the warranty requirements of this Master Contract are enforceable through and against the Contractor's suppliers, vendors, material men, and subcontractors. Any inconsistency or difference between the warranties extended to Participant s by Contractor and those extended to Contractor by its suppliers, vendors, material men, and subcontractors, a re at the risk and expense of Contractor. Such inconsistency or difference will not excuse Contractor's full compliance with its obligations under this Contract.
11.2. W
ARRANTY INFORMATION. Upon Participant’s request, Contractor promptly shall provide complete copies of all written warranties or guarantees and documentation of any other arrangement relating to such warranties or guarantees extended by Contractor's suppliers, sub -suppliers, vendors, material men, and subcontractors covering parts, components, and systems utilized in the bus. Contractor shall ensure that such suppliers, sub -suppliers, vendors, material men, and subcontractors satisfactorily perform warranty related work when requested to do so by Participant.
11.3. S
YSTEM WARRANTIES. The following systems are warranted to be free from defects and related defects for the years and mileage listed in the table below, whichever comes first. Each warranty is based on regular operation of the bus under the operating conditions prevailing in Participant’s locale.
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Warranty Description Years/Mileage
Complete Bus Complete bus, propulsion system,
components, major subsystems, and
body and chassis structure
2 years, 100,000 miles;
Class 1 or 2 Failures: 12
years, 500,000 miles
Body And Chassis
Structure
Body, body structure, structural elements
of the suspension and engine cradle
3 years, 150,000 miles
Body and Chassis
Corrosion Failure or
Fatigue Failure
Primary load-carrying members of the
bus structure, including structural
elements of the suspension
Class 1 or 2 Failures: 12
years, 500,000 miles
Propulsion System
(Diesel, CNG, Hybrid)
engine, transmission or drive motors, and
generators (for hybrid technology) and
drive and non-drive axles
2 years, 100,000 miles
Propulsion System
(Electric)
traction motors, traction motor
controllers, transmission, drive motors,
drive and non-drive axles, and any other
propulsion system-related replacement
component
3 years, 100,000 miles
Energy Storage
System
traction battery, Battery Management
System, and any other ESS-related
replacement component
6 years, 300,000 miles
Emission Control
System
complete exhaust system, including
catalytic converter (if required), after
treatment device, components identified
as emission control devices
5 years, 100,000 miles
The ESS is warranted to remain within warrantable end of life during the warranty period. The ESS original specified energy storage capacity and warrantable end of life, as a percentage of the original specified energy capacity, must be clearly defined by the Contractor. Acceptable methods for measuring or obtaining ESS storage capacity with respect to its original specified capacity must be clearly identified by the manufacturer. The manufacturer will propose the test method, and certify the results are true and accurate. The test will be performed according to a documented test procedure. Participant may engage third-parties for capacity testing.
11.4. S
UBSYSTEMS WARRANTY. The Contractor warrants the following subsystems to be free from defects and related defects for at least two years or 100,000 miles, whichever comes first. Brake system: Foundation brake components, including advancing mechanisms, as supplied with the axles, excluding friction surfaces.
Destination signs: All destination sign equipment for the front, side and rear signs, power modules and operator control.
Heating, ventilating: Roof and/or rear main unit only, excluding floor heaters and front defroster.
AC unit and compressor: Roof and/or rear main unit only, excluding floor heaters and front defroster.
Door systems: Door operating actuators and linkages. ** Warranty of One Year/Unlimited Miles
Air compressor.
Air dryer. ** Warranty of One Year/Unlimited Miles
Wheelchair lift and ramp system: Lift and/or ramp parts and mechanical only.
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Starter.
Alternator: Alternator only. Does not include the drive system. Charge air cooler: Charge air cooler including core, tanks and including related surrounding framework and fittings.
Fire suppression: Fire suppression system including tank and extinguishing agent dispensing system.
Hydraulic systems: Including radiator fan drive and power steering as applicable. Propulsion cooling systems: Radiator including core, tanks and related framework, including surge tank. Transmission cooler.
Power electronics: DC/DC converters, inverters, if supplied Passenger seating excluding upholstery.
Fuel storage and delivery system.
Surveillance system including cameras and video recorders.
Contractor warrants the following subsystems to be free from defects and related defects for at least two years or 100,000 miles, whichever comes first:
Low voltage and high voltage electrical wiring and harnesses
11.5. S
ERIAL NUMBERS. Prior to final delivery of each bus, Contractor shall provide a complete electronic list of serialized units installed on e ach bus to facilitate warranty tracking. The list will include, but is not limited to the following:
Engine
Transmission or Traction Motor
Alternator
Starter
Destination/Luminator (Major
components)
Drive axle and non-drive axle(s)
DVR unit, supporting electronics
(Monitors)
Driver's seat
Battery equalizer
Radiator package
Exhaust emission components
A/C compressor and
condenser/evaporator unit
Power steering unit
Fuel cylinders (if applicable)
Air compressor
Wheelchair ramp (if applicable)
Contractor shall provide updated serial numbers resulting from warranty campaigns. The format of the list will be approved by Participant prior to delivery of the first production bus.
11.6. EXTENSION OF WARRANTY. If, during the warranty period, repairs or modifications on an y bus are made necessary by defective design, materials, or workmanship but are not completed due to lack of material or inability to provide the proper repair for thirty (30) calendar days, then the applicable warranty period shall be extended by the number of days equal to the delay period.
11.7. V
OIDING OF WARRANTY. The warranty will not apply to the failure of any part or component of the bus that directly results from misuse, negligence, accident, or repairs not conducted in accordance with the Contractor- provided maintenance manuals and with workmanship performed by adequately trained personnel in accordance with recognized standards of the industry. The warranty will be void if Participant fails to conduct normal inspections and scheduled preventive mainten ance procedures as recommended in the Contractor’s maintenance manuals and if that omission caused the part or component failure. Participant should maintain documentation, auditable by Contractor, verifying service activities in conformance with the Contractor’s maintenance manuals.
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11.8. EXCEPTIONS AND ADDITIONS TO WARRANTY. Warranties will not apply to the following items:
scheduled maintenance items
normal wear-out items, such as brake linings, filters, belts, and wiper blades items furnished by Participant
Should Participant require the use of a specific product and has rejected Contractor’s request for an alternate product, then the standard supplier warranty for that product will be the only warranty provided to Participant. This product will not be eligible under “Fleet Defects,” below.
