8-06 - Exhibit D - 33D.pdf

Solicitation No. B-2094260

DART Form 33D Page 1 of 8 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 OPTION TO EXTEND TERM (6-303.02, FEB 04)

6 DELIVERY (D-200.04, JAN 02)

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

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

9 ADJUSTMENT AND CLEANING (D-200.14A, AUG 90)

10 COMMUNICATIONS (D-200.21B, JAN 02)

11 CONTRACT IDENTIFICATION NUMBER (D-200.21A, AUG 04)

12 DRUG AND ALCOHOL TESTING, NON-CONSTRUCTION (D-200.22A, APR 02)

13 INSTALLATION (D-200.13A, JAN 02)

14 KEY PERSONNEL (D-200.25 AUG 04)

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

16 PERMITS, APPROVALS, AND AUTHORIZATIONS FROM PUBLIC ENTITIES (D-200.18B, JUN 01)

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

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

19 DISCLOSURE OF INTERESTED PARTIES (D-700.03, FEB 16)

20 PAYMENT AND PERFORMANCE BONDS LRT (D-400.37A, FEB 02)

21 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) DART Service Area (D-200.11C, SEP 96)

The DART Service Area includes the following thirteen (13) Texas cities: Addison, Carrollton, Cockrell Hill, Dallas, Farmers Branch, Garland, Glenn Heights, Highland Park, Irving, Plano, Richardson, Rowlett, and University Park.

(c) 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.

DART Form 33D Page 2 of 8 Exhibit D

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 18 months.

5 Option to Extend Term (6-303.02, FEB 04)

(a) The Authority may extend the term of this contract by written notice to the Contractor within the time specified in the contract. If feasible, the Authority shall give the Contractor a preliminary written notice of its intent to extend at least 60 days before the contract expires. The preliminary notice does not commit the Authority to an extension, and any absence of notice shall not affect the validity of any exercise of the option to extend the term of this contract.

(b) If the Authority exercises this option, the extended contract shall be considered to include this option provision.

(c) The total duration of this contract, including the exercise of any options under this clause, shall not exceed 24 months.

6 Delivery (D-200.04, JAN 02)

(a) Delivery Period (D-200.04A, AUG 90)

Delivery shall be completed Monday through Friday between 7:00 am to 3:00 pm.

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

The Contractor shall notify the Authority, James Vijjeswarapu - jvijjeswarapu@dart.org in advance of each delivery.

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

The delivery site is located at DART S& I CROF – 3021 Oak Ln., Dallas, TX 75266

(d) 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;

mailto:jvijjeswarapu@dart.org

DART Form 33D Page 3 of 8 Exhibit D

(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.

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

(a) Invoices may be submitted once per month to:apinvoices@dart.org

DART

Accounts Payable P.O. Box 223805 Dallas, Texas 75222-3805 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.

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

8 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 $2,000,000 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 $5,000,000 for bodily injury and property damage per occurrence, with a general aggregate of $5,000,000, and products and completed operations aggregate of $5,000,000. 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 mailto:apinvoices@dart.org

DART Form 33D Page 4 of 8 Exhibit D

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.

4) Professional Liability – The contractor shall provide Professional Liability insurance with limits of no less than $1,000,000 per claim. Coverage is to remain in effect for the entire duration of the contract and two years after contract expiration date.

(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”

• 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 https://suppliers.dart.org/

DART Form 33D Page 5 of 8 Exhibit D 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.

9 Adjustment and Cleaning (D-200.14A, AUG 90)

(a) The Contractor shall clean exposed surfaces of all grease, oil, dirt, and other foreign matter and remove all packaging materials.

(b) The Contractor shall at all times keep the work area, including storage areas, free from accumulations of waste materials. Before completing the work, the Contractor shall remove from the work area and premises any rubbish, tools, scaffolding, equipment, and materials that are not the property of the Authority. Upon completing the work, the Contractor shall leave the work area in a clean, neat and orderly condition satisfactory to the Authority. Dumpsters will not be provided by the Authority.

10 Communications (D-200.21B, JAN 02)

(a) Official communications in connection with this Contract shall be in writing and delivered either personally, by facsimile, or by regular, registered or certified mail addressed to the assigned DART Contract Specialist. Telephone calls may be used to expedite communications, but they shall not be considered "official" unless confirmed in writing.

