2618 SampleContract.docx

INTERCITY TRANSIT

CONTRACT NO. 2618

FOR

HYDROGEN TUBE TRAILERS

THIS CONTRACT is made and entered into upon date of final execution by and between Intercity Transit, a Washington municipal corporation, hereinafter referred to as "Transit", and the below named company, hereinafter referred to as "Contractor", for the purpose of providing hydrogen tube trailers and related goods and services to support Transit’s hydrogen fleet.

City, State Zip Code

RECITALS

WHEREAS, Transit desires to have certain services and/or tasks performed as hereinafter set forth requiring specialized skills and other supportive capabilities; and WHEREAS, sufficient Transit resources are not available to provide such services; and WHEREAS, Contractor represents that Contractor is qualified and possesses sufficient skills and the necessary capabilities, including technical and professional expertise where required, to perform the services and/or tasks set forth in this Contract.

NOW, THEREFORE, in consideration of the terms, conditions, covenants and performance contained herein, Transit and Contractor agree as follows:

PURPOSE

The purpose of this Contract is to enter into an agreement for the purchase of hydrogen tube trailers, training, and related goods and services in support of Transit’s hydrogen bus fleet.

SCOPE OF WORK

A. Contractor will perform such services and comply with the requirements set forth in this Contract document, including furnishing all materials and equipment necessary to complete the Hydrogen Tube Trailers Project No. 2618, and as identified in the following attached Exhibits which are incorporated by reference:

1. Contract 2618 Scope of Work, attached as Exhibit A

2. Contractor’s Rate/Pricing Schedule, attached as Exhibit B

3. Request for Proposals (RFP) 2618, Released [DATE], attached as Exhibit C

4. Contractor’s Response to RFP 2618 dated [DATE], attached as Exhibit D B. In the case of any inconsistency between the Contractor’s response to RFP 2618 and the Scope of Work described herein, the latter shall control.

ADMINISTRATION AND SUPERVISION

A. The work and services under this Contract are subject to certain federal laws, regulations, and other requirements in effect on the date of execution of this Contract. Transit and the Contractor agree that such federal laws, regulations, and other requirements supersede any conflicting provisions of this Contract.

B. The Contractor represents that it has, or will obtain, all personnel necessary to perform the services required under this Contract and that such personnel are qualified, experienced, and licensed as may be necessary or required by laws and regulations to perform such services. All services required under this Contract must be performed by the Contractor, its employees, or by subcontractors whose selection has been authorized by Transit; provided, that Transit’s authorization will not relieve the Contractor or its subconsultants from any duties or obligations under this Contract or at law to perform in a satisfactory and competent manner. The Contractor will remove from the Project any of its subconsultants or personnel assigned to the Project if, after the matter has been thoroughly considered by Transit and the Contractor, Transit considers such removal necessary and in the best interests of the Project and so advises the Contractor in writing.

C. The Project must be coordinated and integrated with other Transit activities.

DURATION OF CONTRACT

The initial term of the Contract resulting from this RFP is expected to begin the date of final signature and end Five (5) years after Transit has accepted delivery and approval of both trailers. The Contract may be extended for five (5) additional one (1) year terms, or portions thereof, with a total contract term not to exceed ten (10) years, unless special circumstances dictate otherwise. Extension(s) for each additional term may be offered and the sole discretion of Transit and will be subject to written mutual agreement.

CHANGES AND ADDITIONAL WORK

A. Transit may, at any time, by written order direct the Contractor to revise portions of the project, or make other changes, including additional work, within the general scope of the services or work to be performed under this Contract.

B. Compensation for each such request for additional work will be negotiated by Transit and the Contractor consistent with the compensation provisions set forth herein, and if so authorized, will be considered part of the project work. The Contractor may not perform any additional work until authorized by Transit in writing.

CONTRACTOR ACQUISITION AND/OR MERGER

If the Contractor executing this Contract ceases to exist as an independent business entity by means of acquisition by and/or merger with a successor or otherwise, the Contractor must notify Transit in writing not less than thirty (30) calendar days prior to the effective date of the circumstance causing the cessation of the independent business status. Transit reserves the right to take steps to ensure it has contractual privity with the successor. The Contractor must cooperate with this effort by agreeing to an assignment, a novation, or other document required to transfer the rights and responsibilities of the Contractor to the successor. The successor will be required to be bound to the same degree that the Contractor was bound to the obligations of this Contract.