11.9. PASS-THROUGH/SUPERIOR WARRANTY. If any vendor to the Contractor offers, at no additional cost, a warranty on a component that is longer or more comprehensive than the required warranties on this Contract, Contractor shall inform Participant of the additional warranty and pass it through to Participant at no additional cost.
Contractor shall state in writing that Participant’s warranty reimbursements will not be impacted.
Contractor also shall state in writing any exceptions and reimbursement including all costs incurred in transport of vehicles and/or components. At any time during the warranty period, Contractor may request approval from Participant to assign its warranty obligations to others, but only on a case-by-case basis approved in writing by Participant. Otherwise, Contractor shall be solely responsible for the administration of the warranty as specified. Warranty administration by others does not eliminate the warranty liability and responsibility of Contractor.
11.10. F
LEET DEFECTS. “Fleet Defect” means cumulative failures of twenty five (25%) percent of the same components in the same or similar application in a minimum fleet size of twelve (12) or more buses where such items are covered by warranty. A Fleet Defect applies only to the base warranty period in for Complete Bus, Propulsion System, and Subsystems Warranty. When a Fleet Defect is declared, the remaining warranty period on that item/component is suspended. The warranty period does not resume until the Fleet Defect is corrected.
For the purpose of Fleet Defects, each order shall be treated as a separate bus fleet. In addition, if there is a change in a major component within the order, the buses containing the new major component will become a separate bus fleet for the purposes of determining Fleet Defects.
Contractor shall correct a Fleet Defect under the warranty provisions defined in Section 13 Repair Procedure. After correcting the Fleet Defect, Participant and Contractor shall mutually agree to and Contractor shall promptly undertake and complete a work program reasonably designed to prevent the occurrence of the same Fleet Defect in all other buses and spare parts purchased under the order . Where the specific Fleet Defect is solely attributed to particular id entifiable parts, the work program will include redesign and/or replacement of only the defectively designed and/or manufactured parts. In all other cases, the work program will include inspection and/or correction of all the buses in the fleet via a mutually agreed-to arrangement. Contractor shall update, as necessary, technical support information (parts, service and operator’s manuals) due to changes resulting from warranty repairs. Participant may immediately declare a defect in design resulting in a safety hazard to be a Fleet Defect. Contractor shall be responsible to furnish, install and replace all defective units.
The Fleet Defect warranty provisions do not apply to Participant-supplied items, such as radios, fare collection equipment, communication systems, and tires. In addition, Fleet Defects do not apply to interior and exterior finishes, hoses, fittings, and fabric.
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12. REPAIR PROCEDURE.
12.1. REPAIR PERFORMANCE. Contractor is responsible for all warranty -covered repair work , including diagnostics of warranty covered parts. To the extent practicable, Participant will allow Contractor or its designated representative to perform repair work. At its discretion, Participant may perform such repair work if it determines it needs to do so based on transit servic e or other requirements. Contractor shall reimburse Participant for any warranty -covered repair work it performs.
12.2. REPAIRS BY THE CONTRACTOR. Participant shall notify Contractor’s designated representative within thirty (30) days if Participant detects a defect within the warranty periods defined in this Master Contract or the applicable Participant Order. Contractor or its designated representative shall, if requested, begin repair work on warranty -covered repairs within five (5) calendar days after receiving notification of a defect from Participant. Participant will make the bus available to complete repairs timely with the Contractor’s repair schedule.
Contractor shall provide at its own expense all spare parts, tools, and space required to complete repairs. At Participant’s option, Contractor may be required to remove the bus from Participant’s property while repairs are made. If the bus is removed from Participant’s property, then repair procedures must be diligently pursued by Contractor’s representative.
12.3. REPAIRS BY PARTICIPANT. If Participant performs the warranty-covered repairs, then it must correct or repair the defect and any related defects utilizing parts supplied by Contractor specifically for this repair. At its discretion, Participant may use Contractor-specified parts available from its own stock if deemed in its best interests. Parts supplied by Contractor may be remanufactured but must have the same form, fit and function, and warranty. The parts will be shipped prepaid to Participant from any source selected by Contractor within fourteen (14) days of receipt of the request for said parts and shall not be subject to a handling charge.
12.4. D
EFECTIVE COMPONENT RETURN. Contractor may request that parts covered by the warranty be returned to the manufacturing plant. Contractor will pay the freight costs for this action.
12.5. FAILURE ANALYSIS. Upon specific request of Participant, Contractor will provide a failure analysis of Fleet Defect or safety-related parts, or major components, removed from buses under the terms of the warranty that could affect fleet operation. Such reports will be delivered within 60 days of the receipt of failed parts.
12.6. REIMBURSEMENT FOR LABOR AND OTHER RELATED COSTS. Contractor shall reimburse Participant for repair labor. The amount is determined by Participant for a qualified mechanic at a straight time wage rate per hour, which includes fringe benefits and overhead adjusted for Participant’s most recently published rate in effect at the time the repair work is performed, plus the cost of towing the bus if such action was necessary and if the bus was in the normal service area. These wage and fringe benefit rates shall not exceed the rates in effect in Participant’s service garage at the time the defect correction is made.
12.7. REIMBURSEMENT FOR PARTS. Contractor shall reimburse Participant for defective parts and for parts that must be replaced to correct the defect. The reimbursement will be at the current price at the time of repair and include taxes where applicable, plus fifteen (15 ) percent handling costs.
Handling costs will not be paid if parts are supplied by Contractor and shipped to Participant.
12.8. R
EIMBURSEMENT REQUIREMENTS. Contractor shall respond to parts warranty claim s with an accept/reject decision including necessary failu re analysis no later than sixty (60) days after
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Participant submits the claim and defective part(s), when requested. Reimbursement for all accepted claims shall occur no later than sixty (60) days from the date of acceptance of a valid claim. Participant may dispute rejected claims or claims for which Contractor did not reimburse the full amount. Contractor and Participant will review disputed warranty claims during the following quarter to reach an equitable decision to permit the disputed claim to be resolved and closed. Contractor and Participant will review all claims at least once per quarter throughout the entire warranty period to ensure that open claims are being tracked and properly dispositioned.