(b) A communication shall be deemed to have been "received" when it is in the actual possession of the person to whom it is addressed or that person's designated agent. For purposes of fixing the date and time of actual receipt, that date and time shall be placed on the communication and become part of the communication for the record.

11 Contract Identification Number (D-200.21A, AUG 04)

The contract number shown on the Solicitation, Offer and Award Form , shall be clearly displayed on all correspondence, invoices and submittals.

12 Drug and Alcohol Testing, Non-Construction (D-200.22A, APR 02)

(a) The Contractor agrees to establish and implement a drug and alcohol testing program that complies with 49 CFR Parts 40 and 655, produce any documentation necessary to establish its compliance with Parts 40 and 655, and permit any authorized representative of the United States Department of Transportation or its operating administrations, the State of Texas, or the Authority, to inspect the facilities and records associated with the implementation of the drug and alcohol testing program as required under 49 CFR Parts 40 and 655, and review the testing process. The Contractor agrees further to certify annually its compliance with Parts 40 and 655, and to submit the required Management Information System (MIS) reports. The certification and MIS reports shall be sent to the Contracting Officer not later than February 15 following the covered calendar year. To certify compliance the Contractor shall use the "Substance Abuse Certifications" in the "Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements," which is published annually in the Federal Register.

(b) In addition to the annual reporting requirement, the Contractor agrees to submit quarterly MIS reports.

Except for the quarter that coincides with the annual reporting date, these reports shall be sent to the Contracting Officer at the end of each calendar quarter, but not later than April 15, July 15, and October 15, respectively.

(c) Failure to comply with the provisions of this clause may require action in accordance with the

DART Form 33D Page 6 of 8 Exhibit D

"Termination" clause of the General Provisions.

13 Installation (D-200.13A, JAN 02)

(a) The Contractor shall completely install, ready for use, 600-ton Double-Ended (Dual-Cylinder) Mounting/Demounting Wheel Press Machine.

(b) The Contractor shall deliver, assemble and install items in accordance with the manufacturer's recommendations and best commercial practices.

(c) The Authority shall prepare the installation site at its own expense including the furnishing of commercial power, the necessary environment and the access necessary to install and maintain the 600-ton Double-Ended (Dual-Cylinder) Mounting/Demounting Wheel Press Machine.

14 Key Personnel (D-200.25 AUG 04)

The Contractor shall not remove or reassign any key personnel, without submitting a written request to and obtaining written consent from the Contracting Officer prior to taking such action. However, the Contractor shall, if requested to do so by the Contracting Officer, remove or reassign any key personnel not acceptable to the Authority. For performance of this contract the key personnel are those persons whose names are specified in the Contractor’s proposal.

15 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.

16 Permits, Approvals, and Authorizations from Public Entities (D-200.18B, JUN 01)

Upon request of the Contracting Officer, the Architect-Engineer shall assist in applying for and obtaining permits, approvals or authorizations from public entities having jurisdiction over the project. The Architect- Engineer shall make such supplementary or clarifying drawings or specifications needed for obtaining of all such permits, approvals or authorizations at no additional cost to the Authority.

17 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.

18 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.

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.

DART Form 33D Page 7 of 8 Exhibit D

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.

19 Disclosure of Interested Parties (D-700.03, FEB 16)

As a condition for Contract award, the bidder or offeror selected for award in accordance with Texas Government Code, Section 2252.908, shall submit within 5 days of notification of Board approval a Disclosure of Interested Parties form electronically on the Texas Ethics Commission website and a signed notarized copy of the form to the Authority.

The Disclosure of Interested Parties form must be submitted as prescribed by the Texas Ethics Commission located at: https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm

20 Payment and Performance Bonds LRT (D-400.37A, FEB 02)

The Contractor shall include only the actual costs of payment and performance bonds in the line item on the Schedule. The Contractor will be paid the lesser of its line item bid amount or the actual cost of the bonds. The Authority will not consider any amount in excess of the actual costs of these bonds. The Authority reserves the right to request documentation from the Contractor as to the amounts actually paid for these bonds.

21 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

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 https://www.ethics.state.tx.us/whatsnew/elf_info_form1295.htm 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 8 of 8 Exhibit D 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.