COMPENSATION AND METHOD OF PAYMENT

A. Total consideration payable to the Consultant for satisfactory performance of the work during the initial Contract term will not exceed $________________, as described in Exhibit B.

B. If Contractor fails to comply with any terms or conditions of this Contract or to provide, in any manner, the work or services agreed to in this Contract, Transit may withhold any payment due the Contractor until Transit is satisfied that corrective action, as specified by Transit, has been completed. This right is in addition to, and not in lieu of, Transit’s right to terminate this Contract as provided in Section 34, Termination.

BILLING PROCEDURES

A. Payments for services and materials provided under this Contract will be made on not more than a monthly basis, following the full performance and acceptance of such service and materials. No payment will be made for any service rendered or material provided by Contractor except for services and materials identified and set forth in this Contract unless otherwise permitted by law and approved in writing by Transit.

B. Contractor will submit an invoice for services rendered to Transit on forms approved by Transit. Invoices are to be submitted electronically to the designated contract manager (bhoux@intercitytransit.com). If Contractor is unable to submit invoices electronically, invoices may be submitted by mail to:

Intercity Transit Attn: Procurement Office 510 Pattison Street SE Olympia, WA 98501 C. Transit will submit payment for stated services to Contractor within thirty (30) days following Transit’s receipt of each accurate and complete invoice. No payments in advance of, or in anticipation of, receipt of goods or services to be provided under this Contract will be made by Transit.

D. Any charges for the following must be included on a standalone invoice: storage charges, parking charges, late fees, and fines, as well as any fees (including vehicle registration, license, safety, and emission control inspection fees), and taxes, except applicable state sales or use tax, which may be imposed with respect to the project equipment by a duly constituted governmental authority as the result of Transit’s use or intended use of the project equipment. All replacements, repairs, or substitutions of parts or project equipment shall also be billed separately.

PRICE ADJUSTMENTS

A. The service rates will be consistently applied and remain firm throughout the term of the Contract unless Transit agrees to a price adjustment. Contractor will provide a detailed breakdown of their costs upon request.

B. No less than sixty (60) Calendar Days before the end of the current Contract term, Contractor may request price adjustments by written notice to Transit. Transit may take price adjustments into consideration when determining whether to extend this Contract.

C. Price adjustments will not be considered without supporting documentation sufficient to justify the requested amounts. For services, rates may be adjusted by no greater than the percentage shown in the Seattle Consumer Price Index. Surcharges for fuel, hazardous material disposal, or similar will not be allowed. Contractor will not make Contract extensions contingent on price adjustments.

D. The grant of any price adjustment will be at the sole discretion of Transit and, if granted, will not produce a higher profit margin for the Contractor than that established by the original contract pricing. Transit will notify the Contractor of any granted price adjustment in writing, and such price adjustment will be formalized in a written Contract amendment. Any granted price adjustment will remain unchanged for the remainder of the current Contract term, and no additional price adjustment requests will be considered during that time period.

PROJECT MANAGEMENT

The individuals listed below, or their successors will be the main points of contact for services provided under this Contract. Transit’s Project Manager or his/her successor is responsible for monitoring Contractor’s performance and will be the contact person for all communications regarding Contract performance and deliverables. Transit’s Project Manager has the authority to accept or reject the services provided and if satisfactory, certify acceptance of each invoice submitted for payment. Notifications regarding changes to this section must be in writing and maintained in the project file, but will not require a formal Contract amendment.

First Last Company Street Address City, State Zip Phone: (###) ###-#### Email address: [Enter email address] First Last Intercity Transit 526 Pattison Street SE Olympia, WA 98501 Phone: (360) 705-#### Email address: flast@intercitytransit.com

CONTRACT ADMINISTRATION

The individual listed below, or his/her successor, will be Contract Administrator for this Contract. The Contract Administrator is designated to receive legal notices, invoices, and to administer, amend, or terminate this Contract. All Contract documents under this Contract will be processed by the Contract Administrator and submitted to Contractor for acceptance. Contact information for the Contract Administrator is:

Brenden Houx Intercity Transit 510 Pattison Street SE Olympia, WA 98501 Phone: (360) 819-0606 Email address: bhoux@intercitytransit.com

PROJECT PERSONNEL

Contractor represents that it has, or will obtain, all personnel necessary to perform the services required under this Contract. Contractor agrees that the key personnel identified in its Submittal will be committed by Contractor to this project for its duration. Substitution or replacement of key personnel will be subject to Transit’s approval following written request by the Contractor. All services required under this Contract will be performed by the Contractor, its employees, agents, representatives, or authorized subcontractors.