12.9. WARRANTY AFTER REPLACEMENT/REPAIRS. If any component , unit, or subsystem is repaired, rebuilt , or replaced by Contractor or by Participant with the concurrence of Contractor, then the component, unit, or subsystem will have the unexpired warranty period of the original. Repairs will not be warranted if Cont ractor-provided or authorized parts are not used for the repair, unless Contractor has failed to respond within five days, in accordance with Section 13.2 Repairs by the Contractor.
If an item is declared to be a Fleet Defect, then the warranty stops with the declaration of the Fleet Defect. Once the Fleet Defect is corrected, the items shall have three (3) months or the remaining time and/or miles of the original warranty, whichever is greater. This remaining warranty period will begin on the repair/replacement date for corrected items on each bus if the repairs are completed by Contractor or on the date Contractor provides all parts to Participant if repairs are completed by Participant.
12.10. W
ARRANTY PROCESSING PROCEDURES. The following list represents inform ation required by Contractor from the Participant for processing warranty claims. One failure per bus per claim is allowed.
bus number and VIN
total vehicle life mileage at time of repair
date of failure/repair
acceptance/in-service date
Contractor part number and description
component serial number
description of failure
all costs associated with each failure/repair (invoices may be required for third -party costs):
o towing
o road calls
o labor
o materials
o parts
o handling
o troubleshooting time
The Participant’s forms will be accepted by Contractor if all of the above information is included.
Electronic submittal may be used if available between Contractor and Participant.
12.11. RETURN OF PARTS. When returning defective parts to Contractor, Participant will tag each part with the following:
bus number and VIN
claim number
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part number
serial number (if available)
12.12. TIMEFRAME. Each claim must be submitted no more than thirty (30) days from the date of failure and/or repair, whichever is later. All defective parts must be retu rned to the Contractor, when requested, no more than forty-five (45) days from the date of repair.
13. QUALITY ASSURANCE
13.1. QUALITY ASSURANCE ORGANIZATION ESTABLISHMENT. Contractor shall establish and maintain an effective in-plant quality assurance organization.
13.2. QUALITY CONTROL. The quality assurance organization shall exercise quality control over all phases of production, from initiation of design through manufacture and preparation for delivery. The organization shall also control the quality of supplied articles.
13.3. AUTHORITY AND RESPONSIBILITY. The quality assurance organization shall have the authority and responsibility for reliability, quality control, inspection planning, establishment of the quality control system, and acceptance/rejection of materials and manufactured articles in the production of the transit buses.
13.4. MINIMUM FUNCTIONS. The quality assurance organization shall include the following minimum functions:
Work instructions: The quality assurance organization shall verify inspection operation instructions to ascertain that the manufactured product meets all prescribed requirements. Records maintenance: The quality assurance organization shall maintain and use records and data essential to the effective operation of its program. These records and data shall be available for review by the resident inspectors. Inspection and test records for this procurement shall be available for a minimum of one year after inspections and tests are completed.
Corrective action: The quality assurance organization shall detect and promptly ensure correction of any conditions that may result in the production of defective transit buses.
These conditions may occur in designs, purchases, manufacture, tests or operations that culminate in defective supplies, services, facilities, technical data or standards.
13.5. B
ASIC STANDARDS AND FACILITIES. The following standards and facilities shall be basic in the quality assurance process:
Configuration control: Contractor shall maintain drawings, assembly procedures and other documentation that completely describe a qualified bus that meets all of the options and special requirements of each Purchase Order. The quality assurance organization shall verify that each transit bus is manufactured in accordance with these controlled drawings, procedures and documentation.
Measuring and testing facilities: Contractor shall provide and maintain the necessary gauges and other measuring and testing devices for use by the quality assurance organization to verify that the buses conform to all specifica tion requirements. These devices shall be calibrated at established periods against certified measurement standards that have known, valid relationships to national standards. Production tooling as media of inspection: When production jigs, fixtures, tooling masters, templates, patterns and other devices are used as media of inspection, they shall
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be proved for accuracy at formally established intervals and adjusted, replaced or repaired as required to maintain quality.
Equipment use by resident inspectors: Contractor’s gauges and other measuring and testing devices shall be made available for use by the resident inspectors to verify that the buses conform to all specification requirements. If necessary, the Contractor’s personnel shall be made available to operate the devices and to verify their condition and accuracy.
13.6. MAINTENANCE OF CONTROL. Contractor shall maintain quality control of purchases:
Supplier control: Contractor shall require each s upplier to maintain a quality control program for the services and supplies that it provides. C ontractor’s quality assurance organization shall inspect and test materials provided by s uppliers for conformance to specification requirements. Materials that have been inspected, tested and approved shall be identified as acceptable to the point of use in the manufacturing or assembly processes.
Controls shall be established to prevent inadvertent use of nonconforming materials. Purchasing data: Contractor shall verify that all applicable specification requirements are properly included or referenced in purchase orders of articles to be used on transit buses.
13.7. M
ANUFACTURING CONTROL. Contractor shall maintain quality control of production:
Controlled conditions: Contractor shall ensure that all basic production operations, as well as all other processing and fabricating, are performed under controlled conditions.
Establishment of these controlled conditions shall be based on the documented w ork instructions, adequate production equipment and special working environments if necessary.
Completed items: A system for final inspection and test of completed transit buses shall be provided by the quality assurance organization. It shall measure the overall quality of each completed bus.
Nonconforming materials: The quality assurance organization shall monitor the Contractor’s system for controlling nonconforming materials. The system shall include procedures for identification, segregation and disposition. Statistical techniques: Statistical analysis, tests and other quality control procedures may be used when appropriate in the quality assurance processes. Inspection status: A system shall be maintained by the quality assurance organization for identifying the inspection status of components and completed transit buses. Identification may include cards, tags or other normal quality control devices.
13.8. Inspection System. The quality assurance organization shall establish, maintain and periodically audit a fully documented inspection system. The system shall prescribe inspection and test of materials, Work in process and completed articles. A t a minimum, it shall include the following controls:
Inspection personnel: Sufficient trained inspectors shall be used to ensure that all materials, components and assemblies are inspected for conformance with the qualified bus design.
