sample_contract.pdf

ACKNOWLEDGEMENT

It is hereby acknowledged that an agreement has been reached between METRO Regional Transit Authority (the “Authority”) and TBD Inc. (the “Provider”) this 23rd day of February, 2021, wherein the parties agree to a contract for the services or goods as set forth in the following described documents hereto:

Resolution No. xxxx-xx (Payroll)

The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than ten (10) calendar days from receipt of payment from METRO. The prime contractor shall also return any retainage payments to the subcontractor within ten (10) calendar days after the subcontractor’s work is satisfactorily completed.

The provisions contained in the “legal notice,” the information for bidders,” the proposal,” the bond”, “the specifications” and “Addendums” are hereby also embodied as a part of this Agreement, to the extent those documents are consistent with the documents described in the first paragraph hereof.

Liquidated Damages Service and Deliverables

If the Contractor fails to deliver the supplies or perform the services within the time specified in this contract, or any extension, the Contractor shall, in place of actual damages, pay to METRO RTA as fixed, agreed, and liquidated damages, for each calendar day of delay, the sum set forth below in the clause entitled Schedule of Liquidated Damages as “liquidated damages."

Alternatively, if delivery or performance is inexcusably delayed by the Contractor, METRO RTA may terminate this Contract in whole or in part under the Termination for Default Clause of this Contract and assess fixed, agreed, and liquidated damages accruing until the time METRO RTA may reasonably obtain delivery or performance of similar supplies or services. The liquidated damages shall be in addition to excess costs under the Termination for Default Clause of this Contract.

The amount of liquidated damages provided in this Contract is neither a penalty nor a forfeiture and shall compensate METRO RTA solely for METRO RTA's inability to use the supplies or services and is not intended to, and does not, include: (i) any damages, additional costs or extended costs incurred by METRO RTA for extended administration of this Contract or by METRO RTA's agents, consultants, or independent contractors for extended administration of this Contract, (ii) any increases in financing costs resulting from the delay, or (iii) any additional services relating to, or arising as a result of, the delay. METRO RTA shall be entitled to claim against the Contractor for its actual damages and amounts not specifically included within the liquidated damages as set forth herein. Such costs shall be computed

Sample separately. Together with liquidated damages, they shall be deducted from the contract price.

The Contractor shall not be charged with liquidated damages when the delay in delivery or performance arises out of causes beyond the control and without the fault or negligence of the Contractor as defined in the Termination for Default Clause in this Contract.

Liquidated damages shall not exceed 10 percent of the total Contract cost, and will be excused if the delay is due to a cause beyond Contractor's control and which is not reasonably foreseeable at the time proposals are received by METRO RTA. By submission of proposals in this procurement, Proposer concurs that this sum is a reasonable estimate of actual damages, and agree to be contractually bound by this liquidated damages clause.

Schedule of Liquidated Damages

In the event of delay in the completion of deliverables beyond the dates/schedule as finally agreed upon, Contractor will be liable for liquidated damages of (insert amount and time period here)

These damages shall be deducted from any monies due, or which may thereafter become due, to the Contractor under this Contract and/or any future contracts.

METRO RTA will notify contractor 14 days in advance of the date that liquidated damages will occur.

Excusable Delays for Liquidated Damages

Except for defaults of subcontractors at any tier, the Contractor shall not be in default because of any failure to perform this Contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor.

Examples of these causes are (1) acts of God or of the public enemy, (2) acts of METRO RTA in either its sovereign or contractual capacity, (3) fires, (4) floods,

(5) epidemics, (6) pandemics, (7) quarantine restrictions, (8) strikes, (9) freight embargoes, and (10) unusually severe weather. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the Contractor. "Default" includes failure to make progress in the work so as to endanger performance.

If the failure to perform is caused by the failure of a subcontractor at any tier to perform or make progress, and if the cause of the failure was beyond the control of both the Contractor and subcontractor and without the fault or negligence of either, the Contractor shall not be deemed to be in default, unless:

1. The subcontracted supplies or services were obtainable from other sources;

2. The Contracting Officer ordered the Contractor in writing to purchase these supplies or services from another source; and

3. The Contractor failed to comply reasonably with this order.

Upon the request of the Contractor, the Contract Administrator shall ascertain the facts and extent of the failure. If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of METRO RTA under the Termination Clauses of this contract.

Liquidated Damages Construction

If the Contractor fails to deliver the supplies or perform the services within the time specified in this contract, or any extension, the Contractor shall, in place of actual damages, pay to METRO RTA as fixed, agreed, and liquidated damages, for each calendar day of delay, the sum set forth below in the clause entitled Schedule of Liquidated Damages as “liquidated damages."

Alternatively, if delivery or performance is inexcusably delayed by the Contractor, METRO RTA may terminate this Contract in whole or in part under the Termination for Default Clause of this Contract and assess fixed, agreed, and liquidated damages accruing until the time METRO RTA may reasonably obtain delivery or performance of similar supplies or services. The liquidated damages shall be in addition to excess costs under the Termination for Default Clause of this Contract.

