6-06 - Exhibit D - 33D.pdf

Solicitation No. B-2093845

DART Form 33D Page 1 of 7 Exhibit D

DALLAS AREA RAPID TRANSIT

EXHIBIT D

SPECIAL PROVISIONS

Table of Contents

1 ADDITIONAL DEFINITIONS (D-200.11A, AUG 90)

2 DEFINITE QUANTITY/DEFINITE DELIVERY (D-200.01A, AUG 90)

3 NOTICE TO PROCEED (D-200.02A, MAR 02)

4 TERM OF CONTRACT (D-200.03A, JUN 06)

5 DELIVERY (D-200.04, JAN 02)

6 INVOICING AND PAYMENT (D-200.07A, JUN 01)

7 INSURANCE REQUIREMENTS FOR SUPPLY/SERVICES CONTRACTS (D-200.08A, MAR 02)

8 MANUFACTURER’S WARRANTY (D-200.12A, JAN 02)

9 MOTOR VEHICLE SAFETY STANDARDS (D-200.10A, AUG 90)

10 TITLE (D-200.10B, AUG 90)

11 CERTIFICATE OF CONFORMANCE (6-203.13, JUN 86)

12 FIVE STAR CUSTOMER SERVICE (D-700.01, APR 15)

13 U.S. DEPARTMENT OF HOMELAND SECURITY’S E-VERIFY SYSTEM (D-700.02, APR 15)

14. PAYMENT BONDS (5-303, OCT 24)

15. TARIFFS AND DUTIES

1 Additional Definitions (D-200.11A, AUG 90)

As used throughout this contract, the following terms shall have the meaning as set forth below.

(a) D/FW Consolidated Metropolitan Statistical Area (D-200.11B, AUG 90)

The D/FW CMSA (Dallas/Fort Worth Consolidated Metropolitan Statistical Area) includes the following nine (9) Texas counties: Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall and Tarrant.

(b) Work Day (D-200.11D, NOV 05)

“Work day” is defined as any day Monday through Friday, except Authority designated holidays. Holidays that fall on a Saturday are observed on the Friday before the holiday. Holidays that fall on a Sunday are observed the following Monday.

2 Definite Quantity/Definite Delivery (D-200.01A, AUG 90)

This is a definite quantity/definite delivery (firm-fixed price) contract for the supplies or services specified.

The Authority shall purchase the quantity of supplies or services specified elsewhere in this contract and the Contractor shall deliver them in accordance with the terms and conditions stipulated in this contract.

3 Notice to Proceed (D-200.02A, MAR 02)

The Contractor shall not proceed with any work required under this contract without a written Notice to Proceed from the Authority. Any work performed or expenses incurred by the Contractor prior to the Contractor's receipt of Notice to Proceed shall be entirely at the Contractor's risk.

4 Term of Contract (D-200.03A, JUN 06)

The term of this contract shall be one year from notice to proceed.

DART Form 33D Page 2 of 7 Exhibit D

5 Delivery (D-200.04, JAN 02)

(a) Single Delivery Site (D-200.04C)

The delivery site is located at: 3021 Oak Lane, Dallas, TX 75266.

(b) Delivery Days/Hours (D-200.04G, APR 05)

Unless otherwise agreed to by the parties, delivery shall occur Monday through Friday from 8:00 AM until 5:00 PM local Dallas, Texas, time, except Authority-designated holidays.

(c) Advanced Delivery Notification to the Authority (D-200.04B, AUG, 90)

The Contractor shall notify the Authority Mr. Alexander Higson via email at AHigson@dart.org 48 hours in advance of each delivery.