Inspection records: Acceptance, rework or rejection identification shall be attached to inspected articles. Articles that have been accepted as a result of approved materials review actions shall be identified. Articles that have been reworked to specified drawing
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configurations shall not require special identification. Articles rejected as unsuitable or scrap shall be plainly marked and controlled to prevent installation on the bus. Articles that become obsolete as a result of engineering changes or other actions shall be controlled to prevent unauthorized assembly or installation. Unusable articles shall be isolated and then scrapped. Discrepancies noted by the Contractor or resident inspectors during assembly shall be enter ed by the inspection personnel on a record that accompanies the major component, subassembly, assembly or bus from start of assembly through final inspection.
Actions shall be taken to correct discrepancies or deficiencies in the manufacturing processes, procedures or other conditions that cause articles to be in nonconformity with the requirements of the Contract specifications. The inspection personnel shall verify the corrective actions and mark the discrepancy record. If discrepancies cannot be corrected by replacing the nonconforming materials, then the Agency shall approve the modification, repair or method of correction to the extent that the Contract specifications are affected. Quality assurance audits: The quality assurance organization shall establish and maintain a quality control audit program. Records of this program shall be subject to review by the Agency.
14. C
LAIMS.
14.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. Contractor assumes sole responsibility and all risks of personal injury or property damage to itself and its employees, and agents in connection with its operations under this Master Contract. Neither Enterprise Services nor any Participant has made any representations regarding any factor affecting Contractor’s risks. Contractor shall pay for all damage to any Participant’s property resulting directly or indirectly from its acts or omissions under this Master Contract.
14.2. THIRD-PARTY CLAIMS; INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless Enterprise Services and any Participant and their employees and agents from and against all claims, demands, judgments, assessments, damages, penalties, fines, costs, liabilities or losses including, without limitation, sums paid in settlement of claims, attorneys’ fees, consultant fees, and expert fees (collectively “claims”) arising from any act or omission of Contractor or its successors, agents, and subcontractors under this Master Contract, except claims caused solely by Enterprise Services o r any Participant s’ negligence. Contractor shall take all steps needed to keep Participant ’s property free of liens arising from Contractor’s activities, and promptly obtain or bond the release of any such liens that may be filed.
15. D
ISPUTE RESOLUTION.
15.1. DISPUTE PROCEDURE. The parties shall cooperate to resolve any dispute pertaining to this Master Contract efficiently, as timely as practicable, and at the lowest possible level with authority to resolve such dispute. If, however, a dispute persists and cannot be resolved, it may be escalated within each organization. In such situation, upon notice by either party, each party, within five (5) business days shall reduce its description of the dispute to writing and deliver it to the other party. The receiving party then shall have three (3) business days to review and respond in writing. In the event that the parties cannot then agree on a resolution of the dispute, the parties shall schedule a conference between the respective senior manager of each organizat ion to attempt to resolve the dispute. In the event the parties cannot agree, either party may resort to court to resolve the dispute.
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15.2. PERFORMANCE DURING DISPUTE. Unless otherwise directed by Enterprise Services, Contractor shall continue performance under this Master Contract while matters in dispute are being resolved.
16. SUSPENSION & TERMINATION.
16.1. SUSPENSION & TERMINATION FOR DEFAULT. Enterprise Services may suspend Contractor’s operations under this Master Contract immediately by written cure notice of any default. In such case, the notice of suspension will state the time period in which cure is permitted and other appropriate conditions. Suspension shall continue until the default is remedied to Enterprise Services’ reasonable satisfaction; Provided, however, that, if after thirty (30) days from such a suspension notice, Contractor remains in default , Enterprise Services may terminate Contractor’s rights under this Master Contract. All of Contractor’s obligations to Enterprise Services and Participants survive termination of Contractor’s rights under this Master Contract, until such obligations have been fulfilled.
16.2. DEFAULT. Each of the following events shall constitute default of this Master Contract by Contractor:
(a) Contractor fails to perform or comply with any of the terms or conditions of this Master Contract including, but not limited to, Contractor’s obligation to pay vendor management fees when due;
(b) Contractor breaches any representation or warranty provided herein; or (c) Contractor enters into procee dings relating to bankruptcy, whether voluntary or involuntary.
16.3. REMEDIES FOR DEFAULT.
(a) Enterprise Services’ rights to suspend and terminate Contractor’s rights under this Master Contract are in addition to all other available remedies. (b) In the event of termination for default, Enterprise Services may exercise any remedy provided by law including, without limitation, the right to procure for all Participants replacement goods and/or services. In such event, Contractor shall be liable to Enterprise Services for damages as authorized by law including, but not limited to, any price difference between the Master Contract price and the replacement or cover price.
16.4. L
IMITATION ON DAMAGES. Notwithstanding any provision to the contrary, the parties agree that in no e vent shall any party or Participant be liable to the other for exemplary or punitive damages.
16.5. GOVERNMENTAL TERMINATION.
(a) Termination for Withdrawal of Authority. Enterprise Services may suspend or terminate this Master Contract if, during the term hereof , Enterprise Services’ procurement authority is withdrawn, reduced, or limited such that Enterprise Services, in its judgment, would lack authority to enter into this Master Contract; Provided, however, that such suspension or termination for withdrawal of authority shall only be effective upon twenty (20) days prior written notice; and Provided further, that such suspension or termination for withdrawal of authority shall not relieve any Participant from payment for goods and/or services already ordered as of the effective date of such notice. Except as stated in this provision, in the event
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of such suspension or termination for withdrawal of authority, neither Enterprise Services nor any Participant shall have any obligation or liability to Contractor. (b) TERMINATION FOR CHANGE OF AUTHORITY. Enterprise Services may suspend or terminate this Master Contract if, during the term hereof, federal procurement authority is withdrawn, reduced, or limited such that Enterprise Services, in its judgment, would lack authority to enter into this Master Contract as a State Cooperative Purchasing Schedule under applicable federal law; Provided, however, that such suspension or termination for withdrawal of authority shall only be effective upon twenty (20) days prior written notice; and Provided further, that such suspension or termination for withdrawal of authority shall not relieve any Participant from payment for goods and/or services already ordered as of the effective date of such notice. Except as stated in this prov ision, in the event of such suspension or termination for withdrawal of authority, neither Enterprise Services nor any Participant shall have any obligation or liability to Contractor.