NON-EXCLUSIVE PROVIDER

Transit reserves the right to obtain services or supplies not specifically covered by this Contract from other providers as deemed in the best interest of Transit.

CHANGES

Either party may request changes to the scope of services and performance to be provided under this Contract; however, no change or addition to this Contract will be valid or binding upon either party unless such change or addition is in writing and signed by both parties. All amendments will be attached to and incorporated into this Contract.

INDEPENDENT CONTRACTOR RELATIONSHIP

A. The parties intend that an independent contractor relationship between Contractor and Transit will be created by this Contract. Transit is interested primarily in the results to be achieved; subject to the provisions herein, the implementation of services will lie solely with the discretion of Contractor. No agent, employee, servant or representative of Contractor shall be deemed to be an employee, agent, servant or representative of Transit for any purpose, and the employees of Contractor are not entitled to any of the benefits Transit provides to its employees. Contractor will be solely and entirely responsible for its acts and for the acts of its agents, employees, servants, subcontractors or representatives during the performance of this Contract.

B. In the performance of the services required by this Contract, Contractor is an independent Contractor with the authority to control and direct the performance of the details of the work, however, the results of the required work must meet the approval of Transit and shall be subject to Transit's general rights of inspection and review to secure the satisfactory completion thereof in accordance with applicable agreed upon testing procedures between Transit and Contractor.

ASSIGNMENT

Contractor will not assign its performance under this Contract, or any portion of this Contract, without the written consent of Transit. This includes the execution of any contract, contract amendment, or change order thereto, or obligate itself in any manner with any third party with respect to its rights and responsibilities under this Contract. Contractor may not in any way encumber the project equipment. Contractor must seek consent from Transit, in writing, not less than thirty (30) days prior to the date of any proposed assignment. Prior to providing written consent, Transit will seek concurrence from WSDOT. Transit and/or WSDOT reserves the right to reject any assignment without cause.

HOLD HARMLESS AND INDEMNIFICATION

A. The Contractor shall defend, indemnify, and hold Transit and its officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the negligence of, or the breach of any obligation under this Contract by, the Contractor or the Contractor’s agents, employees, sub consultants, subcontractors or vendors, of any tier, or any other persons for whom the Contractor may be legally liable; provided, that nothing herein shall require a Contractor to defend, indemnify or hold harmless Transit and its officers and employees from claims, demands or suits based upon the sole negligence of, or breach of any obligation under this Contract by Transit, its agents, officers, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom Transit may be legally liable; and provided further, that if the claims or suits are caused by or result from the concurrent negligence of (a) the Contractor or the Contractor’s agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the Contractor is legally liable, and (b) Transit, its agents, officers, employees, sub-consultants, subcontractors and or vendors, of any tier, or any other persons for whom Transit may be legally liable, the defense and indemnity obligation shall be valid and enforceable only to the extent of the Contractor’s negligence or the negligence of the Contractor’s agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the Contractor may be legally liable. This provision shall be included in any Contract between Contractor and any sub-consultant, subcontractor and vendor, of any tier.

B. The Contractor shall also defend, indemnify, and hold Transit and its officers and employees harmless from all claims, demands, or suits at law or equity arising in whole or in part from the alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions by the Contractor or the Contractor’s agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the Contractor may be legally liable, in performance of the Work under this Contract or arising out of any use in connection with the Contract of methods, processes, designs, information or other items furnished or communicated to Transit, its agents, officers and employees pursuant to the Contract; provided that this indemnity shall not apply to any alleged patent or copyright infringement or other allegedly improper appropriation or use of trade secrets, patents, proprietary information, know-how, copyright rights or inventions resulting from Transit, or its agents’, officers’ and employees’ failure to comply with specific written instructions regarding use provided to Transit, its agents, officers and employees by the Contractor, its agents, employees, sub-consultants, subcontractors or vendors, of any tier, or any other persons for whom the Contractor may be legally liable.