The amount of liquidated damages provided in this Contract is neither a penalty nor a forfeiture and shall compensate METRO RTA solely for METRO RTA's inability to use the supplies or services and is not intended to, and does not, include: (i) any damages, additional costs or extended costs incurred by METRO RTA for extended administration of this Contract or by METRO RTA's agents, consultants, or independent contractors for extended administration of this Contract, (ii) any increases in financing costs resulting from the delay, or (iii) any additional services relating to, or arising as a result of, the delay. METRO RTA shall be entitled to claim against the Contractor for its actual damages and amounts not specifically included within the liquidated damages as set forth herein. Such costs shall be computed separately. Together with liquidated damages, they shall be deducted from the contract price.

The Contractor shall not be charged with liquidated damages when the delay in delivery or performance arises out of causes beyond control and without the fault or negligence of the Contractor as defined in the Termination for Default Clause in this Contract.

Liquidated damages shall not exceed 10 percent of the total Contract cost and will be excused if the delay is due to a cause beyond Contractor's control and which is not reasonably foreseeable at the time proposals are received by METRO RTA. By submission of proposals in this procurement, Proposer concurs that this sum is a reasonable estimate of actual damages and agree to be contractually bound by this liquidated damages clause.

Schedule of Liquidated Damages

In the event of delay in the completion of deliverables beyond the dates/schedule as finally agreed upon, Contractor will be liable for liquidated damages per calendar day per incident.

These damages shall be deducted from any monies due, or which may thereafter become due, to the Contractor under this Contract and/or any future contracts.

METRO RTA will notify contractors 14 days in advance of the date that liquidated damages will occur.

Project Size Range (Per Day) < $5M $500 – $2,000 $5M–$25M $2,000 – $5,000 $25M–$100M $5,000 – $15,000 >$100M $15,000 – $50,000+

Excusable Delays for Liquidated Damages

Except for defaults of subcontractors at any tier, the Contractor shall not be in default because of any failure to perform this Contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor.

Examples of these causes are (1) acts of God or of the public enemy, (2) acts of METRO RTA in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics,

(6) pandemics, (7) quarantine restrictions, (8) strikes, (9) freight embargoes, and (10) unusually severe weather. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the Contractor. "Default" includes failure to make progress in the work so as to endanger performance.

If the failure to perform is caused by the failure of a subcontractor at any tier to perform or make progress, and if the cause of the failure was beyond the control of both the Contractor and subcontractor and without the fault or negligence of either, the Contractor shall not be deemed to be in default, unless:

1. The subcontracted supplies or services were obtainable from other sources;

2. The Contracting Officer ordered the Contractor in writing to purchase these supplies or services from another source; and

3. The Contractor failed to comply reasonably with this order.

Upon the request of the Contractor, the Contract Administrator shall ascertain the facts and extent of the failure. If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of METRO RTA under the Termination Clauses of this contract.

Liquidated Damages Fuel

Continuity of supply is of the essence. METRO RTA will be damaged if fuel availability is not timely.

Bulk Fuel

Timely fuel availability (and subsequent deliveries) is defined as deliveries required to keep METRO RTA combined bulk Fuel aboveground storage tanks located at 416 Kenmore Blvd. Akron, Ohio 44301 at above 23% capacity.

As stated in Deliveries and Fuel Hauling, fuel deliveries are required to keep tanks at 416 Kenmore Blvd. Akron, Ohio 44301 at above 23% capacity. 23% capacity is that level at which METRO RTA can ensure adequate fuel for meeting at least one day of operating requirements. Should METRO RTA be unable to fuel revenue vehicles, and therefore unable to place vehicles into revenue service, due to fuel being unavailable from Contractor, damages will result from (1) loss of revenue in the amount of $250.00 per bus per day and (2) loss due to public inconvenience and internal administrative expenses resulting from METRO RTA’s inability to provide service.

Consequently, for each bus that METRO RTA is unable to place into revenue service at the time said bus is scheduled to depart due to lack of fuel, Contractor shall pay METRO RTA a sum of $250.00 per bus per day in liquidated damages.

METRO RTA may withhold liquidated damages from any payments owned to Contractor under this Contract. Contractor acknowledges that it could have contested the reasonableness of the amount of liquidated damages prior to bid opening by following the procedure for requesting clarifications set forth in the invitation for bids.

If Provider is a corporation, it is attested that the individual executing this Acknowledgement has the full power and authority to bind that corporation. In witness whereof, the Authority has authorized its’ Executive Director to execute this Agreement on the 23rd day of February, 2021.

TBD METRO REGIONAL TRANSIT AUTHORITY

BY: _____________________________ BY: ________________________________

Name Dawn Distler Title Chief Executive Officer/Secretary-Treasurer

CERTIFICATE OF ASSURANCE

I hereby certify that there are sufficient funds to discharge METRO Regional Transit Authority’s obligation under this contract. It is authorized by Resolution No. xxxx-xx

Angela Neeley - Chief Financial Officer Sample