(c) T
ERMINATION FOR PUBLIC CONVENIENCE. Enterprise Services, for public convenience, may terminate this Master Contract; Provided , however, that such termination for public convenience must, in Enterprise Services’ judgment, be in the best interest of the State of Washington ; and Provided further , that such termination for publ ic convenience shall only be effective upon sixty (60) days prior written notice; and Provided further, that such termination for public convenience shall not relieve any Participant from payment for goods and/or services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such termination for public convenience, neither Enterprise Services nor any Participant shall have any obligation or liability to Contractor.
16.6. TERMINATION PROCEDURE. Regardless of basis, in the event of suspension or termination (in full or in part), the parties shall cooperate to ensure an orderly and efficient suspension or termination.
Accordingly, Contractor shall deliver to Participants all goods and/or services that are comp lete (or with approval from Enterprise Services, substantially complete) and Participants shall inspect, accept, and pay for the same in accordance with this Master Contract and the applicable Purchase Order. Unless directed by Enterprise Services to the contrary, Contractor shall not process any orders after notice of suspension or termination inconsistent therewith.
17. FTA
ROLE IN DISPUTES, BREACHES, DEFAULTS, OR OTHER LITIGATION.
17.1. FTA INTEREST. The U.S. Federal Transit Administration (“ FTA”) has a vested i nterest in the settlement of any violation of federal law, regulation, or requirement, or any disagreement involving the a ward, this Master Contract, and any a mendments thereto including, but not limited to, a default, breach, major dispute, or litigation. Accordingly, FTA shall have the right to concur in such any settlement or compromise.
17.2. NOTIFICATION TO FTA. If a current or prospective legal matter that may affect the Federal Government emerges, Enterprise Services and Participant promptly shall notify the FTA Chief Counsel, or FTA Regional Counsel for the Region in which Enterprise Services and Participant are located.
1. The types of legal matters that require notification include, 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.
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2. Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the a ward, this Master Contract, and any a mendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements.
3. If Enterprise Services or Participant have credible evidence that a Principal, Official, Employee, Agent, or Third Party Participant of Enterprise Services or Participant, or other person has submitted a false claim under the False Claims Act, 31 U.S.C. § 3729 et seq., or has committed a criminal or civil violation of law pertaining to such matters as fraud, conflict of interest, bribery, gratuity, or similar misconduct involving federal assistance, Enterprise Services and Participant promptly shall notify the U.S. DOT Inspector General, in addition to the FTA Chief Counsel or Regional Counsel for the Region in which the E nterprise Services and Participant are located.
17.3. FEDERAL INTEREST IN RECOVERY. The Federal Government retains the right to a proportionate share of any proceeds recovered from any third party, based on the percent age of the federal share for this Master Contract.
18. GENERAL PROVISIONS.
18.1. TIME IS OF THE ESSENCE. Time is of the essence for each and every provision of this Master Contract.
18.2. COMPLIANCE WITH LAW. Contractor shall comply with all applicable law.
18.3. INTEGRATED AGREEMENT. This Master Contract constitutes the entire agreement and understanding of the parties with respect to the subject matter and supersedes all prior negotiations, representations, and understandings between them. There are no representations or understandings of any kind not set forth herein.
18.4. A
MENDMENT OR MODIFICATION. Except as set forth herein, this Master Contract may not be amended or modified except in writing and signed by a duly authorized representative of each party.
18.5. AUTHORITY. Each party to this Master Contract , and each indivi dual signing on behalf of each party, hereby represents and warrants to the other that it has full power and authority to enter into this Master Contract and that its execution, delivery, and performance of this Master Contract has been fully authorized and approved, and that no further approvals or consents are required to bind such party.
18.6. NO AGENCY. The parties agree that no agency, partnership, or joint venture of any kind shall be or is intended to be created by or under this Master Contract . Neither party is an agent of the other party nor authorized to obligate it.
18.7. ASSIGNMENT. Contractor may not assign its rights under this Master Contract without Enterprise Services’ prior written consent and Enterprise Services may consider any attempted assignment without such consent to be void; Provided, however, that, if Contractor provides written notice to Enterprise Services within thirty (30) days, Contractor may assign its rights under this Master Contract in full to any parent, subsidiary, or affiliate of Contractor that controls or is controlled by or under common control with Contractor, is merged or consolidated with Contractor, or purchases a majority or controlling interest in the ownership or assets of Contractor. Unless otherwise agreed, Contractor guarantees prompt performance of all obligations under this Master Contract notwithstanding any prior assignment of its rights.
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18.8. BINDING EFFECT; SUCCESSORS & ASSIGNS. This Master Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
18.9. PUBLIC INFORMATION. This Master Contract and all related documents are subject to public disclosure as required by Washington’s Public Records Act, RCW chapter 42.56 . The Purchase Order and all related documents are subject to the public disclosure requirements of the Participant’s jurisdiction.
18.10. ASSIGNMENT OF ANTITRUST RIGHTS REGARDING PURCHASED GOODS/SERVICES. Contractor irrevocably assigns to Enterprise Services, on behalf of the State of Washington, or any applicable Participant any claim for relief or cause of action which the Contractor now has or which may accrue to the Contractor in the future by reason of any violation of state or federal antitrust laws in connection with any Transit Buses provided in Washington for the purpose of carrying out the Contractor’s obligations under this Master Contract , including, at Enterprise Services ' option, the right to control any such litigation on such claim for relief or cause of action.
18.11. FEDERAL FUNDS. To th e extent that any Participant uses federal funds to purchase goods and/or services pursuant to this Master Contract, such Participant shall specify, with its order, any applicable requirement or certification that must be satisfied by Contractor at the time the order is placed or upon delivery.
18.12. SEVERABILITY. If any provision of this Master Contract is held to be invalid or unenforceable, such provision shall not affect or invalidate the remainder of this Master Contract, and to this end the provisions of this Master Contract are declared to be severable. If such invalidity becomes known or apparent to the parties, the parties agree to negotiate promptly in good faith in an attempt to amend such provision as nearly as possible to be consistent with the inte nt of this Master Contract.
18.13. WAIVER. Failure of either party to insist upon the strict performance of any of the terms and conditions hereof, or failure to exercise any rights or remedies provided herein or by law, or to notify the other party in the event of breach, shall not release the other party of any of its obligations under this Master Contract, nor shall any purported oral modification or rescission of this Master Contract by either party operate as a waiver of any of the terms hereof. No waiver by either party of any breach, default, or violation of any term, warranty, representation, contract, covenant, right, condition, or provision hereof shall constitute waiver of any subsequent breach, default, or violation of the same or other term, warranty , representation, contract, covenant, right, condition, or provision.