C. The Contractor’s relation to Transit shall be at all times as an independent contractor.

D. Notwithstanding any determination by the Executive Ethics Board or other tribunal, Transit may, in its sole discretion, by written notice to the Contractor terminate this Contract if it is found after due notice and examination by Transit that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW; or any similar statute involving the Contractor in the procurement of, or performance under, this Contract.

E. The Contractor specifically assumes potential liability for actions brought by the Contractor’s own employees or its agents against Transit and, solely for the purpose of this indemnification and defense, the Contractor specifically waives any immunity under the state industrial insurance law, Title 51 RCW. This waiver has been mutually negotiated between the Parties.

F. Unless otherwise specified in this Contract, Transit shall be responsible for administration of construction contracts, if any, on the project. Subject to the processing of a new sole source, or an acceptable supplemental Contract, the Contractor shall provide On-Call assistance to Transit during contract administration. By providing such assistance, the Contractor shall assume no responsibility for: proper construction techniques, job site safety, or any construction contractor’s failure to perform its work in accordance with the contract documents.

G. The Contractor shall obtain and keep in force during the terms of this Contract, or as otherwise required, the following insurance with companies or through sources approved by the State Insurance Commissioner pursuant to Title 48 RCW.

WSDOT LIMITATION OF LIABILITY

This project under this contract is partially funded with grant funds provided by the Washington State Department of Transportation (WSDOT). The following related terms are hereby incorporated into this agreement:

A. No Obligation by the State Government: This contract will not create any obligation or liability for WSDOT without WSDOT’s specific written consent, notwithstanding its concurrence in, or approval of, the award of any contract or subcontract or the solicitations thereof.

B. Personal Liability of Public Officers: No officer or employee of WSDOT shall be personally liable for any acts or failure to act in connection with this Contract, it being understood that in such matters they are acting solely as agents of WSDOT.

C. Limitation of Liability:

1. The Contractor shall indemnify, defend, and hold harmless WSDOT, its agents, employees, and officers and process and defend at its own expense any and all claims, demands, suits at law or equity, actions, penalties, losses, damages, or costs (hereinafter referred to collectively as “claims”), of whatsoever kind or nature brought against WSDOT arising out of, in connection with or incident to the execution of this Contract and/or the Contractor’s performance or failure to perform any aspect of this Contract. This indemnity and defense provision applies to all claims against WSDOT, its agents, employees and officers arising out of, in connection with or incident to the negligent acts or omissions of the Contractor, its agents, employees, officers and subcontractors of any tier. Provided, however, that nothing herein shall require the Contractor to indemnify, defend, and hold harmless or defend WSDOT, its agents, employees or officers to the extent that claims are caused by the negligent acts or omissions of WSDOT, its agents, employees or officers; and provided further that if such claims result from the concurrent negligence of (a) the Contractor its employees, agents, officers or contractors and (b) the State, its employees or authorized agents, or involves those actions covered by RCW 4.24.115, the indemnity and defense provisions provided herein shall be valid and enforceable only to the extent of the negligence of the party, its employees, officers, authorized agents, and/or contractors. The indemnification and hold harmless provision shall survive termination of this Contract.

2. The Contractor shall be deemed an independent contractor for all purposes, and the employees of the Contractor its subcontractors and the employees thereof, shall not in any manner be deemed to be the employees of WSDOT.

3. The Contractor agrees that its obligations under this Contract extend to any claim, demand, and/or cause of action by, or on behalf of its employees or agents while performing under this Contract. For this purpose, the Contractor, by mutual negotiation, hereby waives any immunity that would otherwise be available to it against such claims under the Industrial Insurance provisions in Title 51 RCW.

4. In the event either the Contractor or WSDOT incurs attorney’s fees, costs or other legal expenses to enforce the provisions of this section of this Contract against the other party, all such fees, costs and expenses shall be recoverable by the prevailing party.

INSURANCE

A. Insurance Requirements – Contractor shall obtain and maintain the minimum insurance set forth below. Contractor will ensure that its actual insurance amount is adequate to cover the value of the project equipment. By requiring such minimum insurance, Transit shall not be deemed or construed to have assessed the risks that may be applicable to the Contractor under this Contract. The Contractor shall assess its own risks and, if it deems appropriate and/or prudent, maintain greater limits and/or broader coverage.