(f) Delivery F.O.B. Destination (D-200.04K, AUG 90)

All deliveries shall be made F.O.B. destination, within the Authority's premises. The term "F.O.B.

destination, within the Authority's premises," as used in this clause, means free of expense to the Authority delivered and laid down within the doors of the Authority's premises, including delivery to specific rooms within a building if so specified. The Contractor shall –

(1) pack and mark the shipment to comply with specifications; or if the specifications do not contain specific packing or marking instructions, pack and mark the shipment in accordance with prevailing commercial practices and in such a manner to as sure delivery in good condition and as required by this contract;

(2) prepare and distribute commercial bills of lading;

(3) deliver the shipment in good order and condition to the point of delivery specified in the contract;

(4) be responsible for any loss of and/or damage to the goods occurring before receipt of the shipment by the Authority at the delivery point specified in the contract;

(5) furnish a delivery schedule and designate the mode of delivering carrier; and

(6) pay and bear all charges to the specified point of delivery.

6 Invoicing and Payment (D-200.07A, JUN 01)

(a) Invoices may be submitted once per month to:

DART

Accounts Payable APInvoices@dart.org and shall conform to policies or regulations adopted from time to time by the Authority. Invoices shall be legible and shall contain, as a minimum, the following information: (1) the contract and order number (if any); (2) a complete itemization of all costs including quantities ordered and delivery order numbers (if any); (3) any discounts offered to the Authority under the terms of the contract; (4) evidence of the acceptance of the supplies or services by the Authority; (5) unique traceable invoice number(s); and (6) any other information necessary to demonstrate entitlement to payment under the terms of the contract.

Failure to provide the above critical information may result in the rejection and return of the invoice for resubmission with complete data.

mailto:AHigson@dart.org mailto:APInvoices@dart.org

DART Form 33D Page 3 of 7 Exhibit D

(b) Subject to the withholding provisions of the contract, payment shall be made within Normally 30 days after the Authority's receipt of a properly prepared invoice.

7 Insurance Requirements for Supply/Services Contracts (D-200.08A, MAR 02)

(a) Required Coverage. The Contractor shall, at all times during the term of this contract and extended terms thereof, provide and maintain the following types of insurance protecting the interests of the Authority and the Contractor with limits of liability not less than those specified below.

1) Commercial Automobile Liability insurance or its equivalent, listing DART as an additional insured, on primary and non-contributory basis, with waiver of subrogation, covering all owned, hired and non-owned vehicles used in connection with the work performed under this contract with a combined single limit for bodily injury and property damage liability of not less than $1,000,000 per accident. The policy shall be endorsed deleting all exclusions for work performed near a railroad. In the event the contractor will drive or take custody or control of a DART owned vehicle, the insurance policy shall provide physical damage coverage for non-owned autos with a deductible not to exceed $2,500.00.

2) Commercial General Liability insurance or its equivalent, listing DART as an additional insured, on primary and non-contributory basis, with waiver of subrogation, providing limits of not less than $2,000,000 for bodily injury and property damage per occurrence, with a general aggregate of $4,000,000, and products and completed operations aggregate of $4,000,000. The policy shall be endorsed with Additional Insured endorsements for ongoing operations and completed operations performed by or on behalf of the contractor. Contractual Liability Railroads CG 24 17 is required.

The contractor shall maintain this coverage for a period of 3 years following project completion.

There shall not be any policy exclusions or limitations for the following:

Contractual Liability covering Contractor's obligations herein Personal Injury Advertising Liability Medical Payments Fire Damage Legal Liability Broad Form Property Damage Liability for Independent Contractors

3) Workers' Compensation Insurance, providing benefits comparable to those provided under the

Workers' Compensation Act of the State of Texas and/or any other State or Federal law or laws applicable to the Contractor's employees performing work under this contract. Employer's Liability Insurance with limits of liability of not less than $1,000,000 each accident, $1,000,000 each employee for disease and $1,000,000 policy limit for disease. This insurance shall be endorsed with a Waiver of Subrogation Endorsement, waiving the carrier's right of recovery under subrogation or otherwise from DART and from any other entities as requested by DART.

(b) Certificates of Insurance. Before commencing execution of this contract, the Contractor shall respond to insurance related questions and attach a certificate of insurance satisfactory to the Authority (or, as and when the Authority may direct, copies of the actual insurance policies) in the Questions section of the Supplier Portal, as follows:

• Go to https://suppliers.dart.org

• Login

• Click on “Update Account Information” https://suppliers.dart.org/

DART Form 33D Page 4 of 7 Exhibit D

• Under Questions section, click Answer

The certificates of insurance shall evidence insurance required by paragraph (a), stating policy number, dates of expiration, and limits of liability thereunder. The certificates shall also attach all relevant endorsements required in subparagraphs to (a), and shall be acceptable to the Authority.