18.14. S
URVIVAL. All representations, warranties, covenants, agreements, and indemnities set forth in or otherwise made pursuant to this Master Contract shall survive and remain in effect following the expiration or termination of this Master Contract, Provided, however, that nothing herein is intended to extend the survival beyond any applicable statute of limitations periods.
18.15. GOVERNING LAW. The validity, construction, performance, and enforc ement of this Master Contract shall be governed by and construed in accordance with the laws of the State of Washington, without regard to its choice of law rules. The validity, construction, performance, and enforcement of Purchase Orders shall be governed by and construed in accordance with the laws of the Participant’s jurisdiction.
18.16. JURISDICTION & VENUE. In the event that any action is brought to enforce any provision of this Master Contract, the parties agree to exclusive jurisdiction in Thurston County Superior Court for the State of Washington and agree that in any such action venue shall lie exclusively at Olympia,
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Washington. In the event that any action is brought to enforce any provision of a Purchase Order, the parties agree to submit to exclusive jurisdiction and venue in the Participant’s jurisdiction.
18.17. ATTORNEYS’ FEES. Should any legal action or proceeding be commenced by either party in order to enforce this Master Contract or any provision hereof, or in connection with any alleged dispute, br each, default, or misrepresentation in connection with any provision herein contained, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, including costs of pursuing or defending any legal action, including, without limitation, any appeal, discovery , or negotiation and preparation of settlement arrangements, in addition to such other relief as may be granted.
18.18. FAIR CONSTRUCTION & INTERPRETATION. The provisions of this Master Contract shall be construed as a whole according to their common meaning and not strictly for or against any party and consistent with the provisions contained herein in order to achieve the objectives and purposes of this Master Contract. Each party hereto and its counsel has reviewed and revised this Master Contract and agrees that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be construed in the interpretation of this Master Contract. Each term and provision of this Master Contract to be performed by either party shall be construed to be both a covenant and a condition.
18.19. F
URTHER ASSURANCES. In addition to the actions specifically mentioned in this Master Contract, the parties and any applicable Participant shall each do whatever may reasonably be necessary to accomplish the transactions contemplated in this Master Contract including, without limitation, executing any additional documents reasonably necessary to effectuate the provisions and purposes of this Master Contract.
18.20. E
XHIBITS. All exhibits referred to herein are deemed to be incorporated in this Master Contract in their entirety.
18.21. CAPTIONS & HEADINGS. The captions and headings in this Master Contract are for convenience only and are not intended to, and shall not be construed to, limit, enlarge, or affect the scope or intent of this Master Contract nor the meaning of any provisions hereof.
18.22. E
LECTRONIC SIGNATURES. A signed copy of this Master Contract or any other ancillary agreement transmitted by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Master Contract or such other ancillary agreement for all purposes.
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18.23. COUNTERPARTS. This Master Contract may be executed in any number of counterparts, each of which shall be deemed an original and all of which counterparts together shall constitute the same instrument which may be sufficiently evidenced by one counterpar t. Execution of this Master Contract at different times and places by the parties shall not affect the validity thereof so long as all the parties hereto execute a counterpart of this Master Contract.
EXECUTED as of the date and year first above written.
STATE OF WASHINGTON
Department of Enterprise Services
GILLIG LLC
a California company
By: ___________________________
Elena McGrew
By: ___________________________
William F Fay, Jr.
Its: Enterprise Procurement Manager Its: Vice President Sales
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EXHIBIT A
Included Transit Buses
Contractor is authorized to sell Heavy Duty Transit Buses [categories awarded], including applicable accessories, components, subsystems, and replacement parts necessary for operation of the transit buses for its operational life. Transit buses offered under this Master Contract will comply with the specifications listed in [specification document title]. [insert specification document and modifications from solicitation at time of contract award]
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Exhibit B
Prices for Heavy Duty Transit Buses
Prices for Heavy Duty Transit Buses as listed in the attached Heavy Duty Price Sheet. [Insert Price Sheet at time of contract award]
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Exhibit C
Insurance Requirements
1. INSURANCE OBLIGATION. During the Term of this Master Contract, Contractor shall possess and maintain in full force and effect, at Contractor’s sole expense, the following insurance coverages:
a. COMMERCIAL GENERAL LIABILITY INSURANCE. Commercial g eneral liability insurance (and, if necessary, commercial umbrella liability insurance) covering b odily injury and p roperty damage, personal injury, and advertising injury liability on an ‘occurrence form’ that shall be no less comprehensive and no more restrictive than the coverage provided by Insurance Services Office (ISO) under the most recent version of form CG 00 01 in the amount of not less than $ 2,000,000 per occurrence and $ 4,000,000 general aggregate.
This coverage shall include blanket contractual liability coverage . This coverage shall include a cross-liability clause or separation of insured condition. b. WORKERS’ COMPENSATION INSURANCE & EMPLOYER’S LIABILITY (STOP GAP). Contractor shall comply with applicable Workers’ Compensation or Industrial Accident insuranc e providing benefits to statutory limits , including Employer’s or Stop -Gap Liability with a minimum limit of $1,000,000 per accident /bodily injury by disease; $1,000,000 policy limit/Bodily injury by disease; and $1,000,000 each employee. c. PRODUCTS-COMPLETED OPERATIONS LIABILITY INSURANCE. Products -completed operations liability insurance in the amount of not less than $ 2,000,000 combined single limit per occurrence, $ 4,000,000 general annual aggregate for a period of five (5) years after acceptance of the last bus delivered under this Contract. Products Liability coverage may be effected through one or more excess liability policies. d. COMMERCIAL AUTOMOBILE LIABILITY INSURANCE. ‘Symbol 1’ Commercial Automobile Liability coverage (and, if ne cessary, commercial umbrella liability insurance) including coverage for all owned, hired, and non -owned vehicles. The combined single limit per accident shall not be less than $2,000,000.
e. PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) INSURANCE. Profession al liability insurance in the amount of not less than $2,000,000 combined single limit per occurrence, $4,000,000 general annual aggregate.
f. UMBRELLA INSURANCE. Umbrella coverage in the sum of $__________ shall be provided and shall apply over all liabilit y policies, without exception, including but not limited to Commercial General Liability, Employers’ Liability, Products-Completed Operations Liability, Automobile Liability, and Professional Liability.