1. Commercial General Liability Insurance on an occurrence basis in an amount not less than $1,000,000 per occurrence and at least $2,000,000 in the annual aggregate, including but not limited to: premises/operations (including off-site operations).

2. Business Automobile Liability Insurance in an amount not less than $1,000,000 per occurrence, extending to any automobile, including owned, non-owned and hired vehicles.

3. Workers’ Compensation Insurance as required by Washington State law and Employer’s Liability Insurance (Stop Gap) with limits not less than $1,000,000 per occurrence.

4. Professional Liability Insurance coverage with limits of not less than $500,000 per claim aggregate throughout the duration of this Contract and for a period of two (2) years thereafter.

B. Additional Requirements – Contractor shall provide to Transit Certificates of Insurance if requested, prior to commencement of work. All policies of insurance shall:

i. Contain an endorsement specifically naming Intercity Transit its officers, officials, agents, and employees, as Additional Insureds with respect to the Commercial General Liability Policy only.

ii. Include a Severability of Interest clause (cross liability) applicable to Commercial General Liability and Business Automobile Liability Policies only.

iii. Any cancelled or non-renewed policy will be replaced with no coverage gap and a current Certificate of Insurance will be provided.

iv. Be provided on forms and by insurance companies satisfactory to Transit.

No provision in this paragraph shall be construed to limit the liability of the Contractor for work not done in accordance with the Contract, or express or implied warranties. The Contractor’s liability for the work shall extend as far as the appropriate periods of limitation provided by law.

C. Worker’s Compensation – The Contractor and its subcontractors shall maintain worker’s compensation insurance in the amount and type required by law for all employees employed under this Contract who may come within the protection of worker’s compensation laws. The Contractor shall make all payments arising from the performance of this Contract due the State Washington pursuant to Titles 50 and 51 RCW.

D. Evidences and Cancellation of Insurance – Prior to execution of the Contract, the Bidder/ Contractor shall file with Transit evidences of insurance from the insurer(s) certifying to the coverage of all insurance required herein. All evidences of insurance must be certified by a properly authorized officer, agent, general agent or qualified representative of the insurer(s) and shall certify the name of the insured, the type and amount of insurance, the location and operations to which the insurance applies, and the expiration date. Any failure to mail such notice shall not relieve the insurance company, its agents, or representatives from obligations and/or liability hereunder.

E. The Contractor shall, upon demand of Transit, deliver to Transit all such policy or policies of insurance and the receipts for payment of premiums thereon; and should the Contractor neglect so to obtain and maintain in force any such insurance or deliver such policy or action plan to acquire such insurance and/or deliver policies and receipts within three days or before any further performance hereunder, whichever is first. Failure to provide such insurance in a timeframe acceptable to Transit shall enable Transit to suspend or terminate the Contractor’s work. Suspension or termination of this Contract shall not relieve the Contractor from its insurance obligations hereunder.

INSPECTION AND ACCEPTANCE

The equipment is subject to Transit’s reasonable inspection, testing, and approval at Transit’s location for a period of fifteen (15) calendar days from the date of installation to either accept or reject the equipment. Transit reserves the right to reject and refuse acceptance of equipment that is not in accordance with this Contract during this inspection period. Transit retains the right to complete as thorough an inspection as it deems necessary to determine if the equipment is in conformance with Contract requirements for configuration and performance parameters. If rejected, Transit shall provide a written notice specifying the equipment deficiencies to Contractor, with a copy to WSDOT, allowing the Contractor a reasonable amount of time to cure the deficiencies or defects. Acceptance by Transit occurs when Transit provides Contractor with a written Notice of Acceptance, which will be subsequent to final inspection by Transit. All acceptances are subject to the warranty requirements of this Contract. Payment to Contractor will occur within thirty (30) days following acceptance and Transit’s receipt of each accurate and complete invoice.

TREATMENT OF ASSETS

A. Title to all property furnished by Transit shall remain in the name of Transit. Transit shall become the owner of the work product and other documents, if any, prepared or developed specifically by Contractor for Transit pursuant to this Contract, unless otherwise expressly provided herein.

B. Work product shall include, but not be limited to, research, reports, computer programs, manuals, drawings, recordings, photographs, artwork and any data or information in any form; Contractor and Transit intend that such work product shall be deemed “work made for hire” of which Transit shall be deemed the author.