(c) Approval of Forms and Companies. All coverage described in this contract shall be in a form and content satisfactory to the Contracting Officer. All insurance should be provided by insurance companies with a Best's Rating of A-/ VIII, or better.

(d) Additional Insured Endorsement. The policy or policies providing Commercial Automobile Liability and Commercial General Liability shall be endorsed to name DART, its directors, officers, representatives, agents and employees, as well as any other interests directed by DART, as Additional Insureds under this contract.

(e) All policies shall be endorsed to provide thirty (30) days advanced written notice of policy cancellation or modification.

(f) Multiple Policies. The limits of liability as required above may be provided by a single policy of insurance or a combination of primary, excess or umbrella liability policies. But in no event shall the total limit of liability of any one occurrence or accident be less that the amount shown above.

(g) Deductibles. Companies issuing the insurance policies and the Contractor shall have no recourse against the Authority for payment of any premiums or assessments for any deductibles, as all such premiums and deductibles are the sole responsibility and risk of the Contractor.

(h) Subcontractors. If any part of the work is sublet, Contractor shall require any and all subcontractors performing work under this contract to carry insurance in accordance with paragraph (a) (1), (a) (2), (a) (3), and (a) (4) above. The Contractor shall determine any other types of insurance and the limits of liability that Contractor shall deem appropriate and adequate to protect the interests of the Authority. In the event a subcontractor is unable to furnish any insurance required under this Contract, the Contractor shall endorse the subcontractor as an Additional Insured or become an Alternate Employer. The Contractor shall obtain and furnish to the Authority certificates of Insurance evidencing subcontractors' workers' compensation insurance coverage. All other insurance certificates for subcontractors shall be furnished to the Authority upon request.

(i) No Release. The carrying of the above-described coverage shall in no way be interpreted as relieving the Contractor of any other responsibility or liability under this agreement or any applicable law, statute, regulation or order.

8 Manufacturer’s Warranty (D-200.12A, JAN 02)

Any and all standard manufacturer’s warranties shall accrue to the benefit of the Authority. The manufacturer’s warranties referenced herein shall be in addition to any contractual remedies set forth in this contract, and in addition to any and all other statutory remedies or warranties imposed on the Contractor for the benefit of the Authority.

9 Motor Vehicle Safety Standards (D-200.10A, AUG 90)

The Contractor shall ensure that the items purchased under this contract will comply with the Motor Vehicle Safety Standards as established by the Department of Transportation 49 CFR (Code of Federal Regulations) Parts 390 and 571.

DART Form 33D Page 5 of 7 Exhibit D

10 Title (D-200.10B, AUG 90)

(a) Within 30 days of the Contractor's receipt of payment for each item purchased under this contract, the Contractor shall provide adequate documents for securing title of each item in the name of the Dallas Area Rapid Transit Authority.

(b) The title shall be free and clear of all liens, mortgages and encumbrances, financing statements, security agreements, claims and demands of any character.

11 Certificate of Conformance (6-203.13, JUN 86)

(a) When authorized in writing by the Contracting Officer, the Contractor shall ship with a Certificate of Conformance any supplies for which the contract would otherwise require inspection at source. In no case shall the Authority's right to inspect supplies under the inspection provisions of this contract be prejudiced. Shipments of such supplies will not be made under this contract until use of the Certificate of Conformance has been authorized in writing by the Contracting Officer or inspection and acceptance have occurred.

(b) The Contractor's signed certificate shall be attached to or included on the top copy of the inspection or receiving report distributed to the Authority. In addition, a copy of the signed certificate shall be attached to or entered on copies of the inspection or receiving report accompanying the shipment.

(c) The Authority has the right to reject defective supplies or services within a reasonable time after delivery by written notification to the Contractor. The Contractor shall in such event promptly replace, correct, or repair the rejected supplies or services at the Contractor's expense.