Claims Made Policies (applicable only to professional liability). If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work
2. Insurance must be maintained and evidence of insurance must be prov ided for at least five (5) years after completion of the contract work.
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3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the Contractor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
The insurance coverage limits set forth herein are the minimum. Contractor’s insurance coverage shall be no less than the minimum amounts specified. Coverage in the amounts of these minimum limits, however, shall not be construed to relieve Contractor from liability in excess of such limits . Contractor waives all rights against the State of Washing ton for the recovery of damages to the extent such damages are covered by any insurance required herein.
2. INSURANCE CARRIER RATING. Coverages provided by the Contractor must be underwritten by an insurance company deemed acceptable to the State of Washington’s Office of Risk Management.
Insurance coverage shall be provided by companies authorized to do business within the State of Washington and rated A - Class VII or better in the most recently published edition of Best’s Insurance Rating. Enterprise Serv ices reserves the right to reject all or any insurance carrier(s) with an unacceptable financial rating.
3. ADDITIONAL INSURED. E xcept for Workers ’ Compensation, Commercial Automobile Liability, and Professional Liability (Errors and Omissions) , all required insurance shall include the State of Washington (and its agents, officers, and employees) and the a pplicable Participant as an Additional Insureds evidenced by copy of the Additional Insured Endorsement attached to the Certificate of Insurance on such insurance policies.
4. C
ERTIFICATE OF INSURANCE. Prior to execution of the Master Contract, Contractor shall furnish to Enterprise Services, as evidence of the insurance coverage required by this Master Contract, a certificate of insurance satisfactory to Enterprise Services that insurance, in the above-stated kinds and minimum amounts, has been secured. In addition, no less than ten (10) days prior to coverage expiration , Contractor shall furnish to Enterprise Services an updated or renewed certificate of insurance, satisfactory to Enterprise Services , that insurance, in the above -stated kinds and minimum amounts, has been s ecured. Failure to maintain or provide proof of insurance, as required, will result in contract cancellation. All policies and certificates of insurance shall include the Master Contract number stated on the cover of this Master Contract.
5. PRIMARY COVERAGE. Contractor’s insurance shall apply as primary and shall not seek contribution from any insurance or self-insurance maintained by, or provided to, the additional insureds listed above including, at a minimum, the State of Washington and/or any Participant. All insurance or self-insurance of the State of Washington and/or Participants shall be excess of any insurance provided by Contractor or subcontractors.
6. SUBCONTRACTORS. Contractor shall include all subcontractors as insureds under all required insurance policies. Alternatively, prior to utilizing any subcontractor, Contractor shall cause any such subcontractor to provide insurance that complies will all applicable requirements of the insurance set forth herein and shall furnish separate Certificates of Insurance and endorsements for each subcontractor. Each subcontractor must comply fully with all insurance requirements stated herein. Failure of any subcontractor to comply with insurance requirements does not limit Contractor’s liability or responsibility.
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7. WAIVER OF SUBROGATION. Contractor waives all rights of subrogation against the State of Washington and any Participant for the recovery of damages to the extent such damages are or would be covered by the insurance specified herein.
8. NOTICE OF CHANGE OR CANCELLATION. There shall be no cancellation, material change, exhaustion of aggregate limits, or intent not to renew insurance coverage, either in whole or in part, without at least sixty (60) days prior written Legal Notice by Contractor to Enterprise Services. Failure to provide such notice, as required, shall constitute default by Contractor. Any such written notice shall include the Master Contract number stated on the cover of this Master Contract.
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Exhibit D
Federal Transit Administration Clauses
1.1. NO FEDERAL GOVERNMENT OBLIGATIONS TO THIRD PARTIES. (a) Participant and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to the Participant, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying Contract. (b) Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions.
1.2. FALSE STATEMENTS OR CLAIMS CIVIL AND CRIMINAL FRAUD. (a) Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 4 9 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, 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, Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on Contractor to the extent the Federal Government deems appropriate.
(b) Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on Contractor, to the extent the Federal Government deems appropriate. (c) Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be sub ject to the provisions.
1.3. A
CCESS TO THIRD PARTY CONTRACT RECORDS.
(a) Where the Participant is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 18.36(i), the Contractor agrees to provid e the Participant, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the pur poses of making audits, examinations, excerpts and transcriptions.
Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the FTA Administrator or his
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authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311.
(b) Where the Participant is a State and is the FTA Recipient o r a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 633.17, Contractor agrees to provide the Participant, the FTA Administrator or his authorized representatives, including any PMO Contractor, access to the Contractor's records and constructio n sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a)1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less than the simplified acquisition threshold currently set at $100,000.
(c) Where the Participant enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospita l or other non -profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C.F.R. 19.48, Contractor agrees to provide the Participant, FTA Administrator, the Comptroller General of the United States or any of their duly authorized representatives with access to any books, documents, papers and record of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. (d) Where any Participant which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 U.S.C. 5325(a) enters into a contract for a capital project or improvement (defined at 49 U.S.C. 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to the Participant, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection. (e) Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. (f) Contractor agrees to maintain all books, records, accounts and reports required under this contract for a perio d of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Participant, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR 18.39(i)(11). (g) FTA does not require the inclusion of these requirements in subcontracts.
1.4. C
HANGES TO FEDERAL REQUIREMENTS. Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement between Participant and FTA, as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this Contract.
1.5. TERMINATION. See Section 16 Suspension & Termination and Section 18.13 Waiver.
1.6. CIVIL RIGHTS.
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(a) Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed , national origin, sex, age, or disability. In addition, Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (b) Equal Employment Opportunity. The following equal employment opportu nity requirements apply to the underlying contract:
1. Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, exe cutive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, Contractor agrees to comply with any implementing requirements FTA may issue.
2. Age. In accordance with section 4 of the Age Dis crimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 623 and Federal transit law at 49 U.S.C. § 5332, Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, Contractor agrees t o comply with any implementing requirements FTA may issue.
3. Disabilities. In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, Contractor agrees that it will comply with the requirements of U.S. Equal Employ ment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, Contractor agrees to comply with any implementing requirements FTA may issue. (c) Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties.