C. Transit shall have the right to use the documents and other work product of the Firm which are supplied to Transit in the course of the performance of this Contract without any right on the part of the Firm to claim copyright or other ownership rights as to the same.

COMPLIANCE WITH LAWS

A. In the performance of this Contract, Contractor shall comply with all applicable federal, state or local laws and ordinances, including regulations for licensing, certification and operation of equipment, and licensing of individuals, and any other standards or criteria described in this Contract to assure quality of services.

B. Contractor agrees to pay any applicable business and occupation (B&O) taxes which may be due on account of this Contract.

C. If sales tax becomes applicable to the professional services covered by this Contract, Transit shall pay such tax to Contractor, and Contractor shall pay the tax as required by law.

D. Except when a federal statute or regulation preempts state or local law, no provision of this Contract shall require the Contractor to observe or enforce compliance with any provision, perform any other act, or do any other thing in contravention of state or local law. If any provision or compliance with any provision of this Contract violates state or local law or would require the Contractor to violate state or local law, the Contractor agrees to notify Transit immediately in writing. Should this occur, Transit and the Contractor agree to make appropriate arrangements to proceed with or, if necessary, expeditiously, terminate the Contract. Transit will notify WSDOT of any actions related to this section.

POLITICAL ACTIVITY PROHIBITED

None of the funds, materials, property, or services provided directly or indirectly under this Contract shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office.

PROHIBITED INTEREST

No Authority member, officer or employee of Transit shall have any personal interest, direct or indirect, in this Contract or the proceeds thereof.

EQUAL EMPLOYMENT OPPORTUNITY

A. Equal Opportunity. Transit is an equal opportunity employer.

B. Nondiscrimination in Employment. In the performance of this Contract, Contractor will not discriminate against any employee or applicant for employment on the grounds of race, creed, color, national origin, sex, marital status, age or the presence of any sensory, mental or physical handicap; provided that the prohibition against discrimination in employment because of handicap shall not apply if the particular disability prevents the proper performance of the particular work involved. Contractor shall ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, national origin, sex, marital status, age or the presence of any sensory, mental or physical handicap. Such action shall include, but not be limited to: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and programs for training including apprenticeships. Contractor shall take such action with respect to this Contract as may be required to ensure full compliance with Chapter 49.60 Revised Code of Washington, Law against Discrimination.

C. Nondiscrimination in Services. Contractor will not discriminate against any recipient of any services or benefits provided for in this Contract on the grounds of race, creed, color, national origin, sex, marital status, age or the presence of any sensory, mental or physical handicap.

D. Nondiscrimination in Sub-Contracting. If any assignment and/or subcontracting have been authorized by Transit, said assignment or subcontract shall include appropriate safeguards against discrimination. Contractor shall take such action as may be required to ensure full compliance with the provisions in the immediately preceding paragraphs herein and further agrees to insert a similar provision in all subcontracts, except subcontracts for standard commercial supplies or raw materials.

GRATUITIES AND KICKBACKS

A. Gratuities – It shall be a breach of ethical standards for any person to offer, give or agree to give any Intercity Transit Authority member, officer, employee, agent or former Authority member, officer, employee, or agent or for any Authority member, officer, employee, agent or former Authority member, officer, employee or agent to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any program requirement or a contract or subcontract, or to any solicitation therefore.

B. Kickbacks – It shall be a breach of ethical standards for any payment, gratuity, or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime Contractor or higher tier subcontractor or any person associated therewith, as an inducement for the award of a subcontract or order.

C. Contractor will not extend any loan, gratuity or gift of money in any form whatsoever to any employee or officer of Transit or WSDOT, nor shall Contractor knowingly rent or purchase any equipment and materials from any employee or officer of Transit or WSDOT.

LIENS, CLAIMS AND ENCUMBRANCES

Contractor certifies that all materials, equipment or services shall be free of all liens, claims, or encumbrances of any kind, and if Transit requests, a formal release of same shall be provided.

MAINTENANCE AND INSPECTION OF RECORDS

A. Contractor agrees to establish and maintain for the project either a separate set of accounts or separate accounts within the framework of an established accounting system that can be identified with the project. Contractor agrees that all checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible, and available to Transit upon request, and, to the extent feasible, kept separate from documents not pertaining to the Project. Transit will share any requested information with WSDOT.