(d) The certificate shall read as follows:

"I certify that on <___[a]____> [insert date], the <___[b]____> [insert Contractor's name] furnished the supplies or services called for by Contract No. <___[c]____> via <___[d]____> [insert Carrier] on <___[e]____> [identify the bill of landing or shipping documents] in accordance with all applicable requirements. I further certify that the supplies or services are of the quality specified and conform in all respects with the contract requirements, including specifications, drawings, testing, preservation, packaging, packing, marking requirements, and physical item identification (part number), and are in the quantity shown on this or on the attached acceptance document."

Date of Execution:<___[f]____> Signature: <___[g]____> Title: <___[h]____>

12 Five Star Customer Service (D-700.01, APR 15)

As part of DART’s Five Star Customer Service initiative, we strive to create exemplary and distinctive interactions and experiences for our customers and the communities within which we provide mass transportation services. We aim to provide vehicles, facilities, security, technology, communications and services that are world class. As a Contractor with DART, we look to you via the supply of these specified services and/or materials to help us achieve our goal of extraordinary customer service.

13 U.S. Department of Homeland Security’s E-Verify System (D-700.02, APR 15)

By entering into this Contract, the Contractor certifies and ensures that it utilizes and will continue to utilize, for the term of this Contract, the U.S. Department of Homeland Security’s E-Verify system to determine the eligibility of:

1. All persons employed to perform duties within Texas, during the term of the Contract; and

2. All persons (including subcontractors) assigned by the Respondent to perform work pursuant to the Contract, within the United States of America.

DART Form 33D Page 6 of 7 Exhibit D

The Contractor shall provide, upon request of DART, an electronic or hardcopy screenshot of the confirmation or tentative non-confirmation screen containing the E-Verify case verification number for attachment to the Form I-9 for the three most recent hires that match the criteria above, by the Contractor, and Contractor’s subcontractors, as proof that this provision is being followed.

If this certification is falsely made, the Contract may be immediately terminated, at the discretion of the Authority and at no fault to the Authority, with no prior notification. The Contractor shall also be responsible for the costs of any re-solicitation that the Authority must undertake to replace the terminated Contract.

14. Payment Bonds (5-303, OCT 24)

1. Payment Bond. The Contractor shall provide a Payment Bond if the contract amount exceeds $25,000.

2. The bond(s) shall be solely for the protection of the Authority to cover any financial risk(s) associated to direct and indirect contract payment bond beneficiaries. If permitted by the solicitation and contract, the Contracting Officer may reduce the amount of the bond as work is completed if such officer determines in writing that such reduction is in the best interest of the Authority.

3. All required bonds shall follow and be provided on the Exhibit Q (Payment Bond) forms accompanying the solicitation in an amount equal to one hundred percent (100%) of the contract amount.

The surety company providing the bonds must be authorized to do business in the State of Texas. The surety company shall be approved for the amount of the bonds and, either hold a certificate of authority from the U.S. Department of Treasury or have obtained reinsurance from a Treasury listed insurer, in accordance with the requirements of Texas Government Code, Chapter 2253.021, as amended.

4. The Contractor shall be required to submit all required bonds within ten (10) days from the date of Notice of Award.

15. Tariffs and Duties

Unless otherwise provided in this contract, the contract price includes all applicable Federal, State, local taxes, tariffs, duties, and related import fees.

1. The Contractor represents that all unit prices for goods and materials furnished under this contract imported from outside of the United States include all applicable taxes, tariffs, duties, and related import fees in effect on the contract date.

2. At the time of each shipment for goods and materials required for the performance of this contract, the Contractor shall furnish the Authority with proof of customs entry documentation (https://www.cbp.gov/sites/default/files/assets/documents/2023- Nov/CBP%20Form%207501.pdf or equivalent), commercial invoices, and packing lists evidencing payment of all duties, tariffs, and fees imposed on imported goods and materials.

3. Unless the contract explicitly provides otherwise, the Contractor will not be reimbursed by the Authority for applicable taxes, duties, tariffs or related import charges on goods and materials required for the performance of this contract that are in effect on the contract date. The Contractor agrees all such charges are already included in the contract price.