1.7. D
ISADVANTAGED BUSINESS ENTERPRISES. The Disadvantaged Business Enterprise (DBE) requirements of 49 CFR Part 26 and USDOT’s official interpretations (i.e., Questions & Answers) apply to this Contract. As such, the requirements of this Contract are to make affirmative efforts to solicit DBEs, provide information on who submitted a Bid or quote and to report DBE participation. No
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preference will be included in the evaluation of Bids/Proposals, no minimum level of DBE participation shall be required as a Condition of Aw ard and Bids/Proposals may not be rejected or considered non-responsive on that basis.
Transit Vehicle Manufacturer Compliance with DBE Requirements. Before a transit vehicle manufacturer (TVM) may submit a bid or proposal to provide vehicles to be finance d with FTA assistance, 49 C.F.R. § 26.49 requires the TVM to submit a certification that it has complied with FTA’s DBE requirements.
1.8. ADA ACCESS. Contractor shall comply with the requirements of 49 CFR FTA C 4710.1 as applicable to this Contract. Equal access and the opportunity should be given to individuals with disabilities to fully participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations.
Contractor must comply with the accessibility requirements of DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 C.F.R. part 37, and Joint Access Board/DOT regulations, “Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles,” 36 C.F.R. part 1192 and 49 C.F.R. part 38.
1.9. I
NCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS. The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding Contract provisions. A ll contractual provisions required by DOT, as set forth in FTA Circular 4220.1F, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions.
1.10. D
EBARMENT AND SUSPENSION. This Contract is a covered transaction for purposes of 49 CFR Part 29.
As such, the contractor is required to verify that none of the contractor, its principals, as defined at 49 CFR 29.995, or affiliates, as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and 29.945. Contractor is required to comply with 49 CFR 29, Subpart C and must include the requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into. By signing and submitting its bid or proposal, the bidder or proposer certifies as follows:
The certification in this clause is a material representation of fact relied upon by Enterprise Services. If it is later determined that the bidder or proposer knowingly rendered an erroneous certification, in addition to remedies available to Enterprise Services, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 49 CFR 29, Subpart C while this offer is valid and 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.
1.11. B
UY AMERICA. 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 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 subject 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. Rolling stock must be assembled in the United States and have at least a 65 percent
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domestic stock content for rolling stock procurements with the first vehicle scheduled for delivery in fiscal years 2018 and 2019 and at least 70 percent domestic content for rolling stock procurements with the first vehicle scheduled for delivery in 2020 or thereafter.
Contractor must submit to Participants the appropriate Buy America Certification with all offers on FTA -funded contracts, except those subject to a general waiver. Proposals that are not accompanied by a properly completed Bus America certification are subject to the provisions of 49 CFR 661.13 and will be rejected as nonresponsive.
Pursuant to Appendix A to §661.7(b), a general public interest waiver from the Buy America requirements applies to microprocessors, computers, microcomputers, or software, or other such devices, which are used solely for the purpose of processing or storing data. This general waiver does no t extend to a product or device which merely con tains a microprocessor or microcomputer and is not used solely for the purpose of processing or storing data.
1.12. R
ESOLUTION OF DISPUTES, BREACHES, OR OTHER LITIGATION. See Section 15.
1.13. LOBBYING. Byrd Anti -Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.]. Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier cer tifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non -Federal funds with respect to that Federal contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the recipient.
1.14. C
LEAN AIR. Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§ 7401 et seq. Contractor agrees to report each violation to the Participant and understands and agrees that the Participant will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.
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.
1.15. CLEAN WATER. 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.
Contractor agrees to report each violation to the Participant and understands and agrees that the Participant will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office.
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.
1.16. CARGO PREFERENCE - Use of United States-Flag Vessels. Contractor agrees to:
(a) Use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross t onnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant
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to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels;
(b) 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) 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.
1.17. E
NERGY CONSERVATION. Contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.
1.18. BUS TESTING. Contractor agrees to comply with the Bus Testing requirements under 49 U.S.C. A 5318(e) and FTA's implementing regulation at 49 CFR Part 665 to ensure that the requisite testing is performed for all new bus models or any bus model with a major change in configuration or components, and that the bus model has achieved a passing score. Upon completion of the testing, Contractor shall obtain a copy of the bus testing reports from the operator of the testing facility and make that report publicly available prior to final acceptance of the first vehicle by the recipient.
1.19. P
RE-AWARD AND POST-DELIVERY AUDIT REQUIREMENTS. Contractor agrees to comply with 49 U.S.C. § 5323(m) and FTA's implementing regulation at 49 C.F.R. part 663. C ontractor shall comply with the Buy America certification(s) submitted with its proposal/bid. Contractor agrees to participate and cooperate in any pre -award and post-delivery audits performed pursuant to 49 C.F.R. part 663 and related FTA guidance. Contra ctor shall submit manufacturer’s FMVSS self-certification, Federal Motor Bus Safety Standards, that the bus complies with relevant FMVSS or manufacturer’s certified statement that the contracted buses will not be subject to FMVSS regulations.
1.20. F
LY AMERICA. Contractor agrees to comply with 49 USC 40118 (the “Fly America” Act) in accordance with the General Services Administration’s regulations at 41 CFR Part 301-10, which provide that recipients and sub recipients of federal funds and their Contractors are required to use U.S. flag air carriers for U.S. government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S.-flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation.
1.21. C
ONTRACT WORK HOURS AND SAFETY STANDARDS ACT. For all contracts in excess of $100,000 that involve the employment of mechanics or laborers, Contractor shall comply with the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701 - 3708), as supplemented by the
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Department of Labor regulations at 29 C.F.R. part 5. Under 40 U.S.C. § 3702 of the Act, Contractor shall compute the wages of every mechanic and laborer, including watchmen and guards, on the basis of a standard work week of 40 hours. Work in excess of the st andard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchase of supplies or materials or articles o rdinarily available on the open market, or to contracts for transportation or transmission of intelligence.
In the event of any violation of the clause set forth herein, Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, Contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Liquidated damages w ill be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of this clause 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 this clause.
The Participant will upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same prime Contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in this section.
Contractor or subcontractor shall insert 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 agreement.
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Exhibit E
Federal Transit Administration Certifications
[inserted from Solicitation Exhibit A-3]