B. Contractor shall maintain data, books, reports, records, contracts, and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of this Contract and shall undertake such accounting procedures and practices as may be deemed necessary to assure proper accounting of all funds paid pursuant to this Contract. These records shall be subject at all reasonable times to inspection, review or audit, by Transit, its authorized representative, the State Auditor, WSDOT, or any of their authorized representatives or other governmental officials authorized by law to monitor this Contract.

C. Contractor shall retain all data, books, reports, records, contracts, documents, drawings and other material relevant to this Contract for six (6) years after Transit's final payment and all other pending matters are closed. Contractor agrees that Transit, WSDOT, or its designee, shall have full access and right to examine and receive copies of (in their native form) any of said materials throughout said period. Project closeout does not alter these recording and record-keeping requirements. Should an audit, enforcement, or litigation process be commenced, but not completed, during the aforementioned six-year period then the Contractor’s obligations hereunder shall be extended until the conclusion of that pending audit, enforcement, or litigation process.

D. Contractor's fiscal management system shall include the capability to provide accurate, current and complete disclosure of the financial status of this Contract upon request. Contractor will retain detailed records of all maintenance and parts replacement performed on the HRS. Contractor will provide copies of such records to Transit upon request. Transit will provide copies of the records to WSDOT upon request.

DISPUTES

Disputes arising in the performance of this Contract which are not resolved by agreement of the parties will be decided by arbitration if the parties mutually agree, or in the Superior Court of Thurston County, Washington, which shall have exclusive jurisdiction and venue over all matters in question between Transit and Contractor.

TERMINATION

A. Termination for Convenience or Default. Transit may terminate the Contract, in whole or in part, for Transit’s convenience or because of the failure of Contractor to fulfill the Contract obligations. Transit shall terminate by delivering to Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise or Transit has granted Contractor a cure period as set forth in (B) below), and (2) deliver to Transit all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this Contract, whether completed or in process.

i. If the termination is for the convenience of Transit, Transit shall make an equitable adjustment in the Contract price such that all amounts due to Contractor for Products delivered and services performed are paid, but shall allow no anticipated profit on unperformed services.

ii. If the termination is for failure of Contractor to fulfill the contract obligations, the Contractor shall only be paid for work delivered and accepted unless such work does not fulfill the Contract obligations. Transit may complete the work by Contract or otherwise and Contractor shall be liable for any additional cost incurred by Transit.

iii. If, after termination for failure to fulfill Contract obligations, it is determined that Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of Transit.

B. Opportunity to Cure. Transit in its sole discretion may, in the case of a termination for breach or default, allow Contractor a commercially reasonable period of time in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions.

i. If Contractor fails to remedy to Transit’s satisfaction, the breach or default or any of the terms, covenants, or conditions of this Contract within ten (10) days after receipt by Contractor of written notice from Transit setting forth the nature of said breach or default, Transit shall have the right to terminate the Contract without any further obligation to Contractor, except that Contractor shall be paid for work delivered and accepted unless such work does not fulfill the Contract obligations. Any such termination for default shall not in any way operate to preclude Transit from also pursuing all available remedies against Contractor and its sureties for said breach or default.

WAIVER OF REMEDIES FOR ANY BREACH

In the event that Transit elects to waive its remedies for any breach by the Contractor of any covenant, term or condition of this Contract, such waiver by Transit shall not limit Transit’s remedies for any succeeding breach of that or of any other term, covenant, or condition of this Contract.

WAIVER

Waiver of any breach of any term or condition of the Contract shall not be deemed a waiver of any prior or subsequent breach. No term or condition of the Contract shall be held to be waived, modified or deleted except by an instrument in writing signed by the parties hereto.

CHANGED CONDITIONS AFFECTING PERFORMANCE

The Contractor hereby agrees to immediately notify Transit of any change in conditions or law, or of any other event, which may affect its ability to perform the Project in accordance with the provisions of this Contract. Transit will provide any such notifications received to WSDOT.

NOTICE

Notice provided for in this Contract shall be sent by certified mail to the addresses designated for the parties on the last page of this Contract.

ATTORNEYS FEES AND COSTS

If any legal proceeding is brought for the enforcement of this Contract, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Contract, the prevailing party shall be entitled to recover from the other party, in addition to any other relief to which such party may be entitled, reasonable attorney’s fees and costs incurred in such action or proceeding.