4. If, after the contract date, new or increased applicable federal, state, local tax, tariffs, or duties, which were previously excluded on the contract date, is imposed on goods or materials required for the performance of this contract that the Contractor is now required to pay or bear as the result of legislative, judicial, or administrative action taking effect after the contract date, the Contractor may submit a request for an Equitable Adjustment, provided Contractor state in writing that:

(a) The contract price does not include any contingency for such tax, tariffs, or duties; and https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.cbp.gov%2Fsites%2Fdefault%2Ffiles%2Fassets%2Fdocuments%2F2023-Nov%2FCBP%2520Form%25207501.pdf&data=05%7C02%7COGarcia-Benavides%40dart.org%7C1f4297480938401d7cfa08ddae86b682%7C4bdf42008d79408b940dbdc4a1c9bfaa%7C0%7C0%7C638858615794047900%7CUnknown%7CTWFpbGZsb3d8eyJFbXB0eU1hcGkiOnRydWUsIlYiOiIwLjAuMDAwMCIsIlAiOiJXaW4zMiIsIkFOIjoiTWFpbCIsIldUIjoyfQ%3D%3D%7C0%7C%7C%7C&sdata=Pw6jiNyug2242%2FzLhNpTiD96Oz3QVwpGcZ1qbQ%2F6dx0%3D&reserved=0 https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.cbp.gov%2Fsites%2Fdefault%2Ffiles%2Fassets%2Fdocuments%2F2023-Nov%2FCBP%2520Form%25207501.pdf&data=05%7C02%7COGarcia-Benavides%40dart.org%7C1f4297480938401d7cfa08ddae86b682%7C4bdf42008d79408b940dbdc4a1c9bfaa%7C0%7C0%7C638858615794047900%7CUnknown%7CTWFpbGZsb3d8eyJFbXB0eU1hcGkiOnRydWUsIlYiOiIwLjAuMDAwMCIsIlAiOiJXaW4zMiIsIkFOIjoiTWFpbCIsIldUIjoyfQ%3D%3D%7C0%7C%7C%7C&sdata=Pw6jiNyug2242%2FzLhNpTiD96Oz3QVwpGcZ1qbQ%2F6dx0%3D&reserved=0

DART Form 33D Page 7 of 7 Exhibit D

(b) The liability for such was not incurred through the Contractor’s fault, negligence, or failure to follow instructions of the Contracting Officer.

The Contractor shall also submit adequate customs entry documentation or equivalent, itemizing the new applicable federal, state, local tax, tariffs, duties, or import fees the Contractor must pay. Any such equitable adjustment request shall be negotiated and, if agreed, incorporated via a contract modification under the Equitable Adjustments and/or Change Orders provisions of the contract. No adjustment shall be made in the contract price under this clause unless the amount of the adjustment exceeds $250.

5. The Contractor agrees the contract price shall be decreased by the amount of any federal, state, local taxes, tariffs, duties, or related import fees for which the Contractor obtains a refund or drawback, as the result of legislative, judicial, or administrative action taking effect after the contract date.

6. The Contractor agrees that the contract price shall be decreased by the amount of any federal, state, local taxes, tariffs, duties, or related import fees that the Contractor does not obtain a refund of, through the Contractor’s fault, negligence, or failure to follow instructions of the Contracting Officer.

7. The Contractor shall promptly notify the Contracting Officer of all matters relating to any federal, state, local taxes, tariffs, duties, or related import fees that reasonably may be expected to result in either an increase or decrease in the contract price and shall take appropriate action as the Contracting Officer directs.

8. The Authority shall, without liability, furnish evidence appropriate to establish exemption from any federal, state, or local tax, tariffs, duties, or related import fees when the Contractor requests such evidence and reasonable basis exists to sustain the exemption.

9. The Authority reserves the right to audit all customs and import records related to this contract under the Examination and Retention of Records provision of the contract to verify accuracy of all Contractor declared tariffs/duties and compliance with this clause.