BREACHES AND DISPUTE RESOLUTION

A. Except as otherwise provided in the Contract, Contractor must notify Transit in writing within thirty (30) Calendar Days of any dispute arising under the Contract which is not disposed of by agreement.

B. All disputes shall be decided by the General Manager of Transit who shall indicate his/her decision in writing and mail or otherwise furnish a copy thereof to the Contractor. The decisions of the General Manager shall be final and conclusive, unless determined by a court of competent jurisdiction to have been fraudulent, capricious, arbitrary, so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence.

C. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard within thirty (30) calendar days of the decision, and to offer evidence in support of their appeal. Pending final decisions of a dispute hereunder, the Contractor shall proceed diligently with the performance of the Contract in accord with the General Manager’s decision, and such continued performance does not in any manner imply acceptance of our agreement with that decision by the Contractor, nor does it infringe upon the Contractor’s right to appeal that decision. This clause does not preclude consideration of law questions in connection with decisions provided for in the above paragraph, provided that nothing in this Contract shall be construed as making final decision of any administrative official, representative, or board on a question of law.

JURISDICTION

A. This Contract has been and shall be construed as having been made and delivered within the state of Washington and it is agreed by each party hereto that this Contract shall be governed by laws of the state of Washington, both as to interpretation and performance.

B. Any action of law, suit in equity, or judicial proceeding for the enforcement of this Contract or any provisions thereof shall be instituted and maintained only in any of the courts of competent jurisdiction in Thurston County, Washington.

SEVERABILITY

A. It is understood and agreed by the parties that if any part, term or provision of this Contract is held by the courts to be illegal, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Contract did not contain the particular provision held to be invalid.

B. If it should appear that any provision of this Contract is in conflict with any statutory provision of the State of Washington, said provision which may conflict therewith shall be deemed inoperative and null and void insofar as it may be in conflict therewith, and shall be deemed modified to conform to such statutory provision.

ORDER OF PRECEDENCE

Each of the exhibits listed below is hereby incorporated into this Contract. In the event of an inconsistency in this Contract, the inconsistency shall be resolved by giving precedence in the following order:

1. Applicable federal and state of Washington statutes and regulations;

2. Terms and conditions as contained in this basic Contract instrument, and any change orders or amendments;

3. Exhibit A – Scope of Work

4. Exhibit B – Contractor’s Rate/Pricing Schedule

5. Exhibit C – Request for Proposals No. 2618, released [Date]

6. Exhibit D – Contractor’s Response to RFP No. 2618 dated [Date]

7. Any other provision, term or material incorporated herein by reference or otherwise incorporated

ENTIRE CONTRACT

The parties agree that this Contract is the complete expression of the terms hereto and any oral representations or understandings not incorporated herein are excluded. Failure to comply with any of the provisions stated herein shall constitute material breach of Contract and cause for termination. Both parties recognize time is of the essence in the performance of the provisions of this Contract. It is also agreed by the parties that the forgiveness of the nonperformance of any provision of this Contract does not constitute a waiver of the provisions of this Contract.

SUSPENSION AND DEBARMENT

By signing this contract, the Contractor certifies, to the best of its knowledge and belief, that it and its principals:

A. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency;

B. Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification of destruction of records, making false statements, or receiving stolen property;

C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated paragraph (2) of this certification; and D. Have not within a three-year period preceding this application/proposal had one or more public transactions (federal, state or local) terminated for cause or default.

APPROVAL

The signatories to this Contract represent that they have the authority to bind their respective organizations to this Contract.

IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed the day and year first hereinbelow written.

INTERCITY TRANSIT

510 Pattison Street SE Olympia, WA 98501

CONTRACTOR

Address City, State, Zip

Its: General Manager

Its: Title

RFP 2618 – APPENDIX B – SAMPLE CONTRACT

Hydrogen Tube Trailers 23 of 39 Intercity Transit Contract 2618

EXHIBIT A

SCOPE OF WORK

[Placeholder]

EXHIBIT B

CONTRACTOR’S RATE/PRICING SCHEDULE

EXHIBIT C

INTERCITY TRANSIT’S REQUEST FOR PROPOSALS (RFP) - PROJECT 2618

EXHIBIT D

CONTRACTOR’S RESPONSE TO REQUEST FOR PROPOSALS (RFP) - PROJECT 2618